GENETIC INFORMATION NONDISCRIMINATION ACT
By Sharon G. Hobbs

September 2008

The Genetic Information Nondiscrimination Act (GINA), signed into law on May 21, 2008 and effective on November 21, 2009, will prohibit employers from discriminating in employment because of genetic information with respect to an employee and will prohibit employers from acquiring genetic information with respect to an employee or a family member of an employee with specified exceptions such as in the case of certification of FMLA leave, health or genetic services offered by the employer, genetic monitoring of the biological effects of toxic substances in the workplace, and certain other circumstances.

If an employer does possess genetic information about an employee, such information must be maintained in a separate medical file and treated as a confidential medical record of the employee as required by the ADA.

The employer may disclose the confidential genetic information only in certain circumstances such as at the written request of the employee, in response to a court order (and with notification to the employee), to government officials investigating compliance with GINA, in connection with certification of FMLA leave, or to a public health agency if it relates to a contagious disease that presents an imminent hazard of death or life threatening disease (and with notification to the employee).

Employees may not be retaliated against for opposing illegal discrimination or genetic information collection, maintenance, or disclosure or participating in any proceeding or investigation of illegal discrimination, collection, maintenance, or disclosure of genetic information.

Employment agencies and labor organizations will also be prohibited from discriminating on the basis of genetic information or retaliating for opposition or participation in investigations or proceedings related to illegal discrimination or collection. They are also prohibited from acquiring genetic information except in specified circumstances and required to treat any genetic information as confidential medical records.

The law also prohibits health insurers from restricting enrollment or adjusting premiums based on genetic information or genetic services and prevents health plans and insurers from requesting or requiring genetic tests. These provisions are effective May 21, 2009.

Minnesota already has a law prohibiting employers from administering genetic tests or requesting, requiring, or collecting information about the results of genetic tests of employees or blood relatives of employees, or discriminating against an employee based on the results of a genetic test of the employee or blood relative of the employee. The new federal legislation will not preempt any state law to the extent that it may be more protective of employees than the federal law.

These comments are general in nature and the details of the actual law (and regulations which are required by May 21, 2009) must be reviewed before any genetic information is collected or stored.

Sharon Hobbs practices in the areas of business law, employment law and estate planning.

This article is a general discussion of legal issues and is not intended to be legal advice. We would be pleased to review the specific facts and law regarding any given legal matter.