Genetic Information Nondiscrimination Act of 2008
Darrell Hughes
Posted: 11/25/2009
The provisions of the Genetic Information Nondiscrimination Act (GINA), which was signed into law in May 2008, went into effect on November 21, 2009. Title II of this federal legislation restricts the type of information that employers can use when making employment related decisions. To read the text of the Act, click here and scroll to Title II which begins on page 25.
What are the Non-Discriminatory Practices Outlined in GINA?
Specifically Title II of the Act prohibits employers from making employment related decisions based on genetic information which is defined as genetic tests or the manifestation of a disease or disorder relating to the employee. GINA applies to all Sequent Professional Employer Services Companies as well as to all private, state and local government employers with fifteen (15) or more employees. The Act prohibits any covered employer from:
- failing or refusing to hire, or to discharge, any employee, or otherwise to prohibit discriminating against any employee based on compensation, terms, conditions, or privileges of employment of the employee, as a result of genetic information relating to the employee; and
- limiting, segregating, or classifying employees in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affecting the status of the employee as an employee, because of genetic information relating to the employee.
Employers are also prohibited from obtaining an employee’s genetic information or that of a family member. The only time the use of genetic information is permitted is when the information is required as part of an employee’s Family and Medical Leave Act (FMLA) request and/or for an employee’s participation in a company sponsored wellness program. However, when any genetic information is collected for a valid purpose under GINA, this information must be kept strictly confidential.
How will GINA Affect Employers?
Clearly the largest impact GINA will have on employers is prohibiting an employer from hiring, firing and making other employment related decisions based on the genetic information of an employee and/or that of a family member. The Equal Employment Opportunity Commission (“EEOC”) has revised its mandated postings to include information about GINA.
As a result all Sequent Professional Employer Services Companies, as well as all private, state and local government employers with 15 or more employees, should have information about GINA posted along with the other required postings at each of their worksites. On Thursday November 19th, 2009 we emailed a notice about this posting along with a link to the posting that needs to be printed and posted alongside the EEOC poster that was sent earlier in 2009. Click here to read that notice.
As with most legislation, there will be rules adopted by the EEOC relating to the implementation and enforcement of GINA. Draft rules have been published by the EEOC, and they have been made available to the public for comment. But these rules have not yet been finalized. When the final rules are released, you will receive notification from Sequent and guidance on how Sequent can help your company meet the requirements of GINA.
If you have any questions about this recent legislation and how it might affect your business, please contact Sequent.
About the Author
Darrell Hughes is General Counsel for Sequent.
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