GINA: New Law Prohibits Genetic Information Discrimination
President George W. Bush recently signed into law the Genetic Information Nondiscrimination Act of 2008 (“GINA” or the “Act”) which prohibits employers, employment agencies, labor unions and health insurers from discriminating on the basis of genetic information. Under GINA, which becomes effective in 2009, “genetic information” is broadly defined to include: (1) an individual’s own genetic tests; (2) the genetic tests of family members; and (3) the manifestation of a disease or disorder in family members.
The Act aims to allow individuals to take advantage of genetic testing, technologies and therapies without “fear of losing their privacy, their jobs and their health insurance,” as noted by Sen. Edward Kennedy (D-Mass.).
Significantly, GINA amends the penalty provisions under federal wage and hour laws, as is discussed below.
Employers’ Obligations Under GINA
GINA expands the protections afforded by other federal anti-discrimination laws, including Title VII of the 1964 Civil Rights Act (“Title VII”), by prohibiting discrimination in employment based on not only an employee’s own genetic information, but also the genetic information of the employee’s dependents and relatives, and relatives of the employee’s dependents. Under the Act, employers with more than fifteen (15) employees are prohibited from:
- Discriminating against employees in hiring, termination, compensation and the terms, conditions or privileges of employment on the basis of genetic information, regardless of how it is obtained;
- Requesting, requiring, or purchasing genetic information, except in very limited circumstances, such as if the information is required to comply with medical certification requirements of federal or state family and medical leave laws; and
- Retaliating against an employee who opposes discrimination based on genetic information.
GINA also requires employers to maintain the confidentiality of genetic information received, by maintaining such information on separate forms and in separate medical files.
Disclosure of genetic information to third parties is prohibited under the Act, except in very limited circumstances such as: (a) upon the employee’s request, (b) to an occupational or other health researcher, (c) pursuant to court order, (d) to a government official investigating compliance with the Act, (e) in connection with the employee’s compliance with federal or state leave laws, and (f) to a public health agency.
Remedies and Enforcement Under Employment Provisions
The Equal Employment Opportunity Commission (“EEOC”), among other federal agencies, has the authority to enforce and provide remedial measures under the Act. Aggrieved individuals asserting employment discrimination based on genetic information must file an EEOC Charge of Discrimination before proceeding to court. Remedies and enforcement of the provisions in GINA related to employment discrimination are similar to those under Title VII, except that so-called “disparate impact” claims are not permitted under the Act. Aggrieved employees or applicants may seek remedies including back pay, front pay, attorneys’ fees, costs, and compensatory and punitive damages.
Health Insurance Anti-Discrimination
Employers should also bear in mind that GINA prohibits group health plans and health insurers from:
- Adjusting health insurance premiums or contribution amounts based on genetic information;
- Requesting or requiring an individual to take a genetic information test prior to an individual’s enrollment; and
- Collecting genetic information for underwriting purposes.
GINA mandates that genetic information shall be treated as “protected health information” under the Health Insurance Portability and Accountability Act (“HIPAA”).
For health plans and health insurers, GINA is effective for plan years that begin on and after May 21, 2009.
Wage and Hour Provisions
Significantly, another provision in GINA amends the penalty provisions of the Fair Labor Standards Act (“FLSA”) effective May 21, 2008. The Act increases the penalty for an employer’s willful violation of the FLSA’s overtime and minimum wage provisions from $1,000 to $1,100 per violation.
In addition, the Act announces more stringent penalties for child labor violations, including the imposition of a civil penalty of up to Fifty Thousand Dollars ($50,000) for each child labor violation that results in the death or serious injury of any employee who is under eighteen (18) years old. The penalty may be doubled if the employer’s violation is found to be a repeated or willful violation. “Serious injury” is defined as the permanent loss or substantial impairment of one of the senses (e.g., sight, hearing, etc.); of a bodily member or organ; or of a person’s mental abilities. The phrase also includes paralysis or substantial impairment causing a loss of movement or mobility of a body part.
Although most of GINA does not become effective until November 21, 2009, employers are encouraged to update their policies and practices to ensure timely compliance with the Act. For example, employers should update their employee handbooks and policies to reflect their obligations under the Act, and modify their record keeping practices as required by GINA.
Employers should update their policies and practices to reflect GINA’s state law counterparts, as well. At least thirty-four (34) states, including Massachusetts, have similar laws banning employment discrimination on the basis of genetic information.
As always, we are available to provide wage-and-hour consultation, and to assist with audits and litigation defense in wage-and-hour claims.
If you have any questions regarding GINA or if we can be of assistance in ensuring compliance with this new law, please do not hesitate to contact us.