November 23, 2009 Genetic Information Nondiscrimination Act

KEEPING YOU INFORMED…

We would like to inform you of federal legislation that took effect on November 21, 2009.  It restricts the acquisition and disclosure of genetic information and prohibits certain employers from discriminating against applicants or employees on the basis of genetic information. 

This new law, Title II of the Genetic Information Nondiscrimination Act (“GINA”), applies to private and state and local government employers with 15 or more employees, employment agencies and labor organizations. 

GINA makes it an unlawful employment practice for an employer to: (1) fail or refuse to hire, or discharge, any employee, or otherwise to discriminate against any employee with respect to the employee’s compensation, terms, conditions or privileges of employment, because of the employee’s genetic information; or (2) limit, segregate, or classify employees in any way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect the status of the individual as an employee, because of his/her genetic information.

“Genetic information” is defined as information regarding: (1) an individual’s genetic tests; (2) the genetic tests of an individual’s family members; and (3) the manifestation of a disease or disorder in an individual’s family members.  The term does not include information about an individual’s gender or age.  

“Genetic tests” include analyses of human DNA, RNA, chromosomes, proteins, or metabolites that detect genotypes, mutations, or chromosomal changes.  Genetic tests do not include analyses of proteins or metabolites which are directly related to a manifested disease, disorder, or pathological condition that could reasonably be detected by a health care professional with appropriate training and expertise in the relevant field of medicine.

“Family members” include an individual’s dependents or first, second, third or fourth-degree relative.

GINA also makes it an unlawful employment practice for an employer to request, require or purchase an employee’s genetic information or the genetic information of an employee’s family members except in certain situations, which include those where:

 1.  an employer inadvertently requests or requires family medical history of the employee or the employee’s family members (for example, where a supervisor overhears an employee talking about a family member’s illness);

2.  health or genetic services are offered by the employer, provided that the request, requirement or purchase is in accordance with GINA’s requirements;

3.  an employer requests or requires family medical history from the employee to comply with the certification provisions of the Family and Medical Leave Act or State family and medical leave laws;

4.  an employer purchases documents which are commercially (and publicly) available (for example, newspapers, magazines, periodicals, and books) which include family medical history;

5.  the information involved is to be used for genetic monitoring of the biological effects of toxic substances in the workplace; or

6.  the employer conducts DNA analysis for law enforcement purposes and requests or requires genetic information of its employees, but only to the extent that the genetic information is used for analysis of DNA identification markers to detect sample contamination.

If an employer legally possesses genetic information about an employee, GINA requires that the employer treat the information as a confidential medical record and maintain it on separate forms and in separate medical files.  The employer may only disclose this genetic information:

 1.  to the employee, upon written request;

2.  to an occupational or other health researcher if the research is conducted pursuant to applicable law;

3.  in response to a court order;

4.  to government officials investigating compliance with GINA;

5.  in connection with the employee’s compliance with the certification provisions of the Family and Medical Leave Act or state family and medical leave laws; or

6.  to a public health agency, but only with respect to an employee’s family member who manifests a contagious disease that presents an imminent hazard of death or life-threatening illness and where the employee whose family member is involved is notified of the disclosure. 

The New York State Human Rights Law already prohibits employers of at least four persons, employment agencies, and labor organizations in New York from discriminating against applicants or employees based on predisposing genetic characteristics.  Thus, once GINA becomes effective, employers which engage in genetic discrimination may be susceptible to claims pursuant to both federal and State law. 

We recommend that you ensure that any required medical examinations or questionnaires not seek information regarding the genetic information of applicants, employees or their family members and that you avoid asking applicants or employees about genetic testing or test results or whether a particular health condition runs in the family. 

The Equal Employment Opportunity Commission is currently preparing final regulations implementing GINA.  Even though these regulations were not finalized by November 21, 2009, employers must still comply with the law and post the updated Equal Employment Opportunity poster by that date.  This poster is available through the following website: http://www1.eeoc.gov/employers/poster.cfm.

Please do not hesitate to contact us if you have any questions about this new law.

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW.  IT IS NOT TO BE REGARDED AS LEGAL ADVICE.  THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.   

© Lamb & Barnosky, LLP, 2009