The Genetic Information Nondiscrimination Act
Posted: Tuesday, November 10, 2009
by Michele O'Donnell
MMC, Inc.
On May 21, 2008, President George W. Bush signed The Genetic Information Nondiscrimination Act (GINA) into law effective November 21, 2009. GINA protects insurance policy holders and employees from discrimination on the basis of genetic information.
The GINA strictly prohibits employers from collecting genetic information from employees and using this information to make employment related decisions or terms of employment. The GINA applies to all private, state, and local government employers, with 15 or more employees.
The GINA states that employers, including labor unions and employment agencies, must adhere to strict guidelines regarding genetic information, and that it is prohibited to retaliate against an individual for opposing acts made lawful by The GINA. As with most legislation, there are some exceptions regarding the collection of genetic information; however, employers generally are barred from collecting genetic information about an employee or an employee's family member, whether by request, mandatory disclosure, or purchase from a third party.
The Equal Employment Opportunity Commission (EEOC) enforces anti-discrimination legislation such as this. The EEOC has not yet approved the Final Rule of Title II GINA, and it is anticipated that the final regulations will be released two weeks prior to the law's effective date. Employers should closely monitor any new GINA requirements for the next several weeks to ensure compliance. Please note that the GINA impacts various other pieces of legislation such as the Americans with Disabilities Act (which is also enforced by the EEOC), Employee Retirement Income Security Act of 1974 (ERISA), and the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The GINA also requires that all genetic information be treated as health information under HIPAA, thus making this information subject to HIPAA's privacy regulations.
Most states already have laws prohibiting the use of genetic information. Title II of GINA, however, is much more comprehensive and far reaching, so it is critical for employers to understand its requirements to ensure compliance with the Act. The list below includes some steps you can take as an employer to prepare for GINA:
- Any currently held genetic information must be moved to confidential medical records.
- Ensure genetic information is kept separate from employee personnel records.
- Review all existing company forms and processes to ensure prohibited medical information is not collected.
- Consider updating your employee handbook to reflect new requirements.
- Review your company's existing insurance program to ensure the plan does not ask questions that may be genetic in nature and that the plan offers non-discriminatory coverage for all employees.
- Corporate wellness programs may be affected by GINA.
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