Genetic Information Nondiscrimination Act Provisions Take Effect November 21, 2009
The employment discrimination provisions of the Genetic Information Nondiscrimination Act (GINA) take effect later this week, on November 21, 2009. Considered by some to be the first civil rights legislation enacted during this century, GINA prohibits employers with 15 or more employees from discriminating against employees or job applicants based on genetic information; retaliating against individuals who oppose any act made unlawful by GINA; requesting or requiring an employee to provide genetic information; and disclosing genetic information regarding employees or job applicants, except in limited circumstances. Any violations of GINA will subject employers to the same damages/remedies available under Title VII of the Civil Rights Act of 1964, including the recovery of compensatory and punitive damages.
What Is Covered Under GINA?
According to the U.S. Equal Employment Opportunity Commission (EEOC), which has regulatory authority over GINA, "genetic information" includes information gained from genetic tests of applicants, employees, or their family members; information regarding the manifestation of diseases or disorders in employees' family members (family medical history); and requests for or the receipt of genetic services by applicants, employees, or their family members. Genetic information does not include information about the sex or age of an individual or the individual's family members.
GINA defines a "genetic test" as an analysis of human DNA, RNA, chromosomes, proteins, or metabolites that detect genotypes, mutations, or chromosomal changes, but GINA excludes cholesterol tests, liver function tests, HIV tests, and tests for drug and alcohol from the definition. Thus, those tests are not subject to GINA.
GINA allows for the collection of genetic information if the information is:
- Obtained in compliance with the certification requirements of the Family and Medical Leave Act or applicable state law;
- Disclosed during casual conversation;
- Obtained as part of a wellness program, assuming adherence to strict protocol;
- Purchased from commercially available sources;
- Acquired from genetic monitoring of the effects of toxic substances in the workplace; or
- Used or disclosed for law enforcement purposes.
What GINA Means For Employers
GINA expands the list of protected classifications for which discrimination in the workplace is prohibited. Thus, employers should consider taking the following steps to ensure compliance with GINA:
- Revise equal opportunity, non-discrimination, and anti-harassment policies to prohibit discrimination and harassment based on genetic information.
- Supervisors should be trained regarding compliance with GINA and any related policies.
- Review document retention practices and employment forms, including employment applications, medical certification forms, and fitness-for-duty forms, to ensure genetic information is not collected. To the extent that genetic information is obtained from employees or job applicants, that information must be maintained in a confidential file that is separate from an employee's personnel file.
- Display the new version of the EEOC's "Equal Employment Opportunity Is The Law" poster, which has been revised to include genetic information. The poster may be downloaded at http://archive.eeoc.gov/posterform.html. Employers must display the new poster effective November 21, 2009.
If you have any questions regarding GINA, the EEOC's new posting requirements, or how your employment practices may be affected by GINA, please contact: