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Genetic Discrimination Law Now in Effect

On November 21, the Genetic Information Nondiscrimination Act of 2008 ("GINA") became effective. Viewed as a "proactive" measure, this federal law seeks to prevent discrimination in employment and health insurance based on an individual's genetic information that could arise as a result of future scientific advances in genetics.

Genetic testing has grown dramatically in the past decade, and it is increasingly becoming an integral part of health care. Currently, genetic tests for more than 1,400 diseases are clinically available, and hundreds more are under development. The advent of genetic testing raises a number of questions about how an individual’s genetic information can be used by employers.

Title II of GINA makes it unlawful for employers to refuse to hire, discharge or otherwise discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment because of genetic information. GINA also makes it unlawful for employers to limit, segregate, or classify the employees in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee, because of genetic information. Additionally, it is an unlawful employment practice under GINA for an employer to request, require, or purchase genetic information with respect to an employee or a family member of the employee except for certain limited circumstances, including, but not limited to, a request made for FMLA certification purposes.

GINA defines genetic information as that obtained from an individual’s genetic test results, as well as genetic test results of family members and the occurrence of a disease or disorder in family members. Not included would be an analysis of proteins or metabolites that (1) do not detect genotypes, mutations or chromosomal changes, and (2) do not include analyses of proteins or metabolites directly related to a disease, disorder or pathology that could reasonably be detected by a properly trained healthcare professional.

GINA also sets forth the relevant standards concerning confidentiality of genetic information. If an employer possesses genetic information about an employee or family member, such information shall be maintained on separate forms and in separate medical files and treated as a confidential medical record of the employee or family member and shall not disclose genetic information concerning an employee. GINA also contains a prohibition against retaliation by forbidding discrimination against an employee for opposing any act or practice that is made unlawful by GINA or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under GINA.

GINA generally applies to public employers, private employers with fifteen (15) or more employees, employment agencies and labor organizations. Violations of GINA can subject an employer to a variety of penalties. Accordingly, employers should update their nondiscrimination policies and employee handbooks to reflect GINA’s provisions.

The Equal Employment Opportunity Commission ("EEOC") is currently in the process of finalizing GINA regulations. We will continue to monitor the new law and any subsequent interpretations or changes. If you have any questions about GINA or would like to update your nondiscrimination policies and employee handbooks, please contact the labor and employment attorneys at Bingham McHale for more information.

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