November 3, 2009
Previously published on October 29, 2009
The Genetic Information Nondiscrimination Act’s (GINA) employment-related provisions become effective November 21, 2009. GINA provides a baseline level of protection from discrimination by employers on the basis of genetic information with respect to job applicants, employees and former employees. In addition, labor organizations, employment agencies and employer agents are subject to GINA.
Genetic information is broadly defined in GINA and in the Equal Employment Opportunity Commission (EEOC) regulations to include information regarding (1) the results of genetic tests on an employee; (2) results of genetic tests of the individual’s family members (dependents and up to and including 4th degree relatives); (3) results of genetic tests of any fetus or embryo (including donor eggs) of the individual or a family member; (4) the employee’s family medical history (manifested diseases that are diagnosed or could be diagnosed by a properly trained health practitioner); and (5) any request for, or receipt of, genetic services (genetic testing, counseling or education) or participation in clinical research that includes genetic services by an employee or family member.
Genetic information, however, does not include information about the sex or age of any person. However, an employer still is subject to the Americans with Disabilities Act and other laws regarding nongenetic healthcare information.
Under GINA, employers, labor organizations and employment agencies generally are prohibited from inquiring about, requesting, requiring or purchasing a person’s genetic information in the employment context, except for certain narrowly defined exceptions. In most cases, except for genetic information obtained through public sources, the employer must maintain genetic information as confidential medical information in a separate file.
While only proposed regulations have been published, employers must review their employment-related forms and processes to assure that genetic information will not be improperly collected, used or disclosed after November 21. The EEOC, which enforces Title II of GINA, has submitted its final regulations to the U.S. Office of Management and Budget and expects the regulations to be released before November 21. The Health Law Update will follow the regulatory process.
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