According to the EEOC Notice of Proposed Rulemaking on Title II of the Genetic Information Nondiscrimination Act of 2008 ("GINA"), GINA is a federal law that prohibits discrimination in health coverage and employment based on genetic information. GINA, together with already existing nondiscrimination provisions of the Health Insurance Portability and Accountability Act, generally prohibits health insurers or health plan administrators from requesting or requiring genetic information of an individual or an individual’s family members, or using such information for decisions regarding coverage, rates, or preexisting conditions. GINA also prohibits employers from using genetic information for hiring, firing, or promotion decisions, and for any decisions regarding terms of employment. The part of the law relating to employment (Title II) will take effect on November 21, 2009.
Once GINA takes effect, it generally will prohibit discrimination based on genetic information in connection with health coverage and employment, no matter when the information was collected.
GINA defines genetic information as information about:
- An individual’s genetic tests (including genetic tests done as part of a research study);
- Genetic tests of an individual’s family members (defined as dependents and up to and including 4th degree relatives);
- Genetic tests of any fetus of an individual or family member who is a pregnant woman, and genetic tests of any embryo legally held by an individual or family member utilizing assisted reproductive technology;
- The manifestation of a disease or disorder in an individual’s family members (family history); or
- Any request for, or receipt of, genetic services or participation in clinical research that includes genetic services (genetic testing, counseling, or education) by an individual or an individual’s family members.
- Genetic information does not include information about the sex or age of any individual.
Who is Subject to GINA?
GINA will apply to private and state and local government employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs.
What Employment Practices are Prohibited?
GINA prohibits use of genetic information in making decisions related to any terms, conditions, or privileges of employment, prohibits covered entities from intentionally acquiring genetic information, requires confidentiality with respect to genetic information (with limited exceptions), and prohibits retaliation.
What Safeguards Must an Employer in Possession of Genetic Information Take?
Employers must treat the information the same way they treat medical information generally. They must keep the information confidential and, if the information is in writing, must keep it apart from other personnel information in separate medical files. A covered entity may keep genetic information in the same file as medical information subject to the ADA.
Does GINA Prohibit Harassment Based on Genetic Information?
GINA does not directly address the issue of harassment claims. However, in describing the prohibited practices under Title II, Congress adopted language similar to that used in Title VII of the Civil Rights Act of 1964 and other equal employment opportunity statutes, evincing its intent to prohibit discrimination with respect to a wide range of practices, including harassment. So, the answer is probably "yes."
Can an Employer Still Obtain Genetic Information After Making a Job Offer?
GINA limits an employer’s ability to obtain genetic information after making a job offer. Although the ADA currently permits a covered entity to obtain family medical history or conduct genetic tests of job applicants once an offer of employment has been made, provided this is done for all entering employees in the same job category, such action will be prohibited upon the effective date of GINA.
What is the Possible Liability Exposure?
The cap on combined compensatory and punitive damages (excluding past monetary losses) ranges from $50,000 for employers with 15-100 employees to $300,000 for employers with more than 500 employees.
Additional EEOC guidance is online. EEO investigators need to be aware of the EEOC’s proposed regulations (as well as California’s state law prohibiting genetic testing–Cal. Gov’t Code Section 12940(o)), including a few possible employer exceptions, such as, FMLA, inadvertent disclosures by the employee, wellness programs, etc. (see 29 CFR Part 1635.8, "Acquisition of Genetic Information"). But, the bottom line is, if an employer gets this information, put it in a separate medical file (such as an existing ADA file).
When Will We See the "Final Regulations" by the EEOC?
Final Regulations by the EEOC (concerning Title II only) will be issued by November 21, 2009, according to Peggy R. Mastroianni, Associate Legal Counsel, EEOC, when she recently gave a presentation on GINA at an EEOC Training Seminar in Pasadena, CA.