Complying with GINA’s Employment Provisions: Effective Date is Nov. 21
Employers must begin complying with the Genetic Information Non-Discrimination Act on November 21, 2009.
Title II of GINA prohibits private and state and local government employers with 15 or more employees from:
discriminating against employees or applicants based on genetic information in hiring or any other terms, conditions or privileges of employment;
- acquiring genetic information, except pursuant to the following limited exceptions: (a) inadvertent acquisitions ( i.e., the "water cooler" exception where a manager or supervisor overhears someone talking about a family member’s illness, (b) acquisitions obtained as part of a voluntary wellness program, (c) acquisitions through the FMLA certification process, (d) acquisitions through commercially and publicly available documents, (e) acquisitions where the information involved is to be used for genetic monitoring of the biological effects of toxic substances in the workplace and (f) acquisitions where the employer conducts DNA analysis for law enforcement purposes as a forensic laboratory or for purposes of human remains identification; and
- disclosing that genetic information.
Employers must keep genetic information confidential and in a separate medical file (genetic information may be kept in the same file as other medical information in compliance with the ADA). Genetic information includes not only information about an individual's genetic test and the genetic tests of an individual's family members, but also information about any diseases, disorders or conditions that someone's family member has.
Covered entities also cannot retaliate against individuals who assert their rights under GINA. In addition, only disparate treatment claims can be made under GINA, not disparate impact claims. GINA does not preempt state laws that that provide equal or greater protections. However, the law requires that six years after its enactment, a Genetic Nondiscrimination Study Commission be established. The commission would be required to review the developing science of genetics and advise Congress on the advisability of providing for a disparate impact cause of action under this Act.
According to the law, genetic information includes information about an individual’s genetic tests, genetic tests of the individual’s family members, and a family medical history. Genetic information also includes the participation in genetic research. Genetic information does not include information about the sex or age of an individual or the individual’s family members, or information that an individual currently has a disease or disorder.
The same remedies available under Title VII are available under Title II of GINA. An aggrieved individual may seek reinstatement, hiring, promotion, back pay, injunctive relief, pecuniary and non-pecuniary damages (including compensatory and punitive damages) and attorneys’ fees and costs.
Title VII’s cap on combined compensatory and punitive damages also applies to actions under Title II of GINA (The cap on combined compensatory and punitive damages (excluding past monetary losses) ranges from $50,000 for employers with 15-100 employees to $300,000 for employers with more than 500 employees). Punitive damages are not available against federal, state, or local government employers.
Title I of GINA prohibits discrimination in health coverage, forbidding health insurers or health plan administrators from requesting or requiring genetic information of an individual or the individual’s family members, or using it for decisions regarding coverage, rates or preexisting conditions. Title I took effect for health plan years beginning one year after the May 21, 2008 enactment date when President Bush signed GINA into law.
On March 2, the EEOC issued proposed regulations implementing GINA’s employment provisions. While the agency anticipated that a final rule would be published "well in advance of the law's effective date," we are less than one week away and the rule has not yet been finalized. However, on October 22, the agency updated its "EEO is the Law" poster to reflect GINA.
Even if the GINA regulations are not finalized on or before November 21, employers must still begin complying with the law and post the updated EEO poster (or the supplement available on the agency’s website) by that date. As a result of GINA, employers will need to learn new ways of dealing with medical and health-related information and should talk with their managers and supervisors about these issues.
Reprinted with permission. © CCH
<p> Complying with GINA’s Employment Provisions: Effective Date is Nov. 21
Employers must begin complying with the Genetic Information Non-Discrimination Act on November 21, 2009.
Title II of GINA prohibits private and state and local government employers with 15 or more employees from:
discriminating aga</p>
Complying with GINA’s Employment Provisions: Effective Date is Nov. 21
/news/alerts/complying_with_ginas_employment_provisions_effective_date_is_nov_21.aspx