New Federal Law Outlaws Genetic Discrimination Nationwide
By Trish Lewis, Esq. Consultant, Boston/New England (800) 727‐2766 tlewis@EPSpros.com Does your state have a genetic discrimination law? Chances are it does ‐‐ a majority of states do. Nevertheless, the provisions of each state law vary and your duties as an employer vary. In an effort to fill in the patchwork of state laws and set a national standard of nondiscrimination, the federal government has enacted the Genetic Information Nondiscrimination Act (“GINA”). Signed into law on May 21, 2008 by President Bush, GINA was enacted to protect individuals from genetic discrimination in both employment and health care. The federal government, however, has given employers and health insurance providers plenty of time to prepare for the law: GINA’s employment law provisions are effective November 21, 2009, while the health care provisions are effective May 21, 2009. Why the need? Rapid advances in genetic science have opened major new opportunities for medical progress, including early detection of illness, but these advances have also given rise to the potential misuse of genetic information to discriminate in employment and health insurance. While there have been few, if any, actions brought against employers in states with genetic discrimination laws, cases of discrimination that were not litigated have been reported and proponents of GINA have argued that the law was needed to combat fear of discrimination with respect to this rapidly developing scientific area. In fact, numerous polls have shown that fear of adverse employment actions and denial of access to health insurance are a widespread cause why individuals decline to take genetic tests or to engage in clinical testing. Furthermore, issues of genetic discrimination in the workplace have arisen in cases involving other discrimination laws. For example, blood tests for sickle cell trait were found to give rise to a Title VII claim in Norman‐Bloodsaw v. Lawrence Berkeley Laboratory (135 F.3d 1260, 1269 (9th Cir. 1998)), where the court ruled in favor of the employees. In another case, the U.S. Equal Employment Opportunity Commission (EEOC) mediated a $2.2 million settlement with The Burlington Northern and Santa Fe Railway of the EEOC’s lawsuit which alleged that BNSF violated the Americans with Disabilities Act of 1990 (ADA) by genetically testing or seeking to test 36 of its employees without their knowledge or consent. The genetic test was part of a comprehensive diagnostic medical examination that BNSF required of certain employees who had filed claims or internal reports of work‐related carpal tunnel syndrome injuries against the Company. While this case was brought under the ADA, it was clear that employers had access to, and the ability to use, genetic information in making employment related decisions on the basis of characteristics that have no bearing on job performance, instead of an individual’s qualifications and ability to perform a job. As a result of these cases and history, Congress felt a compelling public interest in relieving the public’s fear of discrimination and in prohibiting its actual practice in employment and health insurance.
Employment Discrimination Provisions Under Title II (the Employment Discrimination section of the law), employers may not discriminate on the basis of genetic information (regardless of how the employer obtains the information) in hiring, termination, compensation, and other terms and conditions of employment. Employers also may not limit, segregate, or classify the employee in any way that would deprive the employee of employment opportunities or otherwise adversely affect the employee’s status because of his/her genetic information. “Genetic information” is defined as an individual’s genetic tests and the genetic tests of his/her family members, as well as any “manifestation of a disease or disorder” in a family member. A “family member” is not limited to blood relatives and includes: 1) the employee’s spouse; b) a dependent child of the individual, including a child placed for adoption with the individual; and c) a parent, grandparent or great‐grandparent. Employers may not require genetic tests or collect or purchase genetic information except in very limited and specifically‐defined circumstances: • when the employer needs information for compliance with the Family Medical Leave Act or state family and medical leave laws; • when used for an employer‐sponsored genetic service or wellness program; • when the employer needs such information to monitor the adverse effects of hazardous workplace exposures (but only under certain conditions as specified by GINA); • when the employer inadvertently receives genetic information about employees, e.g., when employees are standing around during break casually discussing such information; • when genetic information and family medical history are “commercially and publicly available” (e.g., though newspapers, magazines, etc.). GINA requires employers to keep confidential any genetic information they receive. Like the ADA, the law requires that such information be kept on separate forms in separate medical files. Such information cannot be released except as follows: 1) to the employee at his/her request 2) to an occupational or other health researcher; 3) in response to a court order; 4) to government officials who are investigating an employer’s compliance with GINA; 5) in connection with an employee’s compliance with the FMLA and/or state medical leave certification requirements; or 6) to a public health agency. The remedies for violation of the employment provisions are the same as those provided under Title VII for unlawful discrimination and retaliation. Unlike Title VII, however, GINA currently does not allow disparate impact claims. The law, however, mandates that the EEOC establish a commission six years after the enactment of GINA (2015) to evaluate whether there should be a disparate impact cause of action in genetic discrimination cases.
