Genetic Nondiscrimination Act

Effective November 21, 2009, the Genetic Information Nondiscrimination Act of 2008 (GINA) was enacted in recognition of developments in the field of genetics. Genetic tests now exist that can indicate whether individuals may be at risk for developing a specific disease or disorder. The concerns focus on whether employees may be at risk of losing access to health coverage or employment if insurers or employers have their genetic information.

To address these concerns, GINA prohibits discrimination based on genetic information and restricts acquisition and disclosure of such information. Genetic information includes information about an individual’s genetic tests, genetic tests of a family member, and family medical history. Genetic information does not include information about the sex or age of an individual, the individual’s family members, information that an individual currently has a disease or disorder, and tests for alcohol or drug use.

GINA includes Title I and Title II amendments:

  • Title I amends portions of the Employee Retirement Income Security Act (ERISA), the Public Health Service Act, and the Internal Revenue Code, and addresses the use of genetic information in health insurance.
  • Title II applies to private, state, and local government employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs. Title II also prohibits use of genetic information in making decisions related to any terms, conditions, or privileges of employment, prohibits covered entities from intentionally acquiring genetic information about applicants and employees, requires confidentiality with respect to genetic information (with limited exceptions), and prohibits retaliation.

“Covered entities” (subject to Title II as noted above) may not use genetic information in making employment decisions under any circumstances. The general rule states that covered entities may not request, require, or purchase genetic information with respect to an employee/applicant or family member of an employee/applicant. Covered entities in possession of genetic information about applicants or employees must treat it the same way they generally treat medical information. (Note: GINA also amends the privacy provisions of HIPAA to include genetic information in the definition of protected health information.) Covered entities also must keep the information confidential and, if the information is in writing, they must keep it apart from other personnel information in separate medical files. Employers need to exercise caution when it comes to the GINA law to avoid penalties.

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