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Genetic Information Non-Discrimination Act Becomes Law

On May 21, 2008, President Bush signed into law the Genetic Information Non-Discrimination Act (GINA). GINA, which has been called "the first civil rights law of the 21st century," would prohibit discrimination against individuals on the basis of their genetic information in both employment and health care. The employment provisions of GINA become effective on November 21, 2009, and the provisions pertaining to group health plans become effective on May 21, 2009.

In brief, GINA will prohibit an employer from discriminating against an individual in the hiring, firing, compensation terms or privileges of employment on the basis of genetic information of the individual or family member of the individual. GINA defines a family member as (1) the spouse of the individual, (2) a dependent child of the individual, including a child who was born to or placed for adoption with the individual, or (3) parent, grandparent or great grandparent. GINA forbids an employer from requesting, requiring or purchasing genetic information on the individual or family member except (1) where the employer inadvertently requests or requires the information, (2) for genetic services offered by the employer (including wellness programs), (3) for purposes of complying with the Family and Medical Leave Act, and (4) where the employer purchases documents that are commercially available. GINA will allow state laws that are more stringent in the requirements, standards or implementations than those contained in GINA to supersede the new federal law.

GINA does allow for genetic monitoring of biological effects of toxic substances in the workplace, but only if (1) the employer provides written notice of the monitoring to the employee, (2) the employee agrees to the monitoring in writing or the monitoring is required by federal, state or local law, (3) the employee is informed of the results of the test, (4) the monitoring conforms to any federal or state law, including rules promulgated by OSHA, and (5) the employer receives the results of the tests in aggregate terms.

Employer groups are concerned about the potential effects of GINA, including whether the "inadvertent" language of GINA is sufficient protection for employers. For example, a manager who visits a sick employee in the hospital and learns the employee's malady has a genetic basis would not have obtained the information inadvertently. Employer groups are also concerned that GINA leaves more pro-employee state laws undisturbed.

As under Title VII, individuals asserting employment discrimination based on their genetic information must file an EEOC charge before proceeding to court. A plaintiff who prevails in court may recover the damages set out in the Civil Rights Act of 1991. As in cases under Title VII and the ADA, compensatory and punitive damages would be capped at $300,000. Unlike Title VII, GINA specifically precludes "disparate impact" cases. Recovery of attorneys' fees is permitted. GINA also prohibits retaliation.

In addition to the above, Section 206(b) of GINA, which concerns the disclosure of genetic information, creates a potential trap for the employer. The Section permits disclosure of genetic information in only very limited circumstances, which do not include responding to a subpoena or a civil discovery request. An employer that inadvertently produces genetic information in response to a subpoena would violate GINA because the Act does not require a knowing disclosure to support such a claim. Consequently, we recommend that you strongly consider screening all medical information upon receipt to determine whether it might fall within the definition of 'genetic information' and, if so, to file that information separately from all other medical information with a note that the information should not be produced except in response to a court order.

If you have any questions regarding this, or any other legal issue, please feel free to contact a member of Greenebaum's Labor and Employment Practice Group. Click here for a complete roster.

This communication is provided as general information rather than legal advice. Questions about individual situations should be addressed to the attorney of your choice. The regulations governing legal advertising in the states of Kentucky, Ohio and Tennessee require that communications of this kind contain the following statement: THIS IS AN ADVERTISEMENT. Kentucky law does not certify specialties of practice.

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