The HR Specialist

5 steps for complying with new GINA law

01/19/2010

by Judith Bevis Langevin and Bryan Seiler, Esqs.

The Genetic Information Nondiscrimination Act of 2008 (GINA) took effect on Nov. 21, 2009. It was enacted in response to concerns that insurers and employers could use results of genetic testing to discriminate against applicants and employees.

Collection of genetic information

GINA makes it an unlawful employment practice for an employer or other covered entity—such as a health insurance company—to “request, require or purchase genetic information with respect to an employee or family member of the employee.” (As used in the statute, the term “employee” includes applicants.)

There are limited exceptions:

  • Inadvertent requests (the so-called “water cooler” exception)
  • Employer-provided genetic services that keep results confidential
  • Requests related to FMLA leave
  • Information in purchased public documents such as newspaper obituaries
  • Information gained as a result of monitoring the effects of toxic substances in the workplace
  • DNA analysis of employees who do forensic analysis that is done to ensure samples are not contaminated.

Although it’s not illegal to acquire genetic information through these exceptions, it is illegal to use that information to discriminate against an employee.

Use of genetic information

Under GINA, it is illegal to discriminate in hiring, firing or in the terms, conditions or privileges of employment because of an employee’s genetic information. The act prohibits retaliation against anyone who opposes an act or practice prohibited by GINA or who makes a charge, testifies, assists or participates in any manner in an investigation, proceeding or hearing pursuant to GINA.

Disclosure

Employers and other covered entities must treat genetic information as part of a confidential medical record, and must maintain the information in separate forms and files. GINA’s confidential medical record requirements mirror the ADA’s requirements for employment examination results.

In addition, employers may not disclose genetic information concerning an employee unless one of these exceptions applies:

  • To the employee on the employee’s own written request
  • To an occupational or other health researcher for research
  • To public health agencies, if related to a contagious disease
  • To government officials investigating GINA compliance
  • In connection with the employee’s compliance with FMLA (or similar state laws) certification requirements
  • In response to a court order.

Coverage of the law

GINA applies to all employers, employment agencies and labor organizations covered by Title VII. In addition, GINA adopts Title VII’s remedial scheme, with the exception that disparate impact actions are not available. Although a patchwork of state and federal laws already restrict the collection, use and disclosure of genetic information, GINA represents the greatest expansion of employment nondiscrimination law since the Age Discrimination in Employment Act of 1990. Like Title VII, GINA does not pre-empt more-restrictive state laws.

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Authors: Judith Bevis Langevin is chair of Gray Plant Mooty’s Employment Law Practice Group. Bryan Seiler is an associate in the group. Contact them at (612) 632-3234 or judy.langevin@gpmlaw.com.

What employers should do to comply with GINA

Covered employers should consider updating their employment policies and practices to comply with GINA’s many technical requirements. Some practical steps include:

1. Revise your nondiscrimination policies to include genetic information.
Though many state laws regulate genetic information, many employers haven’t yet added genetic information to their lists of protected classes. Employers covered by GINA should make sure their policies explicitly list nondiscrimination on the basis of genetic information.

2. Stop asking for genetic information—including family medical histories—on employment applications and other materials. In reality, few employers still ask for this information, but GINA now makes clear that this practice is forbidden.

3. Avoid asking for genetic information in connection with leave. Employers should modify forms, policies and procedures to ensure they are not requiring the employee to disclose genetic information.

4. Implement confidentiality and disclosure policies. To ensure compliance with GINA, employers should carefully screen information to ensure genetic information is stored in a confidential medical record. In addition, employers must adopt policies and procedures for disclosure in the event of covered exceptions, such as a court order.

5. Ensure that your health and wellness plans comply with GINA. The act provides extensive regulations for employer-provided health or genetic services. Employers must ensure that the entire process—from written authorization to communication of results—complies with GINA.

In addition, employers should post the EEOC’s new poster, “Equal Employment Opportunity Is the Law,” or the supplement to the previous poster. The EEOC is charged with enforcement of Title II of GINA, and final regulations are expected soon.


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