On May 21, 2008, President Bush signed into law the “Genetic Information Non-Discrimination Act of 2008”. 42 U.S.C. § 2000ff, et seq.

The Act, which amends the Employee Retirement Income Security Act of 1974, the Public Health Service Act, the Internal Revenue Code of 1986 and the Social Security Act, as well as providing new protections to employees, outlines the permissible and impermissible uses of genetic information.  In enacting this legislation, Congress recognized that the advances being made in genetics and genetic illnesses, all of which will assist in the detection and treatment of such diseases before symptoms have begun, have the potential to stigmatize individuals with these genetic markers and open the door to discrimination in a number of areas. The Act, known as “GINA”, is Congress’s response to this new category of discrimination.

The Act defines genetic information as information about an individual’s genetic tests, the genetic tests of family members of an individual, and “the manifestation of a disease or disorder in family members” of an individual.  In its amendments to ERISA, the PHSA, the Internal Revenue Code and the Social Security Act, GINA prohibits insurance companies from adjusting premium or contribution amounts based on genetic information.  Similarly, it prohibits insurers from changing eligibility rules on the basis of genetic information.  Finally, it prohibits insurers from imposing “pre-existing condition exclusions” on the basis of genetic information, except where the individual himself is exhibiting symptoms of the disease a the commencement of the insurance.  To prevent insurers from being tempted to do so, it prohibits them from requiring or requesting that genetic tests be undertaken as part of the insurance process (except in very limited circumstances), or from purchasing such information for underwriting purposes or prior to enrollment.  Penalties for violating these provisions generally involve fines of $2,500 to $15,000, but there are provisions which speak to the possibility of much greater fines.

GINA also makes it unlawful for an employer to “refuse to hire, or to discharge, and employee, or otherwise discriminate against any employee with respect to the compensation, terms, conditions or privileges of employment” because of genetic information. GINA also precludes employers from limiting, segregating or classifying employees on the basis of genetic information in any way that would deprive the employee of employment opportunities or adversely affect the status of the employee as an employee. The Act also prohibits employers from retaliating against individuals has opposed any unlawful acts under the statute, made a charge of discrimination under the Act, or otherwise participated in an investigation, proceeding or hearing under the Act.  To these ends, GINA prohibits employers from requesting, requiring or purchasing genetic information, except where:

(1) the acquisition is inadvertent;

(2) the employer offers health or genetic services such as wellness programs, the employee has consented, only the employee and the health care provider receives the information, and the information is not disclosed to the employer;

(3) the employer requires a medical history as part of an FMLA request;

(4) the employer purchases publicly available documents, such as newspapers and the like, which include family medical history;

(5) where the information is to be used to monitor biological effects of toxic substances in the workplace, as long as the employer provides written notice to the employee, the employee consents or the monitoring is required by law, the employee is given the results of the monitoring, and the monitoring is in compliance with federal and state monitoring regulations; and the employer only receives the results in a form that does not identify individual employees; or

(6) the employer uses employee genetic information as a control in its work conducting DNA analysis for law enforcement purposes as a forensic laboratory or for human remains analysis.

The Act requires that any information so obtained must be kept confidential in the same manner as any other employee medical information, as provided under the Americans with Disabilities Act and the Health Insurance Portability and Accountability Act. These employment non-discrimination provisions all apply equally not only to employers, but also to employment agencies, labor organizations, and apprenticeship/training programs.

Damages for violation of the Act are the same as in Title VII cases, along with costs and fees as provided in 42 U.S.C. §1988, and with the damage caps as outlined in 42 U.S.C. §1981a. The EEOC will be responsible for enforcing the provisions of the Act, which takes effect 18 months after it was signed into law, or in August 2009.

Any questions regarding this case may be directed to Crystal Clark at cclark@tthlaw.com