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On Monday, November 2, 2009 by Monica Velazquez posted in Employment Law Blog
The Genetic Information Nondiscrimination Act of 2008 (GINA) became law in May 2008. GINA prohibits discrimination by health insurers and employers based on an individual’s genetic information. GINA has two parts. Title I applies to group health plans sponsored by private employers, unions, and state and local government employers, issuers in the group and individual health insurance markets, and issuers of Medicare supplemental (Medigap) insurance. Title II applies to employers and other entities with 15 or more employees (same entities covered by Title VII of the Civil Rights Act of 1964). The Equal Employment Opportunity Commission (EEOC) has issued proposed regulations under Title II of GINA for covered employers. Title II of GINA and its regulations go into effect on November 21, 2009.

GINA prohibits the use of genetic information in employment, restricts the acquisition of genetic information, and strictly limits the disclosure of genetic information. Congress enacted GINA to address these concerns so that the general public would not fear adverse employment- or health coverage-related consequences for having a genetic test or participating in research studies that examine genetic information.
 
What Does GINA Prohibit?
 
GINA prohibits all forms of disparate treatment employment discrimination against applicants, employees, and former employees based on genetic information. This specifically includes limiting, classifying, or segregating employees based on genetic information.  Thus, if an employee is known to have a genetic predisposition to a disease, the employee could not be excluded from a position that might exacerbate his condition.  The prohibition on the use of genetic information is absolute – covered entities may not use genetic information in making employment decisions under any circumstances. GINA also prohibits retaliation against persons who oppose discrimination and requires confidentiality with respect to genetic information (with limited exceptions).
 
To learn more, the EEOC has issued guidance materials on GINA, available at http://www.eeoc.gov/policy/docs/qanda_geneticinfo.html
 
What Practical Steps Should Employers Take?
 
As with any new law or regulations, employers should:
 
1.                  Post the new required poster from the EEOC, available at http://www.eeoc.gov/self_print_poster.pdf
 
2.                  Revise EEO policies to include prohibition against discrimination based on genetic information.
 
3.                  Train personnel on the requirements of GINA, especially those who interview and hire new employees.
 
4.                  If you require post-offer, pre-employment medical examinations or return to work/fitness for duty examinations, make sure the exams and forms requested do not include any inquiries about family medical history.
 
5.                  In discussing reasonable accommodations for a disability or requests for medical leave, employers should not seek genetic information.  The EEOC suggests as a “best practice" that employers who ask employees to have health care professionals provide documentation to specifically state in the request that family medical history or other genetic information should not be provided.
 
6.                  Avoid storing family medical history information in personnel files, as this is genetic information that must be stored in a separate medical file.

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