What should employers know about their obligations under the Genetic Information Nondiscrimination Act?

Under the Genetic Information Nondiscrimination Act (GINA), signed by President Bush on May 21, 2008, employers will need to learn new ways of dealing with information, just as they did when the Americans with Disabilities Act (ADA) was passed, according to Seyfarth Shaw Partner Camille A. Olson.

Managers and supervisors must now be careful about initiating conversations with employees, Olson cautioned. Inquiring about a sick aunt, for example, could trigger employer obligations because GINA protects not only genetic information about an employee obtained through genetic testing, but also genetic testing and information about the 'manifestation of a disease or disorder' in the employee's family members, she pointed out.

Family member, defined very broadly under GINA, includes first, second, third or fourth-degree relatives, so water cooler conversations or a request for a day off to visit a relative with cancer can put the employer in possession of protected information.

Unlike health conditions covered under the Americans with Disabilities Act, genetic information does not include the symptoms of a disease or disorder -- genetic information is asymptomatic, Olson stressed.

Employment discrimination. GINA's employment title, effective November 21, 2009, protects against discrimination based on genetic information (see ¶70,770 ). Olson noted that under GINA, employers, employment agencies and unions are prohibited from:

1. failing to hire or discharging any employee, 'or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee because of genetic information with respect to the employee;' or

2. limiting, segregating, or classifying the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee.

Information collection. Olson pointed out that employers are also prohibited from collecting genetic information under GINA, with exceptions for: (1) inadvertently obtained genetic information; (2) information obtained through genetic services offered by the employer with the employee's written consent, provided individually identifying information is received only by the employee and health care professional and no disclosure of information is given to the employer except in aggregate terms; (3) employer requested information for compliance with the certification provisions of the Family and Medical Leave Act (FMLA) or a similar state law; (4) documents purchased by the employer that are commercially and publicly available which include family medical history; and (5) information used for genetic monitoring of biological effects of toxic substances in the workplace.

Confidentiality. GINA's employment provisions also require that employers keep genetic information about employees and their family members confidential, maintaining the information on separate forms and in separate files, Olson instructed. Employers can comply with the GINA by treating and maintaining the information as a confidential medical record under the ADA (see ¶13,020 ).

There are several narrow exceptions to an employer's confidentially obligation, Olson noted, including disclosures made in connection with an employee's compliance with the certification provisions of the FMLA or similar state law. Other exceptions exist for disclosures requested by: an employee in writing; an occupational or health researcher conducting research in compliance with federal regulations; a valid court order; a government official investigating GINA compliance; or a public health agency if the information concerns a contagious disease presenting an imminent hazard of death or life-threatening illness, with proper notice.

Olson stressed that under GINA, employers should not make disclosures of genetic information pursuant to a subpoena or discovery requests during litigation, as the statute permits disclosure only pursuant to a valid court order.

Disparate treatment claims. GINA's employment title provides only for disparate treatment claims, although the possibility of providing disparate impact relief is to be revisited six years after the statute's enactment, Olson pointed out. Damages under GINA are similar to those available under Title VII, with both punitive and compensatory damages available as well as attorneys' fees and costs. GINA will be enforced by the Equal Employment Opportunity Commission (EEOC) and there will be a charge filing obligation. The EEOC is required to issue regulations within 12 months of GINA's enactment, Olson noted.

GINA also amends the Employee Retirement Income Security Act and the Health Insurance Portability and Accountability Act, and thus provides protection form discrimination related to employer health plans, as Olson discussed. The Department of Labor has enforcement authority against plan sponsors and insurers, she noted.

Olson suggested several measures that employers can take to avoid disparate treatment claims under GINA, including:

• Revise policies and train managers

• Avoid asking employees about genetic testing or testing results

• Never ask employees if a condition runs in their family

• Educate managers and human resource professionals about safeguarding information to prevent it from entering the decision-making process

• Consider screening all medical information upon receipt to determine if it must be kept confidential and the circumstances under which it may be released

• Keep all genetic information confidential unless special circumstances are met

• Do not raise insurance rates for or deny coverage to any individual based on genetic information

• Do not use genetic information to limit benefit claims or costs, or workers' compensation claims

• Do not disclose genetic information to third parties without a court order

Source:A New Civil Rights Law for the 21st Century: Genetic Nondiscrimination, presented at the 60th Annual Society for Human Resources (SHRM) Conference & Exhibition in Chicago, Illinois, on June 23, 2008.