GINA May Prove Challenging to Employers

By: Elaina Smiley, Esquire es@muslaw.com

A new law that prevents employers from making employment decisions based on genetic information will place another burden of regulatory compliance on employers.

The Genetic Information Nondiscrimination Act of 2008 (GINA), recently signed into law by President Bush, makes it illegal for employers, unions and insurance providers to discriminate on the basis of an individual’s genetic information and prohibits disclosure of such information except in very limited circumstances.

Called by some “the first major civil rights act of the 21st,” GINA prohibits employers from using genetic information when making decisions regarding hiring, firing, compensation, promotions and other terms and conditions of employment.

GINA prohibits employers from requesting genetic information from employees and their families. GINA provides some limited exceptions, such as information employers obtain under the Family Medical Leave Act. However, GINA does not address genetic information that employers may inadvertently receive under other employment laws. For instance, an employer engaging in discussions with an employee who requests an accommodation under the American with Disabilities Act could acquire genetic information covered by GINA.
The U.S. Department of Labor and the Equal Employment Opportunity Commission are in the process of developing the regulations that will tell employers what they must do to comply with GINA. The GINA provisions related to employers do not go into effect until November 2009.