ALERT - GINA Employment Provisions In Effect

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December 11, 2009

On November 21, 2009, the employment provisions of the Genetic Information Non-Discrimination Act (GINA) became effective.  Employers should be aware of the restrictions that GINA places on the acquisition and use of genetic information in employment settings.  Importantly, employers also need to update their Equal Employment Opportunity Commission (EEOC) posters to reflect the new requirements under GINA.

GINA’s Employment-Related Prohibitions
Title II of GINA restricts the deliberate acquisition of genetic information by employers, prohibits the use of genetic information for employment purposes, requires that genetic information be kept confidential and strictly limits employers from disclosing genetic information.  Specifically, GINA provides that employers may not discriminate against an employee or job applicant through the use of genetic information.  GINA also prohibits retaliation against individuals who oppose discrimination on this basis.  Title II of GINA applies to employers with 15 or more employees—the same employers covered by Title VII of the Civil Rights Act of 1964.

“Genetic information” includes requests or receipt of genetic services, information from an employee or job applicant’s genetic tests, the genetic tests of family members and the manifestation of a disease or disorder in family members as may be indicated in a family medical history.  “Family” is defined very broadly to include an individual’s dependents from the first to the fourth degree, and other relatives. 

Employers who acquire genetic information on an employee must store this information in a separate medical file and treat such information as a confidential medical record.  Under GINA, genetic information may not generally be disclosed to anyone except:  an employee and certain members of the employee’s family upon written request by the employee, an occupational or health researcher, a court or a government investigator.  Genetic information also may be disclosed in specific, limited circumstances, such as disclosures necessary for Family and Medical Leave Act compliance.

Title I Requirements Impact Group Health Plans

Title I of GINA prohibits group health plans from collecting genetic information prior to or in connection with enrollment, and from using genetic information for “underwriting purposes.”  As a result, group health plans may not collect family medical history as part of the annual enrollment process, and may not offer individuals monetary incentives (i.e., reduced premiums) to complete a Health Risk Assessment (HRA) that asks about family history.  HRAs are a common component of employer wellness programs.  An incentive may be offered to complete an HRA that does not request genetic information, provided the HRA explicitly states that such information should not be provided.  GINA also provides that genetic information is to be treated as protected health information under the Health Insurance Portability and Accountability Act. Title I of GINA is effective for plan years beginning on or after May 21, 2009 (January 1, 2010 for calendar-year plans).

Updating Employer Postings
The EEOC has mandated new language for required employer postings under GINA.  Employers may print updated posters or find the new language to add as an addendum to their posters on the EEOC’s Web site.  This new poster language should be displayed immediately.

If you have any questions regarding GINA, please contact your Briggs and Morgan attorney or a member of the Labor and Employment Section.

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