The Genetic Information Nondiscrimination Act



Posted: Thursday, November 12, 2009

by Crystal O'Brien
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.

Prohibited discrimination includes failing to hire or discharging an employee or otherwise discriminating against an employee with respect to compensation, terms, conditions, or privileges of employment based on that employee's, or prospective employee's, genetic information. An employer may not use genetic information to limit, segregate, or classify employees in such a way as to deprive them of employment opportunities or adversely affect their status as 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:

More information on GINA can be found at the National Human Genome Research Institute website .

Crystal M. O'Brien, Esq. serves as MMC's Employment Law Manager/Corporate Counsel. After receiving a double-degree in psychology and sociology from Oberlin College in 1988, Ms. O'Brien earned a workers' compensation insurance claims adjusting license in 1991. She completed post-graduate studies in Human Resources Management at Portland State University's Graduate School of Urban & Public Affairs from 1996-1998 and earned a Juris Doctorate and Certificate in Dispute Resolution from Willamette University College of Law in 2001. Immediately following law school, Ms. O'Brien served as a judicial clerk to the Honorable Faith Ireland (ret.) of the Washington State Supreme Court. She is licensed to practice law in California Washington as well as before U.S. District Courts in each state. Collectively, Ms. O'Brien has 19 years of litigation experience.

To view her complete bio click here.

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