How Well Do You Know GINA?

Employment Provisions of Genetic Information Nondiscrimination Act Becomes Effective November 21, 2009

Even if you have never contemplated using genetic testing for your employees, you need to take note of the Genetic Information Nondiscrimination Act of 2008 (GINA). The definition of genetic information is much broader than you might think and will further limit the types of questions you can ask your employees, whether in a pre-employment physical or in everyday conversation. On November 21, 2009, Title II of GINA, which impacts how employers handle the genetic information of their employees, will become effective. Employers should take some practical steps now to become compliant with this new law.

Congress enacted GINA because of concerns that advances in the field of genetics could lead to the misuse of genetic information to discriminate in employment and health insurance. GINA's prohibitions are similar to those found in Title VII. The Equal Employment Opportunity Commission (EEOC) has published proposed regulations implementing GINA. Under these proposed regulations, an employer is prohibited from discriminating against an employee because of the employee's genetic information or the genetic information of the employee's family members. This includes discrimination in a wide range of employment practices, including hiring, promotion and demotion, seniority, discipline, termination, compensation, and the terms and conditions of employment. Employers also may not limit, segregate, or classify employees because of genetic information or retaliate against them for opposing practices that violate GINA. GINA also strictly limits employers from disclosing an employee's genetic information to others and sets forth requirements for the proper storage of such information. Finally, with a few narrow exceptions, GINA prohibits employers from deliberately acquiring or gathering an employee's genetic information. The regulations clarify, however, that GINA is not violated if an employer inadvertently acquires genetic information by overhearing an employee's conversation, or by asking about the general health of an employee or an employee's family member. This protects an employer who accidentally learns genetic information as a result of engaging employees in everyday general conversation.

Due to GINA's broad definition of genetic information, all employers need to be concerned with its provisions—not just employers who have required employees to undergo genetic tests. GINA’s definition of genetic information includes, among other things, an employee's genetic tests and the genetic tests of an employee's family members through the fourth degree. Thus, employers cannot ask their employees for the results of their family members’ genetic tests any more than they can require employees to undergo the tests in the first place. More importantly, genetic information also includes the manifestation of diseases or disorders in an employee's family. This means that an employee's family medical history is also considered genetic information under GINA. In other words, employers cannot request family medical histories from their employees—even when the collection of the information is associated with an otherwise valid medical examination.

In light of these prohibitions, employers need to take steps to comply with GINA's requirements. Employers should revise their handbooks to include prohibitions against discrimination because of genetic information and train their supervisors about the meaning of genetic information under this new law. Employers requiring employees to obtain physical examinations must not include any questions about an employee's family medical history in these examinations. Also, the EEOC's proposed regulations provide that if an employee is required to obtain documentation from a health care provider regarding a disability or accommodation request, that an employer's medical paperwork used for this purpose should expressly exclude family medical history or other genetic information from collection. As with other medical information, employers must also store an employee's genetic information in a confidential file separate from the employee's personnel file. Finally, employers should not disclose genetic information during litigation unless a court order specifically requires genetic information to be disclosed.

If you would like to learn more about GINA or have any questions about this new law, please contact Tami Earnhart or another member of Ice Miller LLP's Labor and Employment Practice Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.