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.
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.
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 firstname.lastname@example.org.