GINA: Goddess of Genes

Goddess or not, GINA is the acronym for our latest employment law. GINA (Genetic Information Nondiscrimination Act) was signed by President Bush on May 21 and is indeed supposed to be the goddess of genes, but that remains to be seen. I was amused by a recent news blurb about the new law, predicting that GINA would produce a lot of litigation. You think?

GINA is an important piece of legislation, arguably the first civil rights law of the 21st century. However, until the litigation occurs, we won’t know for sure that the law has accomplished what’s intended: make it possible for employees to have genetic testing done to determine their predisposition to diseases and medical conditions and then take preventive measures without having to worry about losing health insurance or their jobs. Rather than using space to explore the nooks and crannies of GINA (plenty of time for that since, as noted below, the law isn’t immediately effective), I’ll instead highlight what appear to be omens of trouble.

GINA attempts to accomplish its purpose in two ways. First, employers can’t discriminate in any employment practice on the basis of genetic information about an employee or a family member. In other words, you can’t use genetic information to make decisions on hiring, promotions, compensation, firing, etc. This part of the law becomes effective in November, 2009, 18 months after GINA was signed by the President. Second, insurance companies providing group health plans can’t discriminate on the basis of genetic information. Thus, an employee can’t be excluded from a group health plan because of genetic information, and a higher premium can’t be charged based on genetic information. This part of the law becomes effective in May, 2009, 12 months after the President’s signature.

Let’s say one of your employees has a genetic test performed at the end of May, 2009, showing he/she is predisposed to contract diabetes. Somehow, you and your insurance company find out about the test results. Your insurance company can’t exclude the employee from the group plan, but can you fire the employee with impunity between May and November? While the time tables in the law seem to allow for that scenario, don’t do it. You might not be sued under GINA (since you’re not covered by the nondiscrimination provision until November, 2009), but you would be sued under a number of “common law” theories of liability under state laws and perhaps other federal laws.

Other potential trouble spots or litigation possibilities? Of course. Group health insurance companies can’t adjust the premiums charged based on genetic testing. But they can increase the premium based on a “disease or disorder” that one or more employees have. If a couple of your employees have breast cancer, let’s say, the premium can go up because the insurance company decides that it needs more money to cover that disease. The decision to increase the premium has nothing to do with genetic information. It’s based on the fact that two of your employees have a serious, potentially expensive, disease. What if genetic testing generally–not performed on a specific employee–demonstrates that breast cancer will be an increasing risk for women in a particular age range? Your insurance company implements another premium increase based on the generic genetic testing. A strict reading of the law seems to indicate that’s ok, even though the result seems contrary to the law’s stated intent.

It’s no secret that employers are struggling mightily with health insurance costs, so the percentage of premium picked up by employees increases, deductibles increase and, in some cases, no insurance is provided at all. Another thing employers are doing, particularly smaller employers who used to provide group health insurance before the cost became prohibitive for them, is offering to pay each employee a dollar amount that he/she can apply toward an individual health insurance policy. GINA’s protection doesn’t apply to individual policies, at least as far as insurance companies are concerned. So, an insurance company can use the results of genetic testing to determine the premium of an individual policy, likely making the policy unaffordable. The same is true for a policy bought to supplement medicare coverage. Again, what the law’s words seem to allow runs counter to what GINA has been touted as accomplishing.

What if an employer inadvertently has access to genetic information? The information still can’t be used to discriminate against the employee, and the information must be kept in a confidential file. It’s permissible to keep it in the same confidential file that medical information is kept in accordance with the Americans with Disabilities Act. The ADA is old enough that some employers have forgotten about the requirement to keep medical information in a separate, confidential file. GINA makes it doubly important that you make sure such a confidential file exists.

Can an employer lawfully gain access to genetic information about an employee? Yes. As it turns out, GINA is an imperfect goddess. You can get the info as part of genetic services offered as part of a wellness program, but the employee must provide written consent. You can get it by purchasing “documents that are commercially and publicly available (including newspapers, magazines, periodicals, and books, but not including medical databases or court records) that included family medical history.” I’m assuming this means information in an obituary, a magazine article about a famous relative or on the Internet. You can get it for genetic monitoring of the biological effects of toxic substances in the workplace, but the employee must give written consent. And then there’s an exception for DNA analysis done by a law enforcement forensic lab. If you get the genetic information, you still can’t use it to discriminate against an employee in any aspect of employment.

And there’s another way you can lawfully get genetic information. GINA says that the law isn’t violated “where an employer requests or requires family medical history from the employee to comply with the certification provisions of section 103 of the Family and Medical Leave Act of 1993 (29 U.S.C 2613) or such requirements under State family and medical leave laws.” What? Section 103 is the provision of the FMLA concerning the medical certification you’re allowed to obtain to support an employee’s FMLA request. There’s nothing in that section of the FMLA about family medical history or genetic information. Indeed, I’ve never seen a medical certification form provide anything about an employee’s family medical history or genetic information. Perhaps this provision is included in the event a doctor puts something on the form that discloses genetic information or family history. Or perhaps it’s included in the event you go back to the doctor for clarification and the doctor then puts something on the form that makes such a disclosure. I’m sure this provision wasn’t included to say that you can now request genetic or family history information when you ask for FMLA medical certification. If you did that, it seems to me you’d violate both GINA and the FMLA.

Here’s another inscrutable provision. “An employer . . . shall not be considered in violation of [GINA] based on the use, acquisition, or disclosure of medical information that is not genetic information about a manifested disease, disorder, or pathological condition of an employee or member, including a manifested disease, disorder, or pathological condition that has or may have a genetic basis.” It’s not genetic information, although it has a genetic basis? I don’t know exactly what this means, but I’m sure a court somewhere will.

Now one more trouble spot/source of litigation. GINA creates a new protected class based on genetic information. This protected class covers all employees, since we all have genes. You don’t want to obtain genetic information on any employee, because if you have it and you take adverse action against that employee, he/she will be able to say that the decision was based on the genetic information, even if you placed it in a confidential file. The employee will have to prove that, but I think you can see there’s one more wide avenue of potential lawsuits that can be filed against employers.

The contents of this post are only the tip of GINA’s iceberg. GINA was supposed to make it impossible for employers and health insurance providers to obtain genetic information about employees and to use it against them. Clearly, GINA doesn’t make it impossible to obtain this information, but the new law says that even if an employer or insurance company obtains genetic information, it still can’t be used against the employee. I’m guessing, however, that by knowing employers and insurance companies can get the information, some employees will still be discouraged from getting genetic testing and the follow-up treatment they may need, thus thwarting the primary purpose of GINA.

Between now and GINA’s effective dates, you should sit down with your lawyer and your health insurance company and pick this law apart. Make sure you’re on the same page. Attend a seminar or two. Then proceed with caution. There will be litigation, and you probably don’t want to be a test case.

One more thing. As far as I can tell, GINA says nothing about and has no effect on The Man Gene. Just like a goddess.