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Congress Bans Employment and Health Insurance Discrimination Based on Genetic Information

Labor and Employment Update

May 6, 2008

In one of the most recent examples of law catching up with technology, and one of the infrequent recent shows of bipartisan action, Congress last week overwhelmingly passed the Genetic Information Nondiscrimination Act (GINA).  The May 1 House vote was 414-1 and the earlier Senate vote was 95-0.  President Bush had advocated passage of the legislation and has announced his intention to sign GINA, perhaps as early as next week.

GINA will bar both public and private employers, unions and employment agencies from discriminating against employees or job applicants based upon genetic information, prohibit health insurers from denying coverage or setting group premiums based on genetic information and require confidentiality of genetic information.  Employers now covered under Title VII, the Government Employees Rights Act or the Congressional Accountability Act are covered under GINA as are health insurance issuers and group plans now covered under ERISA or the Public Health Service Act.

Specifically, GINA amends Title VII to prohibit employers, employment agencies or unions from:

  1. Basing employment or membership decisions on genetic information about the employee or applicant, or a family member, which is defined to include a dependent or up to a fourth-degree relative;
  2. Classifying an employee, applicant or member “in any way that would deprive or tend to deprive … employment opportunities” or otherwise “adversely affect" employment or membership status of because of genetic information or
  3. Requesting, requiring or purchasing genetic information about an employee or family member unless the acquisition is “inadvertent” or the information is public but other than medical databases or court records, except where:
  • the employee, applicant or member consents in writing to genetic testing services offered by the employer or union, e.g. as part of a wellness program, and the results are disclosed to only in aggregate terms that do not disclose the individual employee's identity;
  • the employer requests family medical history to comply with certification provisions of federal or state Family and Medical Leave laws;
  • the genetic information is to be used for genetic monitoring of the biological effects of toxic substances in the workplace, if, for example, the monitoring is required by law, the employee consents and individual results are not disclosed or
  • the employer conducts DNA analysis for certain law enforcement purposes.

"Genetic Information" is defined to include the genetic tests of employees or applicants, as well as of their family members, and the manifestation of a disease or disorder in a family member of an employee, member or applicant.  It excludes sex or age information.

GINA will also amend ERISA to prohibit health insurance issuers and group plans from requesting or requiring genetic testing or using it as a basis for determining eligibility for coverage as a preexisting condition or as a basis for setting group rates.  Insurers will be permitted to adjust premium or contribution amounts for an individual on the basis of “a manifestation of a disease or disorder in that individual, or in a [covered] family member,” but the manifestation of a disease or disorder in one individual cannot also be used as the basis for increasing premiums or contribution amounts against other individuals covered under the policy.

Additionally, GINA will amend HIPAA to include genetic information in its definition of protected "health information."  Thus, an employer, group health plan or insurance issuer will be required to protect the confidentiality of genetic information to the same extent it must protect other covered health information.  GINA will further amend HIPAA to bar specifically the disclosure of genetic information for underwriting purposes.

Legislation banning genetic discrimination in employment and health insurance has been a pet project on the Hill for more than a decade.  Many states and local governments have already enacted protections of the use of genetic information in employment and other areas.  As many as 34 states and the District of Columbia, as well as many local governments, currently have employment laws protecting against genetic discrimination.  All of these state and local laws prohibit some reliance on the results of genetic tests and many further extend the protections to inherited characteristics.  Similar to GINA, most state laws also restrict employer access to genetic information, often with exceptions such as the disclosure of genetic information to identify individuals who may be a safety risk in the workplace.  Definitions, coverage and exceptions, as well as specific terms of these laws, vary considerably, and there will be both compliance and coordination challenges for employers.

For example, Texas state law broadly protects individuals from employment discrimination based on either genetic information or an individual’s refusal to submit to genetic testing.  Texas employers must also protect the confidentiality of employees’ genetic information.  A useful summary of current laws on genetic discrimination is available at the National Conference of State Legislatures website.

Bottom Line

Employers should promptly review and, as appropriate, revise their policies and practices to reflect and incorporate GINA’s mandates and prohibitions.  In addition, employers should take this opportunity to ensure that all policies and practices are in compliance with applicable state and local laws on genetic discrimination in each location in which they operate or, in some instances, each location in which they advertise or recruit.  Where an applicable state or local law imposes different or broader obligations concerning the use or protection of genetic information than those mandated by GINA, employers and insurers must comply with the more expansive law.  Employers and group plan issuers should also communicate to ensure there are no discriminatory practices in place that would violate GINA.