Congress patrols the gene pool with Genetic Information Non-Discrimination Act

September 14, 2007

Excerpted from Arizona Employment Law Letter and written by an attorney at the law firm of Ford & Harrison LLP

by Kylie B. Crawford

Update: The Genetic Information Non-Discrimination Act (GINA) was signed into law by President George W. Bush on May 21, 2008.

As medical technology advances, scientists and medical professionals are better able to understand the genetic compositions that contribute to various diseases and predispose those with a certain genetic makeup to those diseases.

These advances are having some very positive effects, allowing patients to take a preventive approach to medical care and medical professionals to predict and screen against various problems.

According to some, however, the advances are also creating some negative effects. Employers are increasingly basing their hiring and firing decisions on the results of genetic tests that disclose which employees are at a higher risk of having medical problems down the road. Additionally, insurers are using the results of genetic testing to deny insurance coverage and raise premium rates.

In response to those concerns, the Senate has twice passed bills prohibiting discrimination by insurers and employers. Until this year, there wasn't much action in the House of Representatives regarding genetic discrimination. On April 25, however, it passed the Genetic Information Nondiscrimination Act of 2007, H.R. 493, by a sweeping vote of 420-3.

The bill requires confidentiality of genetic information and prohibits genetic discrimination by insurance providers and employers. Currently, a hold has been put on the bill in the Senate. We will discuss how that affects you.

Update: The Genetic Information Non-Discrimination Act (GINA) was signed into law by President George W. Bush on May 21, 2008.

No splashing!
Under the Genetic Information Nondiscrimination Act of 2007, an employer may not discharge, refuse to hire, or otherwise discriminate against an employee based on genetic information.

Additionally, an employer may not request, require, or purchase an employee's genetic information, with few exceptions, including for compliance with the Family and Medical Leave Act (FMLA) or state family and medical leave laws and for law enforcement purposes.

Any genetic information that is obtained by an employer must be kept confidential and on separate forms and in separate medical files. Disclosure may be made only in very limited circumstances, including to the employee, under a court order, or under the FMLA or state family and medical leave laws. Most of the same limitations apply to employment agencies, labor union organizations, and training programs.

Proponents of the bill believe that the expanded protection will prompt more people to submit to genetic testing. The increase in genetic testing will promote a preventive approach to medical care and will further research in preventing and curing diseases.

Furthermore, proponents of the bill believe that a state-by-state approach creates a disjointed system of protection while a federal law would create a uniform approach to preventing and resolving genetic discrimination.

State-by-state comparison of 50 employment laws in all 50 states, including genetic discrimination

Some think Congress shouldn't dive into this
Opponents of federal genetic discrimination legislation believe that the law will lead to frivolous lawsuits. They also believe that "genetic information" is defined too broadly and that something like high cholesterol could fall within the definition. Critics also express concern that the cost of insurance for healthy people will skyrocket as insurers try to make up for the cost of insuring at-risk people at the same cost as those who don't have a genetic predisposition to certain diseases.

Currently, there's no federal law that specifically prohibits genetic discrimination in the workplace. Some federal laws, however, protect against related sources of discrimination.

For example, the Americans with Disabilities Act (ADA) protects against discrimination based on genetic disabilities in the workplace. While the ADA doesn't explicitly address genetic predisposition discrimination, in 1995, the Equal Employment Opportunity Commission (EEOC) issued an interpretation of the ADA that stated that the agency considered such discrimination the same as discrimination based on an impairment.

The EEOC's interpretations don't have the force and effect of law, however, and therefore there are varying opinions on whether genetic predisposition discrimination is prohibited by the ADA.

There also may be implicit protections against genetic discrimination contained in Title VII of the Civil Rights Act of 1964. Studies have found that specific races and ethnicities are genetically predisposed to certain diseases. Some believe that Title VII protects against discrimination based on those diseases or a genetic predisposition to the diseases because the diseases may be linked to race or ethnicity.

The skinny: current state protections and future implications
Thirty-four states already have laws protecting employees from genetic information discrimination. Many state genetic discrimination laws, however, aren't as comprehensive as the proposed federal law.

Should the bill become a law, employers should consult with their counsel about compliance and be prepared to make changes to the way they deal with employees' genetic information. Of course, we advise that you take the conservative approach here. Even though there is no federal law, you should be careful about making any decisions based on genetics or health.

Update: The Genetic Information Non-Discrimination Act (GINA) was signed into law by President George W. Bush on May 21, 2008.

Copyright 2007 M. Lee Smith Publishers LLC. This article is an excerpt from ARIZONA EMPLOYMENT LAW LETTER. ARIZONA EMPLOYMENT LAW LETTER should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney. For further information about the content of any article in this newsletter, please contact any of the editors.

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