Viewed as the most important and most expansive employment anti-discrimination law in the last 20 years, the Genetic Information Nondiscrimination Act (GINA) was signed into law by President Bush in May, 2008 and finally took effect on November 21, 2009. GINA adds protection for “genetic information” under federal employment discrimination laws.
Genetic tests help determine whether someone is at risk of developing an inherited disease or medical condition. Congress feared that this information – useful to determine whether someone has a predisposition to hereditary diseases, such as cancer or heart disease, or what course of treatment might work best for the patient – would be abused by employers discriminating against or even firing employees based on the information, or health insurers denying coverage based on the information. Thus, GINA makes it unlawful for an employer to request genetic testing or consider someone’s genetic background in employment-related decisions such as hiring, firing, or promotions.
The statute broadly defines “genetic information” to include information about an employee’s genetic tests, the genetic tests of an employee’s family members, and the manifestation of a disease in the employee or his or her family members. Thus, under GINA’s expansive coverage, not only is an employee’s own genetic information protected, but so are the employee’s relatives. GINA also makes it illegal for an employer to request, require, or purchase genetic information about an employee or an employee’s family member. However, GINA carves out exceptions such as inadvertently obtained genetic information (i.e. overhearing an employee mention his father had cancer), qualifying health or genetic services such as voluntary wellness programs, FMLA medical certifications, commercially or publicly available documents (i.e. such as obituaries), monitoring the affects of toxic substances in the workplace, and DNA analysis for law enforcement purposes. However, despite the protection for inadvertent disclosure, GINA prohibits the use of such inadvertent knowledge to alter the terms, conditions or privileges of employment.
Practically, this means that employers can no longer ask employees for family medical histories. If an employer obtains genetic information about an employee, it must maintain the information on separate forms and in separate medical files and treat it as a confidential medical record of the employee, similar to the treatment of other medical information under the ADA. Likewise, health insurers can no longer require such testing or rely on genetic information (i.e. a family history of cancer or heart disease) to deny coverage, or even to set premiums or deductibles. An employer is only permitted to disclose genetic information upon a specific written request, in response to a court order, to comply with the FMLA’s certification procedures. Employers must familiarize themselves with GINA and how it interacts with the ADA, FMLA, and PDA. For example, when an employee uses FMLA leave to care for a family member and is later terminated, not only would that employee have a retaliation claim, but also a GINA claim.
GINA applies to employers of 15 or more employees. Unlike Title VII, GINA also covers many public sector employees, employment agencies and labor organizations. Employees have the same rights and remedies for alleged violations of GINA as they do for alleged violations of Title VII, including compensatory damages (capped at $300,000 for employers with 500 or more employees), back pay, reinstatement, punitive damages, and attorney fees.
If you have any other questions related to GINA or any other employment practices matters, please feel free to contact one of our Labor and Employment Law Practice Group members.