• Genetic Information Nondiscrimination Act ("GINA") Becomes the Law
  • June 13, 2008
  • Law Firm: Troutman Sanders LLP - Atlanta Office
  • On May 21, 2008, President Bush signed into law the Genetic Information Nondiscrimination Act (“GINA”), landmark legislation designed to protect individuals against discrimination based on their genetic information when it comes to health insurance and employment.  GINA is unique because it is the first anti-discrimination law that was enacted to work proactively and prevent discrimination before it becomes entrenched in society.  GINA’s protections are intended to encourage Americans to take advantage of genetic testing as part of their medical care.  Of course, the law has implications for employers and group health plans.  Below is a summary of the impact of GINA on your human resources and employee benefits functions.

    Impact on Group Health Plans

    This section summarizes the provisions of GINA that may impact your group health plans.  (Although this section is restricted to changes made to ERISA, corresponding changes were also made to the Public Health Services Act.)

    Changes in the Law.  The law already prohibits employer group health plans from discriminating on the basis of health factors, including genetic information.  However, GINA expands this protection by:

    • stipulating that discrimination on the basis of “genetic information” includes discrimination based on the mere fact that an employee or family member has requested or received genetic services.
    • prohibiting group health plans and health insurance issuers from adjusting premium or contribution amounts on the basis of the genetic information of a plan participant or his family members.
    • prohibiting group health plans and health insurance issuers from requesting or requiring an individual to undergo a genetic test.

    Confidentiality.  GINA imposes restrictions on the use and disclosure of genetic information over and above the requirements of the existing HIPAA privacy rules.  GINA significantly restricts the ability and authority of a group health plan or health insurance issuer from using, disclosing, requesting, requiring, or purchasing individually identifiable genetic information:

    • prior to or in connection with the enrollment of an employee or family member,
    • for purposes of establishing underwriting, enrollment eligibility criteria, or premium rates, or
    • in connection with the creation, renewal, or placement of a plan.

    Remedies and Penalties.  GINA provides significant remedies and penalties.  In a departure from current law, an individual may bring a civil action under ERISA to enforce his rights under GINA without being required to exhaust administrative remedies upon a showing that exhaustion would cause irreparable harm to his health.  If the claimant is successful, the court may order retroactive reinstatement of health plan coverage and/or award penalties of up to $100 for each day of noncompliance.

    The Department of Labor may sue to enforce GINA as well.  Penalties up to $100 per day may be imposed, with a minimum penalty of $2,500 for de minimis violations and $15,000 for significant violations.  Maximum penalties for unintentional violations are capped at the lesser of 10% of the amount paid by the employer for its group health plans during the prior year, or $500,000.  There is no cap on the penalty amount for violations resulting from willful neglect or intentional misconduct.

    Compliance Requirements.  Plan documents, including HIPAA privacy practices and procedures, will need to be revised to address the new requirements imposed by GINA.  GINA becomes effective the first plan year starting 18 months after the date of enactment, so immediate action is not required.

    Impact on Employers

    This section summarizes the provisions of GINA that impact employers, employment agencies, and labor organizations. 

    Summary of the Law:

    Under GINA, it is now unlawful:

    • to fail to hire, to discharge, or otherwise to discriminate against a person with respect to the terms and conditions of their employment because of that person’s genetic information.
    • to limit, segregate, or classify an employee in any way that would deprive him or her of an employment opportunity or otherwise adversely affect his or her status as an employee because of that employee’s genetic information.
    • to request or require genetic information about an employee or his or her family members, except:
    1. where the request was inadvertent;
    2. where health or genetic services are offered by the employer under a bona fide wellness program and:  (i) the employee provides voluntary written consent; (ii) only the employee and the licensed health care professional receive the information; and (iii) any genetic information is not disclosed to the employer in a way that would identify any specific employee;
    3. where required by the certification provisions of the Family Medical Leave Act or corresponding state medical leave law;
    4. where the employee’s family medical history is available through commercially and publicly available documents, such as magazines and newspapers; or
    5. where the information is to be used to monitor the effect of hazardous substances in the workplace and only if:  (i) the employer provides advance written notice; (ii) the employee consents; (iii) the monitoring is required by law; (iv) the employee is informed of the specific results; and (v) the employer receives the information in a way that does not disclose the identity of the specific employee.
       

    Unlike Title VII (which prohibits discrimination on the basis of race, color, religion, sex, or national origin), GINA requires proof of intentional discrimination and does not provide a cause of action under an unintentional discrimination theory such as the “disparate impact” theory.

    Confidentiality.  If an employer possesses genetic information about an employee, the information must be maintained on separate forms and in separate files and treated as a confidential medical record.

    The employer cannot disclose genetic information except:

    1. To the employee at his or her request;
    2. To an occupational or health researcher in compliance with the law;
    3. In response to a court order;
    4. To government officials who are investigating an employer’s compliance with GINA; and
    5. In connection with an employee’s compliance with the certification provisions of the FMLA or corresponding state medical leave law.
       

    Remedies.  GINA incorporates the remedies provision of Title VII.  Thus, an aggrieved person is entitled to seek compensatory damages as well as punitive damages if he or she demonstrates that the employer acted maliciously or with reckless indifference to the individual’s rights.  Damage awards are subject to Title VII’s limitations on compensatory and punitive damages.

    Compliance Requirements.  The EEOC is tasked to enact final regulations within one year of GINA’s enactment.  As stated above, GINA becomes effective 18 months after enactment.

    Since GINA is a new statute reacting to prevent possible future genetic discrimination (as opposed to a current, actual problem of discrimination), employers and group health plans are sure to have questions about GINA’s requirements, implications and applications.