Download Genetic Information Nondiscrimination Act

August 15, 2013
This BeneFlash applies to employers with more than 15 employees, including federal, state and local government
employers and churches.
Genetic Information Nondiscrimination Act - GINA
The Genetic Information Nondiscrimination Act (GINA) became effective in 2008 and 2009, but two
recent lawsuits by the Equal Employment Opportunity Commission (EEOC) should alert employers to
an increase in enforcement of this law.
What is GINA?
GINA applies to employers with more than 15 employees. GINA prohibits employers from
discriminating against employees or applicants because of their, or family member’s, genetic
information. Under GINA, it is illegal for employers to use genetic information in making employment
decisions, such as hiring, firing, pay, job assignment, or promotion. Employers may not request,
require, or purchase genetic information from employees or their family members. GINA also places
strict limits on the disclosure of genetic information. And GINA makes it illegal for an insured or selffunded health plan to deny eligibility to enroll for health care benefits, or change plan premiums or
contribution rates, because of an employee’s or family member’s genetic information.
What is Genetic Information?
Genetic information includes:
• Information about an individual’s genetic tests;
• Information about the genetic tests of a family member;
• Family medical history;
• Requests for, and receipt of, genetic services by an individual or a family member; and
• Genetic information about a fetus carried by an individual or family member, or about an
embryo legally held by the individual or family member using assisted reproductive
technology.
When May an Employer Obtain Genetic Information Without Violating GINA?
In most cases, it is illegal for an employer to get genetic information. There are situations when an
employer may request medical information from an employee or applicant and accidentally
obtain genetic information. These include:
• As part of health or genetic services, including wellness programs, provided on a voluntary
basis. The individual receiving the services must give prior, voluntary, written authorization.
• In the form of a family medical history to comply with certification requirements of the
Family Medical Leave Act and for some state or local leave laws or employer leave policies.
Employees may be required to provide family medical history as proof that they are entitled
to leave to care for a family member with a medical condition.
When employers request medical information, they should warn employees and/or health care
providers, verbally or in writing, not to provide genetic information. Suggested “safe harbor”
language is available at the EEOC website (see link below) and on the Compliance portal of the
© 2013 The Benecon Group. All Rights Reserved.
1
P.O. Box 5406, Lancaster, PA 17606 (717) 723-4600 (888) 400-4647
Benecon website. If this type of warning is provided, any acquisition of genetic information will be
considered inadvertent, and therefore will not violate GINA.
Recent Lawsuits
The EEOC filed GINA violation actions against two companies in May and indicated that it is
increasing enforcement of the law. One company was charged with violating the Americans with
Disabilities Act (ADA) and GINA when it rescinded a job offer it made to a woman after information
she provided during a pre-employment physical indicated that she may have carpal tunnel
syndrome. The company violated GINA when it requested genetic information from the woman
and then discriminated against her based on the genetic information. The company paid $50,000
to settle the lawsuit.
The EEOC also filed a class action suit against a company for conducting post-offer, preemployment medical exams of applicants, and annual medical exams of employees, which
included requests for information on family medical history. The company violated GINA by using
information obtained in mandatory medical questionnaires to discriminate against applicants,
individuals with disabilities or perceived disabilities, and pregnant women. The company also
violated GINA by requesting the information during the hiring process.
More Information
The EEOC has a very helpful Q&A on GINA on their website at
http://www.eeoc.gov/laws/regulations/gina_qanda_smallbus.cfm . Our January 2011 BeneFlash
on GINA Final Regulations provides more details on the requirements and is available on the
newsletter page of our website at http://benecon.com/about-us/benefit-briefs/ .
If you have questions about GINA, please contact Danielle Omans at The Benecon Group at
[email protected] .
This BeneFlash is provided for informational purposes only and does not constitute legal advice. It contains only a summary of the
applicable legal provisions and does not purport to cover every aspect of any particular law, regulation, or requirement. Benecon
serves employers and producers in Pennsylvania. Information contained in this newsletter is applicable to federal and Pennsylvania
laws and regulations. Depending on the specific facts and location of any situation, there may be additional or different
requirements. Please use this BeneFlash as a guide and not as a definitive description of your compliance obligations.
© 2013 The Benecon Group. All Rights Reserved.
2
P.O. Box 5406, Lancaster, PA 17606 (717) 723-4600 (888) 400-4647