BLAWG

Last week, the Genetic Information Nondiscrimination Act of 2008 (GINA) took effect. By way of GINA, Congress recognized that advances in genetics are invaluable for medical progress, but could give rise to the potential misuse of genetic information to discriminate in employment. Accordingly, Congress enacted GINA to protect the genetic information of employees and prohibit employment discrimination based on genetic information.

Under GINA, “genetic information” includes information about the manifestation of a disease or disorder in an employee’s family or the genetic tests of employees or their families. Genetic tests include participation in clinical research or other genetic services which analyze human DNA, RNA, chromosomes, proteins, or metabolites, that detect genotypes, mutations or chromosomal changes.

GINA prohibits discrimination based on genetic information. Under GINA, it is unlawful for an employer to fire, refuse to hire, or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment based on the employee’s genetic information. Likewise, it is unlawful for employers to deny opportunities to employees or adversely affect their status by classifying them based on genetic information.

GINA restricts an employer’s ability to acquire genetic information of employees. Subject to numerous exceptions, GINA makes it unlawful for an employer to intentionally request, require or purchase genetic information of employees or their families. Among these exceptions are:

1. when an employer inadvertently requests or requires family medical history;
2. where, subject to other conditions, health or genetics services are offered by an employer as part of a wellness program;
3. where an employer requests or requires family medical history from employees under the Family and Medical Leave Act;
4. where an employer purchases documents that are commercially and publicly available that include family medical history; and
5. where, subject to other requirements, the information involved is used for genetic monitoring of the biological effects of toxic substances in the workplace.

However, even an employer that acquires genetic information under one of these exceptions is prohibited from discriminating against employees based on genetic information. Further, an employer possessing genetic information of employees must treat that information as confidential medical records and maintain such records on separate forms and in separate medical files. In addition, there are strict limitations on the disclosure of genetic information of employees.

GINA prohibits retaliation against employees for opposing acts prohibited by GINA. It is also an unlawful employment practice for employers to retaliate against employees because they opposed any act or practice made unlawful by GINA.

Finally, in addition to the foregoing rules applicable to employers, GINA has similar rules which apply to labor organizations, employment agencies and training programs.

Now that GINA has taken effect, employers that possess or seek to acquire genetic information of their employees should consult with an employment attorney.

Similarly, employees that believe that they are the victims of employment discrimination based on genetic information or believe that their employers have improperly acquired, maintained, or disclosed their genetic information should also consult with an employment lawyer.