GINA Now Applicable to Employers — Tip of the Week

On May 21, 2008, President Bush signed the Genetic Information Nondiscrimination Act. Title I of GINA, preventing insurance companies from discriminating on the basis of genetic information in group health plans, became effective on May 21, 2009. Title II of GINA, prohibiting employers with 15 or more employees from making any employment decision based on the genetic information of an employee or an employee’s family member, became effective over the weekend (November 21 to be exact). For a previous post on GINA, click here.

There are six narrow exceptions to GINA’s employment provision. Click here for a summary of these exceptions by the Equal Employment Opportunity Commission. It’s important to remember that even if an employer acquires genetic information through one of these exceptions, the employer still can’t use or disclose the information to discriminate against an employee. Moreover, the genetic information must be kept in a confidential, separate medical file. It’s permissible to use the same file required by the Americans with Disabilities Act for medical information.

One key fact that all covered employers should realize is that there is now a new protected class under GINA. Since all employees have genes, all employees are in the protected class. So, even if you obtain genetic information by means of one of the recognized exceptions and even if you place it in a confidential, separate file, it will be possible for an employee against whom adverse action is taken to claim that the action was based on the genetic information. The employee will have to prove the claim, but there is now another avenue of potential discrimination litigation.

It’ll take years to determine how wide the avenue is and how much traffic it will have. In the meantime, the tip: Be aware of the law and make every effort to comply with it.