Employee Genetic Information Is Protected

The Genetic Information Nondiscrimination Act of 2008, popularly known as GINA, prohibits discrimination on the basis of genetic information by employers and group health plans. The law, which applies to employers with 15 or more employees, employment agencies and unions, prohibits employers from discriminating against an employee or job applicant due to genetic information.

“Genetic information” includes information about the genetic testing of and manifestations of a disease or disorder affecting the employee, applicant or family members. Collection of an employee’s genetic information is permitted under limited circumstances, including when employees volunteer this information as a part of casual conversation, known as the water-cooler exception; during a wellness program; or in the process of completing certain medical-leave paperwork. Disclosure of such genetic information by an employer is also limited.

GINA prohibits retaliation against any individual who complains about violations of the act. The civil penalty for violating GINA ranges from $100 to $15,000. Individuals who believe their rights have been violated may also file a private lawsuit.

The employment provisions of GINA became effective November 21, 2009, and the EEOC’s regulations governing those provisions will be finalized and published in the near future. GINA was effective for group health plans beginning after May 21, 2009, or January 1, 2010, for calendar-year plans. Regulations applicable to health insurance plans were made public on October 1, 2009, and interim final regulations became effective on December 7, 2009. P.L. 110-233.

Impact: Employers and group health insurers should review personnel practices and information-gathering polices to ensure compliance with GINA. Post-offer, pre-employment health history policies and practices should be considered for review.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.