“Employers voiced concerns that GINA further complicates the confusing maze of state and federal medical privacy laws, as well as the numerous state genetic nondiscrimination laws.”
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DISCRIMINATION LAW
President Signs Genetic Information
Nondiscrimination Act
By Christopher W. Olmsted
On May 21st, President Bush signed The Genetic Information Nondiscrimination Act of 2008 ("GINA") into law. According to the National Institutes of Health's National Human Genome Research Institute, "GINA protects Americans from being treated unfairly because of differences in their DNA that may affect their health. The new law prevents discrimination from health insurers and employers."
The new law is the culmination of a decade-long debate and a series of legislative efforts to deal with the specter of genetic discrimination. Supporters of the law cited a few instances of genetic discrimination, but not widespread abuse.
GINA prohibits employers from discriminating against employees on the basis of genetic information.
The term "genetic information" means information about (i) an employee's genetic tests, (ii) the genetic tests of family members of an employee, and (iii) the manifestation of a disease or disorder in family members of an employee.
Employers are prohibited from acquiring genetic information, with certain exceptions. Some exceptions include: (1) where an employer inadvertently requests or requires family medical history of the employee or family member of the employee; (2) indirectly, as part of a wellness program; (3) as part of an FMLA medical certification; (4) where the information involved is to be used for genetic monitoring of the biological effects of toxic substances in the workplace; and in a few limited other circumstances.
In the event that an employer does acquire genetic information, the new law requires strict confidentiality, in the manner dictated by the ADA.
Employees who violate GINA will be vulnerable to employee lawsuits and government agency enforcement actions.
Employer advocates complain about the litigation provisions. They have also voiced concerns that GINA further complicates the confusing maze of state and federal medical privacy laws, as well as the numerous state genetic nondiscrimination laws.
Employers and legal counsel have ample time to evaluate the new law's impact. The parts of the law relating to health insurers will take effect by May 2009, and those relating to employers will take effect by November 2009.
According to the NIH, "the law was needed to help ease concerns about discrimination that might keep some people from getting genetic tests that could benefit their health. The law also enables people to take part in research studies without fear that their DNA information might be used against them in health insurance or the workplace."
Although there are no reports of widespread genetic discrimination, employee medical exams are common. As reported by the AP here, "a 2001 study by the American Management Association showed that nearly two-thirds of major U.S. companies require medical examinations of new hires. Fourteen percent conduct tests for susceptibility to workplace hazards, 3 percent for breast and colon cancer, and 1 percent for sickle cell anemia, while 20 percent collect information about family medical history."
The NIH website does report one instance of genetic discrimination where the EEOC became involved:
Although no genetic-employment discrimination case has been brought before U.S. federal or state courts, in 2001 the U.S. Equal Employment Opportunity Commission (EEOC) settled the first lawsuit alleging this type of discrimination.
EEOC filed a suit against the Burlington Northern Santa Fe (BNSF) Railroad for secretly testing its employees for a rare genetic condition (hereditary neuropathy with liability to pressure palsies - HNPP) that causes carpal tunnel syndrome as one of its many symptoms.
BNSF claimed that the testing was a way of determining whether the high incidence of repetitive-stress injuries among its employees was work-related. Besides testing for HNPP, company-paid doctors also were instructed to screen for several other medical conditions such as diabetes and alcoholism.
BNSF employees examined by company doctors were not told that they were being genetically tested. One employee who refused testing was threatened with possible termination.
On behalf of BNSF employees, EEOC argued that the tests were unlawful under the Americans with Disabilities Act because they were not job-related, and that any condition of employment based on such tests would be cause for illegal discrimination based on disability. The lawsuit was settled quickly, with BNSF agreeing to everything sought by EEOC.
During the next 18 months, undoubtedly employment law attorneys and HR experts will distill the new law and offer compliance advice. To get a head start, read the text of GINA here: http://www.govtrack.us/congress/billtext.xpd?bill=h110-493
Additionally, the NIH has a website with FAQs here: http://www.genome.gov/10002328
More Legal Update articles.
Download entire June Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2008 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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