By Christopher W. Olmsted
The Genetic Information Nondiscrimination Act (GINA) became effective on November 21, 2009. Generally, this federal law prohibits employers from acquiring or using genetic information about its employees, with certain exceptions.
Who must comply with Title II of GINA?
Title II is the section of GINA which regulates employers. It applies to private, state, and local government employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs.
Why is GINA needed?
GINA was enacted, in large part, in recognition of developments in the field of genetics, the decoding of the human genome, and advances in the field of genomic medicine. Genetic tests now exist that can inform individuals whether they may be at risk for developing a specific disease or disorder. But just as the number of genetic tests increases, so do the concerns of the general public about whether they may be at risk of losing access to health coverage or employment if insurers or employers have their genetic information.
Congress enacted GINA to address these concerns, by prohibiting discrimination based on genetic information and restricting acquisition and disclosure of such information, so that the general public would not fear adverse employment- or health coverage-related consequences for having a genetic test or participating in research studies that examine genetic information.
What is “Genetic Information?”
Genetic information includes, for example, information about an individual’s genetic tests, genetic tests of a family member, and family medical history. (Note: family medical history is commonly gathered by medical providers and therefore any medical information maintained by employers may well include “genetic information.”) Genetic information does not include information about the sex or age of an individual or the individual’s family members, or information that an individual currently has a disease or disorder. Genetic information also does not include tests for alcohol or drug use.
What practices are prohibited by GINA Title II?
Title II of GINA prohibits use of genetic information in making decisions related to any terms, conditions, or privileges of employment, prohibits covered entities from intentionally acquiring genetic information, requires confidentiality with respect to genetic information (with limited exceptions), and prohibits retaliation.
Are there any exceptions to the prohibition on use of genetic information?
No. This prohibition is absolute. Covered entities may not use genetic information in making employment decisions under any circumstances.
Are there any exceptions to the general rule against acquisition of genetic information?
Yes. Although the general rule is that covered entities may not request, require, or purchase genetic information with respect to an employee/applicant or family member of an employee/applicant, there are exceptions.
One exception, sometimes referred to as the “water cooler” exception, applies to inadvertent acquisition of genetic information. This may occur, for example, where a supervisor overhears a conversation between co-workers in which genetic information is discussed or receives genetic information in response to a question about the general health of an employee or employee’s family member, or where an employer receives genetic information as part of documentation an employee submits in support of a request for reasonable accommodation under the Americans with Disabilities Act (ADA) or other similar law.
What are GINA’s rules on confidentiality?
Covered entities in possession of genetic information about applicants or employees must treat it the same way they treat medical information generally. They must keep the information confidential and, if the information is in writing, must keep it apart from other personnel information in separate medical files. A covered entity may keep genetic information in the same file as medical information subject to the ADA.
Does Title II of GINA apply to employment decisions based on health benefits?
To some extent, yes. However, Title II of GINA includes a “firewall” provision intended to eliminate “double liability” by preventing claims under Title II from being asserted regarding matters subject to enforcement under Title I of GINA or the other genetics provisions for group coverage in ERISA, the Public Health Service Act, and the Internal Revenue Code. The firewall seeks to ensure that health plan or issuer requirements or prohibitions are addressed and remedied through ERISA, the Public Health Service Act, or the Internal Revenue Code and not through Title II and other employment discrimination procedures.
The firewall does not immunize covered entities from liability for decisions and actions taken that violate Title II, including employment decisions based on health benefits, because such benefits are within the definition of compensation, terms, conditions, or privileges of employment. For example, an employer that fires an employee because of anticipated high health claims based on genetic information remains subject to liability under Title II. On the other hand, acts or omissions relating to health plan eligibility, benefits, or premiums, or a health plan’s request for or collection of genetic information remain subject to enforcement under Title I of GINA exclusively.
What effect does Title II of GINA have on other laws addressing genetic discrimination in employment?
Title II of GINA does limit an employer’s ability to obtain genetic information after making a job offer. Although the ADA previously permitted a covered entity to obtain family medical history or conduct genetic tests of job applicants once an offer of employment has been made, provided this is done for all entering employees in the same job category, such action is prohibited as of the effective date of GINA.
Reprinted with permission of Christopher W. Olmsted, Esq. partner in the San Diego, California law firm of Barker Olmsted & Barnier.
This article appears in the December 2009 issue