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Genetic Information Nondiscrimination Act: Answers to Your GINA Questions

by The Human Equation, Inc. on 3/7/2011
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Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which became effective November 21, 2009, prohibits the use of genetic information in employment, restricts covered entities from requesting, requiring, or purchasing genetic information, and strictly limits the disclosure of genetic information. Under GINA, the Equal Employment Opportunity Commission (EEOC) is required to issue implementation regulations within one year of the effective date. On November 9, 2010, the EEOC issued its final regulations, which became effective on January 10, 2011.

Since the final regulations provide specific interpretive guidance, they are a good source of information for those responsible for ensuring compliance with GINA. For example, answers to the following questions can be found in the final regulations.

Who must comply with Title II of GINA? Title II, which has been in effect since November 21, 2009, applies to “covered entities,” which are private employers and 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, because of developments in the field of genetics. As the number of genetic tests increases, so do the concerns of individuals fearing the loss of health coverage or employment because of their genetic information.

What employment practices does GINA prohibit?
GINA prohibits the use of genetic information in making decisions related to any terms, conditions, or privileges of employment (e.g., hiring, firing, and opportunities for advancement); restricts covered entities from requesting, requiring, or purchasing genetic information, with limited exceptions; generally requires covered entities to keep any genetic information they have about applicants or employees confidential; and prohibits retaliation.

What is “genetic information”? “Genetic information” includes information about an individual’s genetic tests; information about the genetic tests of a family member; family medical history; requests for and receipt of genetic services by an individual or a family member; and genetic information about a fetus carried by an individual or family member or of an embryo legally held by the individual or family member using assisted reproductive technology.

What are examples of tests that would be considered genetic tests? The regulations offer numerous examples of tests that are considered genetic tests. For example, a test to determine whether an individual has the genetic variants associated with a predisposition to breast cancer (the BRCA1 or BRCA2 gene) would be considered a genetic test, whereas an HIV test, a cholesterol test, and a test for the presence of drugs or alcohol would not be considered genetic tests.

Does GINA protect individuals discriminated against on the basis of impairments that have a genetic basis, such as certain forms of breast cancer? No. GINA is concerned primarily with protecting those individuals who may be discriminated against because an employer thinks they are at increased risk of acquiring a condition in the future. Someone who is discriminated against on the basis of an actual impairment would not be protected by GINA, even if the condition has a genetic basis. A remedy for such discrimination may be found in the Americans with Disabilities Act.

Are there any exceptions to the general rule against requesting, requiring, or purchasing genetic information? Yes, there are six narrowly-defined situations in which a covered entity may acquire genetic information. Covered entities relying on an exception should proceed cautiously.

In what types of situations would the acquisition of genetic information be considered inadvertent? The exception for inadvertent acquisition of genetic information addresses the “water cooler problem,” which involves a situation in which a manager or supervisor learns genetic information by overhearing a discussion between co-workers. The exception also covers the inadvertent receipt of unsolicited genetic information, provided the covered entity can show it did not act in a manner that made it likely that it would obtain genetic information.

Why does GINA include an exception that allows a covered entity to acquire family medical history as part of the FMLA’s certification process? The exception is necessary when someone is asking for leave to care for a family member with a serious health condition because under the FMLA, family medical history (i.e., information about the manifestation of a disease or disorder in family members of the individual) must be provided as part of the certification process.

What are GINA’s rules on confidentiality? Subject to limited exceptions, covered entities in possession of genetic information about applicants or employees 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 prohibit harassment? The EEOC interprets GINA to prohibit harassment based on genetic information because Congress adopted language similar to that used in Title VII of the Civil Rights Act and other equal employment opportunity statutes, which is understood to prohibit discrimination with respect to a wide range of practices, including harassment.

Does Title II of GINA apply to employment decisions concerning health benefits? Yes. Covered entities are liable for any of their actions that violate GINA, even where those actions involve access to health benefits, because such benefits are within the definition of compensation, terms, conditions or privileges of employment.

What are the remedies for a violation of GINA Title II? GINA incorporates the same remedy structure found in Title VII of the Civil Rights Act. Thus, an aggrieved individual may seek reinstatement, hiring, promotion, back pay, injunctive relief, pecuniary and non-pecuniary damages (including compensatory and punitive damages), and attorneys’ fees and costs. Title VII’s cap on combined compensatory and punitive damages also applies to actions under Title II of GINA.

As is often the case with implementing regulations, the GINA regulations provide information that is generally easier to understand than the text of the law itself. Moreover, the examples found in the regulations often simplify the process of applying GINA in actual situations. Answers to additional GINA questions may be found in the final GINA regulations or the EEOC website.

If you would like more information about employment-related laws, please take our course entitled An Overview of Employment Liabilities.


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