New Federal Discrimination Law: The Genetic Information Nondiscrimination Act

07/01/2008 / Daniel Ballintine

On May 21, 2008, President Bush signed the Genetic Information Nondiscrimination Act of 2008 (“GINA”). GINA creates a new, nationally protected class by prohibiting discrimination based upon genetic information on the part of employers and various types of labor organizations. It is intended to encourage individuals to undergo genetic testing as a part of their routine medical care, without fear that employers will be able to use resulting information against them. In short, effective November 21, 2009, GINA prohibits discrimination on the basis of an individual’s genetic information, and also imposes certain confidentiality obligations upon employers.

Prohibition on Genetic Information Discrimination
As defined by GINA, “genetic information” includes an individual’s genetic tests or the tests of a family member, manifestation of a disease or genetic disorder in a family member, and the request for or receipt of genetic services by an individual or family member. “Genetic information” also includes that of a fetus carried by a pregnant woman, and an embryo legally held by those utilizing assisted reproductive technology. It does not include information about an individual’s sex or age.

GINA makes it unlawful to fail or refuse to hire, discharge, or otherwise discriminate against an employee or to limit, segregate, or classify employees in a way that would deprive or tend to deprive them of opportunities or adversely affect their status based upon their genetic information. The Act also prohibits retaliation against a person for making a complaint under GINA or assisting in the investigation of a related claim. In addition, GINA makes it unlawful to request, require, or purchase genetic information of an employee or employee’s family member unless: 1) it is inadvertent; 2) it is related to employer-offered health, genetic service, or wellness programs; 3) it is required for certification under the Family and Medical Leave Act (“FMLA”) or analogous state provisions; 4) purchased documents are commercially and publicly available; 5) the employer is monitoring biological effects of toxic substances in the workplace; or 6) it is part of a quality control effort related to DNA analysis in the law enforcement arena.

Confidentiality Obligations
Under GINA, genetic information in an employer’s files is part of a person’s confidential medical record and must be maintained on separate forms and in separate files. Disclosure is not allowed except: 1) to the individual or family member to whom the information pertains; 2) to an occupational or other health researcher; 3) in response to a court order; 4) to government officials investigating compliance with the Act; 5) if made in connection with FMLA or analogous state certification; or 6) to a federal, state, or local public health agency if concerning a contagious disease that presents an imminent hazard of death or life-threatening illness.

It is important to inform employees who handle human resource issues or maintain personnel records about GINA’s requirements and also to make relevant changes to your personnel policies. If you would like assistance or have questions regarding GINA, please feel free to contact us.