Genetic Information Now Protected By Law

In June 2008, the Genetic Information Nondiscrimination Act (GINA) was passed by Congress and signed into law by President Bush. The law prohibits discrimination based on genetic information about employees and applicants, their dependants, and any relatives out to the fourth-degree, such as great-grandparents. GINA stops employers from requesting, requiring or purchasing genetic information about an employee or his family members. The law goes into effect for employers beginning in November 2009.

Although many people have questioned why we needed a law when no one recognized that genetic discrimination was a problem, the federal government seemed to think that the law was necessary to allow genetic testing to begin to be used to its full potential in fighting disease. In fact, the law passed with only one “no” vote in the House and unanimously in the Senate.

How do you as an employer need to respond to GINA? The most obvious change will be that by next fall, your EEO statements in your policy manuals and your EEO posters will need the addition of “geneitc information” to the list of protected classes such as gender, race, national origin, religion, etc.

You will have to continue to carefully keep all medical information about your employees, including genetic information, separate from other personnel files and locked up to protect confidentiality. While this is already required by the Americans with Disabilities Act, you will have to be alert with how you handle the medical information that an employee provides about a family member. “I’ll be absent tomorrow because I am taking my mother to her chemotherapy treatment” is no longer just a reason for taking a personal day, but could also be considered genetic information that should be kept highly confidential and only accessible by those with a strong need to know.  

Another area that will be affected by GINA is your group health insurance. While insurance carriers were already required to keep an employee’s genetic information private, now they are also prohibited from using that information to deny coverage or raise the price of the premiums for the group health plan. As an employer you will need to double-check with your insurance provider at your next renewal to understand what the carrier is doing to become compliant with GINA by January 1, 2010.

The EEOC has until May 21, 2009, to come up with its regulations to enforce GINA. However, the law already sets forth penalties of $100 per day for violations of the health insurance and privacy provisions. That alone makes it worth your while as an employer to monitor the developments of this law over the next year.

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