Genetic Information Nondiscrimination Act (GINA): Broader Impact than Employers May Realize

The Equal Opportunity Employment Commission (EEOC) has confirmed that the Genetic Information Nondiscrimination Act (GINA) took effect on Nov. 21, 2009.

Warning: The definition of “genetic information” is much broader than employers initially contemplated when GINA was passed. Not only does genetic information include obvious genetic tests, it also includes information regarding the medical history of any employee or the employee’s family members.

GINA amends federal antidiscrimination laws to add a prohibition against employers of 15 or more people from discriminating against an employee because of genetic information. GINA prohibits employers from considering genetic information in making employment decisions, restricts employers and others in acquiring genetic information, imposes confidentiality requirements regarding genetic information, and prohibits retaliation against employees who oppose unlawful actions or participate in proceedings related to these provisions.

GINA provides employees with all of the remedies that are available under Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA), including compensatory and punitive damages.

Under GINA, employers may not use genetic information—i.e., family medical histories—in any employment decision, including in connection with otherwise lawful pre-employment medical testing and return-to-work or leave requests. With few exceptions, GINA prohibits employers from intentionally acquiring genetic information about an employee or an employee’s family member.

Although an employer may not violate GINA if a manager inadvertently acquires information from an employee in casual conversation, or if the employer happens to receive such information from an employee who submits documentation as part of a request for a reasonable accommodation under the ADA, GINA requires the employer to maintain confidentiality with respect to it.

Guidance

To understand GINA, the EEOC recommends that employers keep in mind the distinction between using genetic information for treatment purposes versus using it in making employment decisions. (Please see the EEOC’s Web page for background on the proposed rulemaking and frequently asked questions regarding Title II of GINA.)

While it is reasonable, and often necessary, for health care providers to seek, acquire and use family medical histories in treating patients, it is an unlawful employment practice to seek, acquire or use such information in making employment decisions. The prohibition in GINA is absolute.

Practice Tip

Now is the time for employers to review their forms, especially forms related to pre-employment screening, leave requests, return-to-work, and even “wellness” programs, to see if they contain prohibited requests for genetic information—and to remove any such references if they are there. The EEOC is serious about enforcing this new law.

If you have questions regarding GINA and its implications for employers or assistance reviewing related policy and communications, please contact a Davis Wright Tremaine employment & labor attorney.