Genetic Information Nondiscrimination Act

The Genetic Information Nondiscrimination Act (“GINA”) prohibits discrimination by employers and health insurers on the basis of genetic information.  Signed by President Bush on May 21, 2008, the law becomes effective on November 21, 2009.  Under the law, “Genetic Information” includes information about:  an individual's genetic tests; the genetic tests of an individual’s family members; or the occurrence of a disease or disorder in an individual’s family members.  “Genetic Information” does not include information about an individual’s sex or age.  A family member means an individual’s spouse, child by birth or adoption, and others related by blood to the individual, spouse, or child
All employers covered by Title VII (15 or more employees) are subject to GINA.  GINA expands the definition of an unlawful employment practice to include actions whereby an employer refuses to hire, discharges, or otherwise discriminates with respect to compensation, terms, conditions, or privileges of employment, or limits, segregates or classifies employees in any way that would deprive them of employment opportunities on the basis of Genetic Information.

GINA also prohibits employers from requesting, requiring, or purchasing genetic information about an employee or an employee’s family member.  The law includes exceptions, such as if an employer inadvertently requests family medical history, if an employer requests family medical history to comply with certification provisions under FMLA or similar state laws, or if, under certain specific conditions, federal or state law requires genetic monitoring of toxic substances in the workplace.  An additional limited exception exists an employer provides health or genetic services, such as a bona fide wellness program.  In this case: the individual must provide prior, knowing, voluntary and written authorization for the release of genetic information; only the individual and licensed healthcare professional or board certified genetic counselor may receive individually identifiable information; and such information may be made available only for those services and may not be disclosed to the employer except in aggregate terms that do not disclose individual identities.

The EEOC is responsible for enforcing GINA.

Practice Pointer:  Employers should amend their non-discrimination/EEO policies to include genetic information as a protected attribute, and should review their practices and policies to ensure they are compliant with the requirements of GINA.

For additional information on this topic, please contact Douglas S. Zucker at .