GINA Legislation: More Protection for Employees, More Complexities for Employers
By: KAREN G. SCHANFIELD
July 2008
President Bush signed the Genetic Information Nondiscrimination Act (GINA) into law on May 21, 2008. The law, which had overwhelming support in both houses of Congress, is intended to prevent employers, employment agencies, labor unions, and health insurers from discriminating against individuals based on genetic information. GINA amends various federal laws. As a result, several federal entities, including the Equal Employment Opportunity Commission (EEOC), the Department of Labor, the Secretary of Health and Human Services, and the Secretary of Treasury are tasked with issuing regulations to implement the law. The law becomes effective for insurers on May 21, 2009, and for employers, labor unions, and employment agencies in November 2009.
Many states, including Minnesota, have similar laws. Likewise, federal laws, such as the Health Insurance Portability and Accountability Act (HIPAA) and Title VII of the Civil Rights Act, provide some measure of protection against discrimination on the basis of genetic information. Employers should familiarize themselves with the state and federal laws applicable to their operations and assure that their practices are in compliance with these laws. Only a limited number of claims based on genetic information discrimination have been filed to date, but publicity related to the passage of GINA may serve as a reminder of these rights, particularly to employees facing terminations and layoffs. Although the existing laws vary, a general rule of thumb is to avoid asking employees about the results of genetic testing, requesting employees and applicants to undergo genetic testing, and asking whether a condition runs in the family. Employers should also pay particular attention to the privacy requirements that attach to medical information about employees and their family members.
GINA broadly defines genetic information to include information about an individual’s genetic tests, the genetic tests of the individual’s family members, and the manifestation of a disease or disorder in the individuals’ family members. The law establishes a baseline level of protection for applicants and employees and authorizes states to enact laws granting additional protection. Employers with operations in more than one state will need to analyze their obligations under the new law and integrate those with its obligations under existing and proposed state laws. Similarly, employers will need to analyze and integrate their obligations under related laws, such as FMLA, the ADA, state laws governing time off for sickness, and workers’ compensation laws.
Like Title VII, GINA prohibits discrimination in hiring, termination, and decisions related to compensation, as well as other terms and conditions of employment. It prohibits employers from requesting, requiring, or purchasing genetic information on an employee or the employee’s family members with limited exceptions. When the exceptions apply, the information must be kept on separate forms in separate medical files and be treated as a confidential medical record that can be disclosed only in specific circumstances (e.g. at the employee’s request, pursuant to court order, or to determine compliance with GINA). Genetic information is subject to the privacy requirements of the HIPAA. The law’s remedies are much like those in Title VII: back pay, reinstatement, attorneys’ fees, and compensatory and punitive damages. Retaliation against an individual who brings a claim under GINA is prohibited.
For assistance in reviewing your organization’s existing and future obligations, please contact a Fredrikson & Byron P.A. Employment and Labor attorney.
Takeaway
Employers are advised to avoid asking employees about the results of genetic testing, requesting employees and applicants to undergo genetic testing, and asking whether a condition runs in the family.