How to protect yourself from GINA-The Newest Anti-

Discrimination Law

Erica Mason & David GevertzBaker, Donelson, Bearman, Caldwell & Berkowitz, PC

Monarch Plaza, Suite 16003414 Peachtree Road, N.E.

Atlanta, GA 30326-1164404-577-6000©2010 Baker, Donelson, Bearman,

Caldwell & Berkowitz, PC.All rights reserved.

Background ofThe Genetic Information Nondiscrimination Act

• Became Effective November 21, 2009.

• In part, Congress’ enactment of this law reflects an acknowledgement of the great advances made in genetic testing and genomic medicine, including the development of tests to detect precursors to a wide variety of diseases and disorders, including many cancers. However, a number of patients who could benefit from these tests declined to do so out of fear that they might lose their jobs or their insurance coverage if insurance carriers or employers learned of the results.

• Also enacted because many genetic conditions and disorders are associated with particular racial and ethnic groups and gender. Congress found examples of genetic discrimination by employers, including the use of pre-employment genetic screening.

Overview - What GINA Regulates

Title I – Health Insurance

• Amends Employee Retirement Income Security Act of 1974 (ERISA)

• Prohibits adjustment of a premium for a group on the basis of genetic information

• Prohibits requiring an individual or family member to undergo a genetic test

• Prohibits collection of genetic information

• Applies to private, state and federal insurance

Overview - What GINA Regulates

Title II – Employment

• Prohibits discrimination in employment based upon genetic information

• Applies to employers, employment agencies, labor unions, labor-management committee apprentice programs or other training programs that employ 15 or more people, even if you don’t perform genetic testing or actively collect genetic information.

• NOTE: 34 states plus D.C. have enacted similar laws to cover employers with fewer than 15 employees.

Overview - What Is “Genetic Information” ?

(1) An individual’s genetic tests:

“Genetic test” means an analysis of human DNA, RNA, chromosomes, proteins or metabolites that detects human genotypes, mutations, or chromosomal changes

(2) Genetic tests of family members of an individual.

(3) The manifestation of a disease or a disorder in the family members of an individual.

Overview - What Is “Genetic Information” ?

“Family member” is broadly defined:• A dependent• Any other individual who is a first-degree, second-degree,

third-degree, or fourth-degree relative of the individual• Examples

– Children of the individual– Siblings of the individual, half-siblings of the individual– Parents (first degree), grand-parents (second degree),

great-grandparents (third degree), and great-great grandparents (fourth-degree)

– Aunts and uncles (second degree), great aunts and uncles (third degree), nieces and nephews (third degree)

– First cousins (third degree), first cousins once removed (the children of a first cousin) (fourth degree)

Overview - What Is Not “Genetic Information” ?

• Information about the age or sex of an individual

• Whether the subject individual currently has a disease or disorder (but this may be protected under ADA)

• Genetic information does not include tests for alcohol or drug use (where no other genetic information is collected)

Overview - How does GINA effect employers?

1. GINA prohibits employers from using genetic information to make EMPLOYMENT DECISIONS

2. GINA restricts employers from INTENTIONALLY ACQUIRING genetic information about applicants and employees

3. GINA requires that employers keep genetic information that they have or receive about employees CONFIDENTIAL

4. GINA prohibits employers from RETALIATING against employees who complain about violations of GINA

1. GINA prohibits employers from using genetic information to make EMPLOYMENT DECISIONS

• GINA Prohibits employers from discriminating against an employee or job applicant based upon genetic information;and

• GINA prohibits employers from limiting, segregating, and classifying employees based upon genetic information.

• Areas where discrimination may occur:• Hiring• Promotions• Discharge• Compensation• Terms, conditions or privileges of employment

2. GINA restricts employers from INTENTIONALLYACQUIRING genetic information about applicants and employees

• GINA absolutely prohibits an employer from “acquisition” of genetic information concerning an employee or applicant (other than five specific acquisition exceptions).

• An employer may not request, require or purchase genetic information of an individual.

Acquisition Exceptions

1. “Inadvertent acquisition.” The accidental or inadvertent acquisition of genetic information of an individual is not a violation of GINA.

