On May 21st, President Bush signed The Genetic Information Nondiscrimination Act of 2008 (“GINA”) into law. According to the National Institutes of Health’s National Human Genome Research Institute, “GINA protects Americans from being treated unfairly because of differences in their DNA that may affect their health. The new law prevents discrimination from health insurers and employers.” (Click here for more NIH comments.)
The new law is the culmination of a decade-long debate and a series of legislative efforts to deal with the specter of genetic discrimination. Supporters of the law cited a few instances of genetic discrimination, but not widespread abuse.
GINA prohibits employers from discriminating against employees on the basis of genetic information.
The term “genetic information” means information about (i) an employee’s genetic tests, (ii) the genetic tests of family members of an employee, and (iii) the manifestation of a disease or disorder in family members of an employee.
Employers are prohibited from acquiring genetic information, with certain exceptions. Some exceptions include: (1) where an employer inadvertently requests or requires family medical history of the employee or family member of the employee; (2) indirectly, as part of a wellness program; (3) as part of an FMLA medical certification; (4) where the information involved is to be used for genetic monitoring of the biological effects of toxic substances in the workplace; and in a few limited other circumstances.
In the event that an employer does acquire genetic information, the new law requires strict confidentiality, in the manner dictated by the ADA.
Employees who violate GINA will be vulnerable to employee lawsuits and government agency enforcement actions.
Employer advocates complain about the litigation provisions. They have also voiced concerns that GINA further complicates the confusing maze of state and federal medical privacy laws, as well as the numerous state genetic nondiscrimination laws.
Employers and legal counsel have ample time to evaluate the impact. The parts of the law relating to health insurers will take effect by May 2009, and those relating to employers will take effect by November 2009.
According to the NIH, “the law was needed to help ease concerns about discrimination that might keep some people from getting genetic tests that could benefit their health. The law also enables people to take part in research studies without fear that their DNA information might be used against them in health insurance or the workplace.”
Although there are no reports of widespread genetic discrimination, employee medical exams are common. As reported by the AP here, “a 2001 study by the American Management Association showed that nearly two-thirds of major U.S. companies require medical examinations of new hires. Fourteen percent conduct tests for susceptibility to workplace hazards, 3 percent for breast and colon cancer, and 1 percent for sickle cell anemia, while 20 percent collect information about family medical history.”
During the next 18 months, undoubtedly employment law attorneys and HR experts will distill the new law and offer compliance advice. To get a head start, read the text of GINA here.
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC