I. INTRODUCTION
On November 21, 2009, the Genetic Information Nondiscrimination Act (GINA) went into effect. GINA is the first federal anti-discrimination law in nearly 20 years. It prohibits employers from hiring, firing or determining promotions based on genetic information. GINA requires covered entities (private employers with 15 or more employees) to post notices informing individuals of their rights under the law.
II. BACKGROUND
GINA provides a baseline level of protection against genetic discrimination for all Americans. Several states have already adopted laws to protect against genetic discrimination in employment practices and health insurance. Because of the varying degree of protection among the several states that have adopted legislation protecting against genetic discrimination, the federal government took action to establish a minimum level of protection.
The law prohibits most employers from using genetic information for hiring, firing, or promotion decisions, and for any decisions regarding terms of employment. The law also prohibits discrimination in health coverage by prohibiting health insurers or health plan administrators from requesting or requiring genetic information of an individual or the individual’s family members, or using such information for decisions regarding coverage, rates, or preexisting conditions.
Enforcement of the law will be by various federal agencies. The Equal Employment Opportunity Commission is responsible for Title II, relating to employment. Remedies for violations include corrective action and monetary penalties. Under Title II of GINA, individuals may also have the right to pursue private litigation. Title I of GINA dealing with health coverage will be enforced by the Department of Labor, the Department of the Treasury and the Department of Health and Human Services.
III. EEOC FINAL REGULATIONS
A. Introduction
The Equal Employment Opportunity Commission (“EEOC”) has issued final regulations regarding Title II of GINA. Title II applies to private employers with 15 or more employees. These provisions of law "prohibit use of genetic information in the employment context, restrict employers and other entities covered by Title II from requesting, requiring or purchasing genetic information, and strictly limit such entities from disclosing genetic information." The regulations became effective on January 10, 2011.
B. Definition of Genetic Information
Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about the manifestation of a disease or disorder in an individual’s family members (i.e. family medical history). Genetic information also includes an individual's request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual, and the genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology. Genetic information does not include information about the sex, age, race, or ethnicity of a person, unless the information about the race or ethnicity is derived from a genetic test.
C. Discrimination Because of Genetic Information
The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. An employer may never use genetic information to make an employment decision because genetic information doesn’t tell the employer anything about someone’s current ability to work. Employers are also prohibited from limiting, segregating, or classifying employees because of their genetic information. The EEOC provides the following example: “an employer could not reassign someone whom it learned had a family medical history of heart disease from a job it believed would be too stressful and might eventually lead to heart-related problems for the employee.”
D. Harassment Because of Genetic Information
Under GINA, it is also illegal to harass a person because of his or her genetic information. Harassment can include, for example, making offensive or derogatory remarks about an applicant or employee’s genetic information, or about the genetic information of a relative of the applicant’s or employee. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so severe or pervasive that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area of the workplace, a co-worker, or someone who is not an employee, such as a client or customer.
E. Retaliation
Under GINA, it is illegal to fire, demote, harass, or otherwise “retaliate” against an applicant or employee for filing a charge of discrimination, participating in a discrimination proceeding (such as a discrimination investigation or lawsuit), or otherwise opposing discrimination.
F. Rules Against Acquiring Genetic Information
It will usually be unlawful for an employer to get genetic information. There are six narrow exceptions to this prohibition:
The regulations also provide specific language that can be included in a request for medical information that, if used, will ensure that any receipt of genetic information in response to the request will be deemed inadvertent, as follows:
“The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information,’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or anembryo lawfully held by an individual or family member receiving assistive reproductive services.”
Alternative language may also be used, as long as individuals and health care providers are informed that genetic information should not be provided.
G. Confidentiality of Genetic Information
It is also unlawful for an employer to disclose genetic information about applicants or employees. Employers must keep genetic information confidential and in a separate medical file. (Genetic information may be kept in the same file as other medical information in compliance with the Americans with Disabilities Act.) However, if an employer placed genetic information in personnel files prior to November 21, 2009, the information need not be removed.
There are limited exceptions to this non-disclosure rule, such as exceptions that provide for the disclosure of relevant genetic information to government officials investigating compliance with Title II of GINA and for disclosures made pursuant to a court order.
Additional information in Question & Answer format may be found at www.eeoc.gov/laws/regulations/gina_qanda_smallbus.cfm.
IV. EMPLOYEE SPONSORED WELLNESS PROGRAMS UNDER THE GINA
The Equal Employment Opportunity Commission (EEOC) has issued a final rule addressing the treatment of wellness programs under Title II of the Genetic Information Nondiscrimination Act (GINA). The new notice requirements and the rules pertaining to financial rewards will apply prospectively to wellness plans beginning on the first day of the plan year beginning on or after January 1, 2017.
A. GINA Final Rules
Title II of GINA protects job applicants, current and former employees, labor union members, and apprentices and trainees from employment discrimination based on their genetic information. GINA generally restricts the acquisition and disclosure of genetic information and prohibits the use of genetic information in making employment decisions. Title II of GINA prohibits the use of genetic information and making employment decisions in all circumstances, with no exceptions. It also restricts employers and other entities covered by GINA from requesting, requiring, or purchasing genetic information, unless one or more of six narrow exceptions applies, and strictly limits the disclosure of genetic information by GINA-covered entities.
One of the exceptions to disclosure allows employers offering health or genetic services in conjunction with the voluntary wellness program to request genetic information so long as certain requirements are met. The final rule clarifies that, under certain circumstances, an employer may offer an employee limited inducements for the employee’s spouse to provide information about the spouse’s manifestation of disease or disorder as part of an HRA administered in connection with an employee-sponsored wellness program, provided that GINA’s confidentiality requirements are observed and any information obtained is not used to discriminate against an employee.
The cap on the employer incentive cap for providing a spouse’s genetic information is identical to the limitations discussed in the ADA final rule (NBA Compliance Handbook, Vol I, Personnel tab, Americans With Disabilities Act: Title I – Employment Provisions (v)). The final rule makes it clear that the narrow exception for disclosure of GINA information does not allow an employer to offer inducements for an employee’s genetic information or the manifestation of disease or disorder and genetic information of the employee’s children, however, children of the employee may still participate in the wellness program.
It should be noted that Title II of GINA and the existing regulations implementing it include specific confidentiality provisions requiring employers and other covered entities that possess genetic information to maintain it in medical files (including where the information existed electronic forms or files) that are separate from personnel files and treat such information as a confidential medical record. Provisions which allow employers to acquire genetic information as part of health or genetic services such as employer-sponsored wellness programs further require that the authorization an individual must sign explain the restrictions on the disclosure of that information; that individually identifiable genetic information is provided only to the individual receiving the services and a licensed health care professionals or board certified genetic counselors involved in providing those services; and that any individually identifiable genetic information is only available for purposes of the health or genetic services and is not disclosed to the employer except in aggregate terms.
B. EEOC Q&A
The EEOC has published question-and-answer documents on the final which is available at https://www.eeoc.gov/laws/regulations/qanda-gina-wellness-final-rule.cfm.
V. FEDERAL POSTER REQUIREMENTS
Private employers with 15 or more employees are covered and must comply with GINA. In addition, all covered employers are required to post notices required by GINA along with the other required federal posters. The newest poster entitled, “Equal Employment Opportunity is the Law” was revised November of 2009 and is available at http://www.eeoc.gov/ under the “Employers” tab.