New Federal Law Prohibits Discrimination by Employers Based on Genetic Information

BUSINESS ALERT

New Federal Law Prohibits Discrimination by Employers Based on Genetic Information
The Genetic Information Nondiscrimination Act (“GINA” or “the Act”) was signed into law
by President Bush on May 21, 2008. GINA arose out of concerns that advances in and
wider use of genetic testing could lead to new forms of discrimination. The employment
provisions of GINA become effective eighteen months after the date of enactment. The
Act applies to employers with fifteen or more employees. Employers should be aware
of two key provisions in the new law.

First, GINA makes it unlawful for employers to refuse to hire, to discharge, or to
otherwise discriminate against an employee (including applicants) with respect to
compensation, terms, conditions, or privileges of employment because of that
employee’s genetic information. The federal law further prohibits the segregation or
classification of employees because of their genetic information in any way that would
deprive those employees of employment opportunities or otherwise adversely affect
their status as employees. GINA, like Title VII of the Civil Rights Act of 1964, includes
an “anti-retaliation” provision that prohibits discrimination because an individual has
exercised his or her rights under the law.

Second, in addition to prohibiting discrimination and retaliation, The Act includes a
provision making it unlawful, with very limited exceptions, for employers to request,
require, or purchase genetic information about an employee. These exceptions include:
an employers’ inadvertent request or requirement that an employee provide his or her
family’s medical history; certification requirements for family and medical leave under
Federal Statute laws; and the use of genetic information to monitor biological effects of
toxic substances in the workplace.

The language of the Act raises a number of questions for employers. For example,
while employers may not, unless an exception applies, request “genetic information”
concerning their employees. That term is defined quite broadly. This may raise issues
for employers when processing leave and accommodation requests. While GINA
includes an exemption for employers who request family medical history information
under the Family and Medical Leave Act (“FMLA”), an employer’s request for family
medical information related to other types of leave or in relation to an accommodation
request under the Americans with Disabilities Act (“ADA”) may not be exempted.

Employers will need to evaluate and make necessary adjustments to their policies and
practices. Employers and benefit plan administrators should take steps to ensure that
they are in compliance with the Act’s requirements, to make sure that they do not
inadvertently request or receive genetic information about their employees, and to
maintain compliance on an ongoing basis. Some practical steps to take include:

• Revise medical request forms to specify that they are requesting only non-genetic
information and make reference to the Act.
• Train employees who typically collect information about co-workers and applicants
about the restriction on the collection of genetic information.
• Ensure new-hire interviewers avoid questions or discussions with applicants that
may elicit the medical conditions of the applicants’ extended family members.
• As with other discrimination laws, take steps to insure that managers and
supervisors are not making employment-related decisions based on genetic
information.
• Examine existing policies for handling medical information to determine if they are
adequate to address genetic information and develop a policy that separates
genetic information from other accessible records.
• Make sure that health benefit plans comply with the GINA. Both sponsors and
issuers of plans are subject to penalties for any violation.

GINA does not preempt other state and federal statutes that may provide equal or
greater protection for individuals in the area of genetic information discrimination.
Oregon already has laws that provide protection for genetic information in certain
instances. The regulations that will be promulgated by the EEOC and other federal
agencies should be of assistance in determining additional ways in which employers
must modify their behavior to be compliant with GINA. We will provide an update on
GINA when the regulations are issued.

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Our firm’s Business Alerts are intended to provide general information regarding recent
changes and developments in the insurance law area. These publications do not
constitute legal advice, and the reader should consult legal counsel to determine how
this information may apply to any specific situation.

Business Practice Group
HARRANG LONG GARY RUDNICK P.C.

060608-GINA.pdf
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