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Health Insurance Provisions Under Title 1 of GINA, group health plans, individual plans, and Medicare supplemental Plans are prohibited from using genetic information in enrollment restrictions and premium adjustments and from requesting or requiring genetic testing. GINA also requires that the Health Insurance Portability and Accountability Act of 1996 (HIPAA) be amended to require that genetic information be treated the same as health information and that disclosure of such information not be considered a “permitted use or disclosure” under those regulations. What actions should employers take? As the employment provisions of the law do not become effective for twelve months, employers have plenty of time to prepare for compliance with the law. A prudent employer is well‐advised to take the following steps: 1. Revise your policies and procedures to make them compliant with the law. This includes revising your policies and equal opportunity employment statements to include non‐discrimination on the basis of genetic information. 2. Inform your managers and employees of GINA’s requirements and their obligations under the law. 3. Separate any genetic information about employees (however obtained) into separate confidential medical files. 4. Be familiar with and understand any genetic discrimination laws in the states where your employees are located. While more than 30 states have enacted genetic discrimination laws, the scope and coverage of the laws vary widely. Many of the state laws are more stringent than GINA in their requirements and standards. GINA specifically provides that the more stringent state laws will supersede GINA. 5. Finally, keep your eyes open for further guidance regarding GINA. The Equal Employment Opportunity Commission, as well as the Departments of Labor, Health and Human Services and Treasury, are issuing regulations regarding the law over the next twelve to eighteen months. EPS will be reviewing the regulations and other guidance as they become available and will keep you informed to ensure your compliance with the law. About the Author Trish Lewis, Esq., is an experienced employment lawyer and human resources professional. In 2001, Trish joined Employment Practices Solutions as a Consultant, where she offers her significant employment relations expertise to organizations across the nation. As an experienced trainer, Trish provides anti‐harassment and anti‐discrimination, conflict resolution and diversity classes, to name a few, to both private and public sector employers. She also provides sensitivity training and coaching for individual employees. As an experienced investigator, Trish investigates and reports on complaints relating to workplace harassment, discrimination, retaliation, and other employee misconduct. She also conducts FLSA and general HR audits of the workplace.
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Trish practiced employment and labor law exclusively at Boston law firms Peabody & Brown and Deutsch Williams Brooks DeRensis Holland & Drachman, P.C., where she represented management clients in defending wrongful termination, harassment, discrimination and contractual claims. Her HR experience is also extensive, having served as an Employee Relations Specialist at Kimberly Quality Care, as the Manager of Human Resources Legal Affairs with BJ’s Wholesale Club and as a Human Resources Consultant with Liberty Mutual Insurance Group. In these positions, she has counseled managers on issues such as sexual harassment, discrimination, workplace violence and performance management. Trish also has extensive experience training managers and employees on employment‐related matters. In addition, she has conducted numerous investigations relating to sexual harassment, discrimination, retaliation and other employee misconduct. Trish received her undergraduate degree from Tufts University and her law degree from Boston College Law School. She is a graduate of the MCAD‐certified discrimination, harassment, and internal discrimination complaint investigations courses. She is a co‐author of Workforce Strategies in A Down Economy. About Employment Practices Solutions, Inc. Employment Practices Solutions, Inc., www.EPSpros.com, a nation‐wide consulting practice, provides organizations with assistance in preventing and minimizing workplace employment claims and lawsuits by providing the highest quality human resources compliance consulting available, including: Complaint investigations and hotline services Employee, management, executive, and human resources on‐site training One‐on‐one coaching, mediation and facilitation of employment disputes Expert testimony Training videos, web based training and reference products
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