The Genetic Information Nondiscrimination Act of 2008 ("GINA"), is a new federal law prohibiting employment discrimination based on genetic information. The law took effect on November 21, 2009.

"Genetic information" includes an individual's genetic tests, genetic tests of an individual's family members, and family history of particular diseases. Family medical history is included in the definition because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. For example, GINA's protections may be triggered if an employer learns that a particular form of cancer runs in an employee's family because cancer is believed to have a genetic basis.

President George W. Bush signed GINA into law on May 21, 2008. Title I of GINA prohibits insurance companies from using genetic information in connection with issues of eligibility, pricing decisions, and exclusions from coverage. The most recent regulations also prohibit employer health plans from offering a premium discount or other incentives to participate in a health risk assessment if the assessment includes any questions about genetic information. Title II of GINA prohibits employers with 15 or more employees from requesting, requiring or otherwise acquiring genetic information from applicants, employees, and former employees. GINA also prohibits the use of genetic information in making decisions related to any aspect of employment, including hiring, firing, compensation, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. Additionally, employers may not retaliate against employees for opposing or complaining about unlawful employment practices and/or filing a claim pursuant to GINA.

There are numerous exceptions to GINA's prohibitions against the acquisition of employees' genetic information. Exceptions include situations where an employer inadvertently receives genetic information during casual conversations with employees or overhears conversations between coworkers. Another exception applies where an employer receives genetic information as part of the process following an employee's request for reasonable accommodation or Family and Medical Leave Act qualifying leave. However, when an employer inadvertently receives genetic information, the information must be kept strictly confidential and the information should be maintained in a confidential medical file separate from the employee's personnel file. The employer may not use this information as the basis for any employment decisions.

GINA's prohibitions also place new limitations on employers' post-offer policies. Specifically, employers should no longer obtain family medical history or conduct genetic tests of job applicants once an offer of employment has been made, even if the information sought is job-related and requested of all entering employees in the same job category. GINA does not contain an exception for obtaining genetic information where the employer has a legitimate reason to make employment-related decisions based on protected information.

In addition to modifying post-offer policies, employers should consider the following measures to comply with GINA and minimize the risk of inadvertent disclosure:

  • Post the new "Equal Employment Opportunity is the Law" poster at your company's workplace. It was released by the United States Equal Employment Opportunity Commission ("EEOC") and is available on their web site, www.eeoc.gov.
  • Review any employment forms used by your company to ensure that they do not request genetic information.
  • Review your company's policies related to equal employment opportunity, harassment, discrimination and retaliation. As necessary, revise your policies to state that your company does not tolerate discrimination on the basis of one's genetic information.
  • Review your company's policies related to equal employment opportunity, harassment, discrimination and retaliation. As necessary, revise your policies to state that your company does not tolerate discrimination on the basis of one's genetic information.
  • Review your company's record-keeping procedures to ensure that all genetic information is maintained in a confidential medical file separate from employees' personnel files.
  • Train your management employees on GINA's obligations.
  • Inform all employees of any changes to your company's polices, forms, practices and procedures made in response to GINA.
  • Sponsors of group health plans may need to modify their wellness programs, including health risk assessments, to eliminate the collection of genetic information.