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Genetic Information Nondiscrimination Act Adds New Prohibitions For Employers The employment provisions of the Genetic Information Nondiscrimination Act (“GINA”) of 2008 went into effect on November 21, 2009. GINA was enacted, in large part, to protect employees from adverse employment actions or health coverage-related actions due to genetic information obtained from a medical test or research-based study. Title II of GINA prohibits the use of genetic information in employment, prohibits the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements. According to the EEOC’s proposed regulations, in describing the prohibited practices under GINA Title II, Congress adopted language similar to that used in Title VII and other equal employment statutes, evincing its intent to prohibit discrimination with respect to a wide range of employment practices, including hiring, promotion and demotion, seniority, discipline, termination, compensation, and the terms, conditions, and privileges of employment. Not only does GINA prohibit an employer from discriminating on the basis of an employee or applicant’s genetic information, but also based on the genetic information of a family member. GINA does not limit the definition of “family member” to blood relatives: family members are spouses, dependent children (even if the child is adopted), parents, grandparents and great-grandparents. “Genetic information” includes information about an individual’s genetic tests, genetic tests of a family member, and family medical history. It does not include an individual’s age or sex or that of his or her family members. “Genetic information” also does not include information about a current disease or disorder or tests for alcohol or drug use. Employers are required to keep genetic information confidential, in much the same way employers are required to keep any medical information they learn about an employee confidential. Employers are protected from the inadvertent acquisition of genetic information. The so-called “water cooler” exemption says it is not a violation of GINA if a supervisor inadvertently overhears an employee discussing his or her genetic information, or where an employer obtains genetic information through a lawful request for medical information made during the process of providing an employee a reasonable accommodation under the Americans with Disabilities Act. Also, an employer will not be penalized for obtaining genetic information through publicly-available sources, such as newspapers or other media. With regard to its health care provisions, GINA provides that health care plans cannot require a plan participant to undergo a genetic test to be eligible for coverage under the plan. In this regard, GINA specifically amends HIPAA by adding the category of genetic information to the health-related information that is protected. With regard to employer or union-sponsored health plans, GINA also amends ERISA to add new enforcement provisions under which the Department of Labor may impose monetary penalties for violations of GINA. These penalties can be as much as $100 per day for noncompliance. However, the crux of GINA is its anti-discrimination in employment provisions. Ostensibly, these will operate much the same as the anti-discrimination provisions in other statutes—an aggrieved applicant or employee may seek reinstatement, hiring, promotion, back pay, injunctive relief, compensatory and punitive damages and attorneys’ fees and costs. Punitive damages are not permitted against government employers. GINA currently does not allow for disparate impact claims. The EEOC has issued proposed regulations on the interpretation of GINA with respect to its employment-related provisions. The EEOC has also issued a supplement to its “EEO is the Law” poster. The supplement adds a section on genetics, detailing the anti-discrimination provisions of GINA. Click here to access the supplement and the November 2009 version of the poster. Employers should add “genetic information” to their anti-discrimination policies and be vigilant that such information is not being sought by managers. As with other anti-discrimination laws, being proactive in discouraging genetic information discrimination will be an employer’s best defense should an employee lodge a genetic information discrimination claim. © 2010 Kiesewetter Wise Kaplan Prather, PLC |
