Yesterday, President George W. Bush signed into law the Genetic Information Nondiscrimination Act of 2008 (GINA). This act prohibits employers from discriminating against applicants and employees based on genetic tests or genetic information. The new law also prohibits health insurers from restricting enrollment and premium adjustments for health insurance on the basis of genetic information or genetic services.
Effective Dates
Title II (Employment Discrimination) requires the U.S. Equal Employment Opportunity Commission (EEOC) to issue final regulations within one year of enactment, and the law’s effective date is 18 months after enactment. Title I (Health Insurance) requires the Secretary of the U.S. Department of Health and Human Services (HHS) to issue final regulations within nine months of enactment, and Title I becomes effective one year after enactment.
The bill passed the Senate by a vote of 95-0 and the House by a margin of 414-1 reflecting bipartisan support.
What is "Genetic Information"?
Under the new law, "genetic information" is defined as: (1) an individual’s own genetic tests; (2) the genetic tests of family members; and (3) the manifestation of a disease or disorder in family members.
GINA prohibits the collection of genetic information as well as its use in the workplace, with a number of important exceptions. For example, as a result of several carefully crafted exceptions, the law does not prohibit acquisition of genetic information of an individual or family member which is inadvertently disclosed or received by the employer (e.g., during "water cooler" conversations), or where health or genetic services are offered by an employer (i.e., "wellness" programs), or where genetic information and family medical history are "commercially and publicly available" (e.g., obituaries of family members in newspapers, magazines, periodicals and books). Also, an employer may receive such information based on the individual's prior, knowing, voluntary and written authorization, or where it is received in compliance for medical certifications under the federal Family and Medical Leave Act (FMLA) or similar state laws, or in several other specified circumstances.
However received, such information may not be used for purposes of prohibited employment actions based on genetic information.
What GINA Requires
Title II (Employment Discrimination)
Specifically, for all employers, under Title II (Employment Discrimination) the new law:
(1) prohibits discrimination on the basis of genetic information, without regard to how the information is derived by the employer, in hiring, termination, compensation, and other personnel actions such as promotions and assignments;
(2) broadly prohibits employers from requiring genetic testing and from purchasing or collecting genetic information, except in several limited and clearly-defined exceptions such as where the information is: (a) required to comply with medical certification requirements of state or federal family and medical leave laws, (b) to be used to monitor the adverse effects of hazardous workplace exposures, and (c) the employer conducts DNA analysis for law enforcement purposes as a forensic laboratory;
(3) prohibits disclosure of genetic information, except: (a) upon the employee's request, (b) to an occupational or other health researcher, (c) pursuant to court order, (d) to a government official investigating compliance with this law, (e) in connection with the employee's compliance with the FMLA or state family and medical leave laws, and (f) to a public health agency; and
(4) provides for genetic information received by the employer to be maintained confidentially and disclosed to the employee only.
Remedies and enforcement of Title II (Employment Discrimination) under GINA are the same as those under Title VII of the 1964 Civil Rights Act, with the exception of "disparate impact" claims which are not allowed under GINA (see below under "Important Amendments").
Title I (Health Insurance)
As to health insurers, under Title I (Health Insurance) the new law applies to group health plans, individual plans, and Medicare supplemental plans. Title I:
(1) prohibits the use of genetic information in enrollment restrictions and premium adjustments;
(2) prohibits health plans and insurers from requesting or requiring genetic testing; and
(3) applies to all health insurance plans, including those under federally-regulated ERISA plans, state-regulated plans, and private individual plans.
GINA requires amendments to the privacy regulations under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), providing that "genetic information" must be treated as health information and that use or disclosure of such information will not be considered a "permitted use or disclosure" under those regulations. Especially for self-insured employer plans, Title I provides significant new penalties.
Important Amendments
Litigation under the new law is limited to acts of intentional discrimination. "Disparate impact" on the basis of genetic information does not establish a cause of action under the new law. Also, GINA includes protections between the employer and health insurers to prevent multiple actions (i.e., "double-jeopardy").