Wednesday, November 18, 2009

GINA takes effect Saturday, November 21

Next week, we will all gather around the dining room table and share what we are thankful for. Next week also brings employers something that they may not be thankful for – a new employment law to comply with. The Genetic Information Nondiscrimination Act, which President Bush signed into law 18 long months ago, finally takes effect Saturday, November 21. Let’s take a quick look at what GINA means for businesses with 15 or more employees (its coverage limit).

  • GINA adds “genetic information” to the list of classes of employees protected by the federal employment discrimination laws.

  • “Genetic information” is broadly defined to cover information about an employee’s genetic tests, the genetic tests of an employee’s family members, and the manifestation of a disease or disorder in an employee’s family members.

  • Drug and alcohol tests are not considered covered “genetic tests.”

  • GINA makes it unlawful for an employer to make an employment-related decision with respect to an employee because of genetic information.

  • GINA also makes its generally illegal for an employer to request, require, or purchase genetic information about an employee or an employee’s family member. Key exceptions include inadvertently obtained genetic information, qualifying health or genetic services such as voluntary wellness programs, FMLA medical certifications, and commercially and publicly available documents. Practically, this means that employers can no longer ask employees for family medical histories.

  • If an employer obtains genetic information about an employee, it must maintain the information on separate forms and in separate medical files and threat it as a confidential medical record of the employee, similar to the treatment of other medical information under the ADA.

  • An employer is only permitted to disclose genetic information upon a specific written request, in response to a court order, to comply with the FMLA’s certification procedures, or other very limited circumstances.

  • Employees have the same rights and remedies for alleged violations of GINA as they do for alleged violations of Title VII.

GINA is the most expansive employment discrimination law to take effect in the last 20 years. For more information, I recommend the EEOC’s informational page on GINA (which includes links to the statute and its proposed regulations), and Steven Greenhouse’s article from the November 15 New York Times.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or