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Bradd N. Siegel, Fred G. Pressley, Jr., Editors
Porter Wright Morris & Arthur LLP
Vol. 19, No. 6
June 2008
GENETIC TESTING
President signs bill banning genetic discrimination in employment
Jamie A. LaPlante
After more than a decade of effort, supporters of the Genetic Information Nondiscrimination Act (GINA) have finally been granted their wish. Passed overwhelmingly by the Senate and House, GINA was signed into law on May 21, 2008, by President George
W. Bush. This new law prohibits employers and insurance companies from using the results of genetic tests to reject job applications, deny promotions, deny health coverage, or set premiums.
Background
According to a 2001 study by the American Management Association, nearly two-thirds of major U.S. companies require medical examinations for new hires. As a result of recent medical advances, it's possible that genetic information may be revealed in
those exams.
Genetic testing has undergone significant advancements in the past decade because of discoveries made as part of the Human Genome Project, the research project aimed at mapping human DNA and determining the function of each gene. Scientists are now
able to determine which diseases a particular individual is at risk for developing based on his genetic information. A positive result for a particular illness doesn't mean the individual will develop the disease, it simply means he's at
higher-than-average risk.
Scientists can also determine, for many hereditary diseases, whether an individual has a disease-causing gene and whether the individual is at risk for passing that disease on to his children. Many Americans are fearful when their doctor orders
genetic testing because they worry that the results will be reported to their insurance carrier or employer and used against them. It's that fear that causes many individuals to forgo genetic testing ― often to the detriment of their own health
and research advancement. Increased genetic testing and research are essential to the Human Genome Project and to efforts to develop early detection and treatment of illnesses with hereditary links.
GINA's history
The idea of protecting employees against the use of genetic information by employers and insurance companies has been debated for more than a decade. Yet in 2008, such a bill passed with little opposition and broad bipartisan support. The Senate
passed the bill 95-0 on April 24, and the House adopted the Senate's version of the bill on May 1 with a 414-1 vote. It was then sent to the President, who signed it into law on May 21.
What is GINA?
GINA has three parts: Title I: Genetic Nondiscrimination in Health Insurance, Title II: Prohibiting Employment Discrimination on the Basis of Genetic Information, and Title III: Miscellaneous Provisions.
The first part of the Act amends the Employee Retirement Income Security Act of 1974, the Public Health Service Act, and the Internal Revenue Code to prohibit group health plans from adjusting premiums on the basis of genetic information or using
genetic information for underwriting purposes or enrollment decisions. It also prohibits group health plans from requesting or requiring covered individuals to undergo genetic testing.
The Act doesn't, however, limit a health care professional's ability to order a genetic test or a health plan's ability to use the results of that test to make a related claim decision. Additionally, it permits group health plans to conduct voluntary
genetic testing for research purposes so long as the information isn't used for underwriting purposes and the plan notifies the Secretary of Health and Human Services of the study. The Act also has provisions affecting insurers in the individual and
Medicare supplement insurance markets.
Title II prohibits employers, employment agencies, labor organizations, and joint labor-management committees from discriminating on the basis of genetic information. Specifically, it prohibits employers from using genetic information to:
- refuse to hire;
- discharge;
- deny admission to training or apprenticeship programs;
- limit, classify, or segregate employees in a way that would adversely affect their status as employees; or
- engage in any other
discrimination with respect to compensation, terms, conditions, or privileges of employment.
Employment agencies may not refuse to refer an individual for employment, and labor organizations may not exclude or expel a member based on genetic
information. Employment agencies and labor organizations are prohibited from taking actions that would result in an employer discriminating against an employee or applicant. It's important to note that the Act prohibits only intentional
discrimination. Its text expressly rejects any disparate impact liability.
The Act further prohibits covered entities from requesting, requiring, or purchasing an employee's genetic information except when the following apply:
- it is necessary to comply with certification requirements of family and medical leave laws;
- the information is part of a monitoring program of the biological effects of toxic substances in the workplace; or
- the employer is a
forensic laboratory that conducts DNA analysis for law enforcement purposes.
The Act specifies that any employee genetic information you lawfully possess must be maintained separately as a confidential medical record, presumably in the same
manner as family and medical leave certifications or disability information. Likewise, it protects employees against disclosure of that information by employers. At the present time, there are no proposed regulations to further guide compliance.
Bottom line for Ohio employers
You should take note of this new type of prohibited employment discrimination, especially if you have a self-insured group health plan and require medical examinations and testing. You also should be aware that group health insurance plans may not
adjust premiums or deny coverage on the basis of genetic predispositions. Further, you may not request genetic testing as a condition of employment. If you come into possession of genetic information, likely as part of a medical leave or disability
accommodation request, you now have a duty to refrain from taking any employment actions based on the information. Additionally, you must avoid disclosure and maintain the information as a confidential medical record.
Copyright 2008 M. Lee Smith Publishers LLC
OHIO EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Ohio employment law. Questions about individual problems should be addressed to the employment law
attorney of your choice.
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