By Michael G. McClory
“GINA” UPDATE
The Genetic Information Nondiscrimination Act of 2008 (“GINA”), signed into law by President Bush on May 21, 2008, prohibits discrimination on the basis of genetic information with respect to health insurance (Title I) and employment (Title II). GINA addresses concerns that advancements in genetic science, which have positive medical possibilities, also present opportunities for the misuse of genetic information. This Alert focuses on Title II, which went into effect on Saturday, November 21, 2009 and prohibits genetic discrimination in employment. (Title I went into effect on May 21, 2009.).
Definition of “Genetic Information”
GINA defines genetic information to include information about the genetic tests of an individual. It also includes information related to family members of that individual, including genetic tests of family members and manifestations of a disease or disorder in family members of that individual. The definition is broad enough to include responses to family medical history inquiries. On the other hand, genetic information does not include information about the sex or age of an individual or the individual’s family members, information that an individual currently has a disease or disorder, or tests for alcohol or drug use.
Title II – Prohibits Genetic Discrimination in Employment
Title II of GINA applies to employers (private and public) of 15 or more employees, employment agencies, labor unions, and joint labor-management training programs. Here is a summary of its major provisions.
- Prohibits the use of genetic information in making decisions related to any terms, conditions, or privileges of employment (such as hiring, firing, pay, promotion, layoff, and benefits).
- Prohibits harassment of an applicant or employee because of his/her genetic information.
- Prohibits retaliation against employees who have complained about genetic discrimination, filed a charge of discrimination, or participated in an employment discrimination inquiry, investigation or lawsuit.
- Generally, Title II prohibits the intentional acquisition of genetic information about applicants, employees or their family members. This general prohibition is subject to exceptions.
Major exceptions. The acquisition of genetic information is not prohibited where it is:
- Inadvertently obtained (the so-called “water cooler” exception, such as where a supervisor overhears an employee discuss his mother’s illness);
- Received from an employee in support of a request for reasonable accommodation;
- Received as part of the certification process for FMLA leave; or
- Received in connection with a voluntary wellness program.
There are other exceptions not listed here.
- Much like medical information generally, protected genetic information may not be disclosed to third parties, should be kept confidential, and documents containing such information should be kept separate from other personnel information. There are some exceptions to these confidentiality provisions.
GINA provides the same remedies as Title VII of the Civil Rights Act of 1964. An applicant or employee who succeeds on a GINA claim may be awarded reinstatement, promotion or hiring, back pay, compensatory and punitive damages, and attorney’s fees and costs. The caps imposed on compensatory and punitive damages under Title VII also apply to GINA. Punitive damages are not available against public employers.
The EEOC’s proposed regulations for Title II of GINA will provide additional guidance. They are expected to be finalized soon, but it is not known precisely when that will happen.
Additionally, employers should post the revised “EEO is the Law” poster. It is available for free download from the EEOC’s website (see
http://www1.eeoc.gov/employers/poster.cfm).
Bullard Law will continue to monitor developments under GINA. In the meantime, please give us a call if you have any questions about the GINA or other employment, labor relations and employee benefits developments.
- Jennifer M. Warberg & Michael G. McClory
