GINA Goes into Effect. 

January 2010

President Bush in May 2008 signed the Genetic Information Nondiscrimination Act (GINA) and it formally took effect as of November 21, 2009. In explaining the purpose for the law, Congress identified the great strides that science has made in the field of genetic research and the need to encourage individuals to participate in that research, as well as a recognition that genetic research can be used to exclude individuals from insurance and employment who are known or believed to be predisposed to health problems.

What is it? Like other federal nondiscrimination statutes (it applies to employers of 15 or more persons), GINA prohibits discrimination against employees based on a factor that is outside their ability to control. GINA addresses genetic information, which includes testing of an employee or employee’s family member, information regarding the possible manifestation of a disease or disorder in family members, or participation in studies or counseling relating to genetic predisposition to diseases or disorders. The Act excludes information relating to sex or age from the definition of “genetic” information. 

The law states that employers may not use genetic information in making employment decisions. There are no exclusions listed in the statute. GINA also states that employers generally cannot acquire genetic information on employees, except for a handful of situations where it is volunteered by the employee, necessary to comply with other federal laws (e.g., certification of a serious health condition for FMLA leave), or required for participation in voluntary wellness programs or mandatory testing for safety risks in the workplace (e.g., OSHA compliance). Lastly, GINA requires that any genetic information obtained by the employer be segregated and maintained in a separate confidential medical file, the same as information relating to a disability under the ADA. GINA does not affect the protections already afforded to individuals under HIPAA. 

Harassment of an individual based on his or her genetic information is prohibited under GINA the same way Title VII and other anti-discrimination laws prohibit harassment. Retaliation for complaining or participating in a complaint also is prohibited. GINA has the same basic remedies and enforcement mechanism as other federal anti-discrimination laws and the U.S. Equal Employment Opportunity Commission (EEOC) is the government agency charged with its enforcement. EEOC has drafted interim regulations, which are expected to be finalized and put into effect next year.