2. “Health or genetic services”:

The employer is allowed to acquire genetic information about an employee where the information is acquired pursuant to program for health or genetic services, but only if:

a. The individual provides written consent;

b. Only the individual and the licensed health care professional receive individually identifiable information; and

c. The individually identifiable information is only available for the purpose of the program and is not available to the employer.

Acquisition Exceptions (continued)

3. “FMLA”: The employer may acquire genetic information where the employer requires family history to comply with the certification requirements under the FMLA.

4. “Publically available”: The employer may acquire genetic information from documents publically available (i.e., information in newspapers and magazines).

5. “Genetic monitoring”: The employer may acquire genetic information where the information is to be acquired for genetic monitoring of the biological effects of toxic substances in the workplace (additional rules for this).

Acquisition Exception 5 - Genetic Monitoring

• Genetic monitoring is only allowed if:a. The employer provides written notice to the employee;b. The employee provides prior, voluntary, and written

authorization or the monitoring is required by federal or state law;

c. The employee is informed of the monitoring results;d. The monitoring is in conformance with federal or state

monitoring regulations; ande. The employer only receives the results of the monitoring in

aggregate terms; orf. Where the employer conducts DNA analysis for law

enforcement purposes of human remains identification.

3. GINA requires that employerskeep genetic information CONFIDENTIAL

• All genetic information must be maintained on separate forms and kept in separate medical files from personnel information.

• Compliance is presumed when genetic information is treated the same way medical information is treated under the ADA (42 U.S.C. § 12112(d)(3)(B)).

Disclosure of Information is Prohibited

An employer may not disclose any genetic information except:

1. To the employee;

2. To certain occupational health researchers conducted in compliance with federal law;

3. In response to an order of a court (provided the employee is notified);

4. To government officials investigating compliance with GINA;

5. Pursuant to certification requirements under FMLA; or

6. To a health agency concerning a contagious disease that presents an imminent hazard of death or a life-threatening illness

4. GINA prohibits employers from RETALIATING

• An employer may not retaliate against an individual because the individual has opposed any practice made unlawful in GINA.

• This exception applies to both the individuals who have been subject to the allegedly unlawful practice, and individuals other than the victims who oppose the unlawful practice.

• “Opposition” not defined: It will likely be defined broadly as under Title VII.

• For example, simply providing adverse information in an internal investigation even if the employee takes no further action on their own to seek to stop or remedy the conduct may be considered “opposition.”

Why this is important: GINA Creates a New Cause of Action

• GINA creates a new cause of action for protected individuals for any employment-related violation of the Act.

• Follows Title VII’s procedures:• Individual can file a charge of discrimination with the

EEOC• EEOC reviews charge and may find there was a

violation or issue employee a “right to sue” letter• Individual may file a federal lawsuit

• Scope of information protected under GINA is broad which makes employers potentially liable for acquisition of information in many contexts.

Why this is important:Damages Under Title II of GINA

GINA incorporates all Title VII Remedies:

• Back Pay (up to two years)

• Front Pay/Reinstatement

• Injunctive Relief

• Attorney’s fees and costs

• Compensatory damages

• Punitive/Liquidated damages

Nexus Between GINA and the FMLA, ADA, HIPAA and State Law

• GINA and FMLA: As discussed, GINA recognizes that employees and their healthcare providers often provide unrequested genetic or family health information in support of an employee’s request for leave. Such disclosures fall into the category of “inadvertent acquisition” so long as the employer’s underlying request for information was not overly broad. However, even inadvertently acquired FMLA-related information is still subject to GINA’s Confidentiality Provisions and must be maintained in separate files.

Nexus Between GINA and the FMLA, ADA, HIPAA and State Law

• GINA and ADA: GINA permits employers to require employees to submit to medical examinations under certain circumstances. However, GINA imposes new limitations on these employer rights. For example, although the ADA allows employers to require a post-offer medical examination for all employees in a particular job, an employer may no longer ask for family medical history or genetic information as part of the examination. The same rule applies for fitness-for-duty or return-to-work exams.

