December 03, 2009
Author: Maria Greco Danaher
Organization: Ogletree, Deakins, Nash, Smoak, & Stewart, P.C.
With little fanfare and even less reaction from employers, the Genetic Information Nondiscrimination Act (GINA) took effect on November 21, 2009. GINA generally prohibits employers, employment agencies, and unions from collecting genetic information – which specifically includes family medical history - related to employees or applicants. The law also precludes any type of genetic testing of employees or applicants.
The procedures and remedies associated with GINA parallel those of Title VII, the federal non-discrimination law, and prohibit discrimination in hiring, training, and placement of individuals because of their genetic information. GINA’s provisions related to the treatment and non-disclosure of genetic information are taken from the Americans with Disabilities Act’s procedures regarding the confidentiality of medical information. GINA generally precludes employers from obtaining and sharing medical information that falls within the definition of genetic information.
While GINA is now in effect, the EEOC’s final rule, which will provide direction regarding enforcement, has not yet been issued. The proposed regulations are in the final stages of review, but there has been no word as to when the White House Office of Management and Budget (OMB) will approve those regs. Once approved, the regulations will face a final vote by the EEOC commissioners, and a subsequent final publication in the federal register.
Employers’ preparation for that final approval should include updating workplace posters (the EEOC already has issued a revised version of its anti-discrimination poster that includes reference to GINA), revising handbook and policy manuals, and generally informing and training supervisors and managers that genetic bias is now prohibited. That training should include the warning that companies may be held liable for retaliation under GINA is they take adverse action against an employee or applicant whose genetic information has been disclosed to the company, even if that disclosure was made through informal communication. Therefore, companies should be sensitive to the day-to-day conversations among employees, and should take action to prevent or stop discussions related to an individual’s family medical history, in order to prevent such information from becoming the actual or perceived basis for subsequent adverse employment actions, either of which could form the basis of a claim of discrimination under GINA.