• In addition, GINA’s prohibition against the acquisition of genetic information will govern an employer’s ability to ask specific questions during the ADA’s interactive process. For example, an employer should not proactively ask questions during the interactive process which may involve genetic information. However, if such information is inadvertently acquired during the ADA-process, it again is subject to GINA’s Confidentiality Provisions and must be maintained in separate files.

Nexus Between GINA and the FMLA, ADA, HIPAA and State Law

• GINA and HIPAA: Entities subject to both HIPAA’s Privacy Rule and GINA, such as a hospital that treats patients who also may be an employee of that hospital, must apply the HIPAA Privacy Rule and not Title II of GINA. GINA Title II makes clear that it is not intended to apply to the uses and disclosures of health information governed by HIPAA.

• GINA and State Laws: GINA is not intended to preempt any state laws or local ordinances which afford equal or greater protections related to discrimination or retaliation on the basis of genetic information. Thus, the more employee-friendly law will typically apply.

BOTTOM LINE: What can employers do NOWto protect themselves and comply with GINA?

1. Update equal opportunity statements to include genetic information as a prohibited basis for employment decisions.

2. Review your employee policies and employee handbook and update them to include protection for genetic information.

3. Obtain and post a copy of the EEOC’s revised “Equal Opportunity is the Law” Poster.

4. Review and update any HR policies regarding handling of genetic information to make sure it is treated the same as medical information under the ADA (separate files containing any genetic information).

What can employers do NOWto protect themselves and comply with GINA?

5. Review wellness programs and forms used with them to ensure that they comply with GINA. The Act provides extensive regulations for employer provided health and wellness programs. Employers must ensure that the entire process -- from written authorizations to communication of results -- complies with GINA.

6. Review social networking policy to ensure that family medical information is not being inadvertently acquired.

7. Add a GINA waiver to all releases and employment-related settlement agreements.

8. Contact employee recruitment or placement vendors to ensure they’ve removed any questions regarding family health information or genetic information from forms being used to locate applicants for your Company.

What can employers do MOVING FORWARD to protect themselves and comply with GINA?Although the Act protects employers from liability for “inadvertent acquisition” of Genetic Information via the FMLA and the ADA, the EEOC has indicated that as a “Best Practice,” employers should take additional proactive steps to avoid inadvertent acquisition.

• EMPLOYMENT APPLICATIONS: Review medical questionnaires associated with employment applications and delete any inquiries into the applicant or employee’s family medical history or other genetic information.

• FMLA FORMS: Review forms used for an employee’s leave-of absence for non-FMLA leave and delete any inquiries into family medical history.

• REASONABLE ACCOMMODATION/ADA FORMS: Review forms for an employee to request an accommodation of a disability and delete any inquiries into the employee’s family medical history or genetic information.

What can employers do MOVING FORWARD to protect themselves and comply with GINA?

4. Review policies, procedures and forms related to post-offer medical examinations to ensure that no family medical history is obtained and no genetic tests are conducted.

5. To avoid inadvertent acquisition of family medical history, add an instruction on all relevant forms that such information should not be provided.

6. Train managers and supervisors not to ask unnecessarily about an applicant’s or employee’s family medical issues and about the basic parameters of this new cause of action.

What can employers do MOVING FORWARD to protect themselves and comply with GINA?

7. Train human resources personnel and “first-line responders” regarding the GINA prohibitions, including how to address employee concerns and complaints about possible genetic discrimination, related privacy violations, and retaliation.

8. Adopt procedures and policies for ensuring that genetic information is kept confidential.

9. Maintain separate confidential medical files for an employee’s genetic information and restrict access to such information. This file should be kept separately from an employee’s other personnel information and must be broadly construed.

Conclusion

• GINA imposes new regulatory burdens on employers• GINA prohibits discrimination based upon genetic

information• GINA restricts employers from acquiring genetic

information• “Genetic information” is broad• GINA provides strong remedies for violations• This could be a “sleeper statute” –The extent to which it

will increase litigation remains to be seen and will require some time to determine

• Quick compliance is the most cost-effective way to avoid litigation under this statute

QUESTIONS?QUESTIONS?QUESTIONS?QUESTIONS?