Start Thinking About GINA Now
November 3, 2009

On November 21, 2009, a new federal law, the Genetic Information Nondiscrimination Act ("GINA"), takes effect. GINA prohibits employers of 15 or more employees from acquiring any genetic information from applicants or employees, with a few very limited exceptions. The law has some surprising consequences.

Employers who think that "genetic information" means the results of a genetic test administered to an applicant or employee are partially correct, but the law is broader in its sweeping protections. Genetic information also includes the results of genetic tests administered to family members and information about "the manifestation of a disease or disorder in family members" of an applicant or employee. That term, "the manifestation of a disease or disorder," is broad enough to include a family medical history. That means employers who need employee medical exams, or who offer employee wellness programs, may need to make sure that employees do not provide family medical history as part of the program.

The statute makes it is an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee or family member of the employee, but the law appears to build in an exception for the inadvertent request of a family medical history provided in the context of a voluntary wellness program. In preliminary advisory letters, however, the Equal Employment Opportunity Commission ("EEOC") is taking a hard line on the kind of program that it will consider to be a "voluntary wellness program" under GINA. If the wellness program is not "voluntary," any questions about family medical history will be illegal after November 21, 2009. What makes a wellness program "involuntary"? One hallmark may be if the employee gains or loses an economic benefit by participating or refusing to participate, but the EEOC has not provided clear guidance on that question.

There are other concerns. Once GINA takes effect, practices that are permitted under the ADA may be unlawful under GINA. For example, employers may require employees to submit to medical examinations after making a conditional offer of employment, provided that they follow the Americans with Disabilities Act's ("ADA") limitations on these exams. But GINA changes the kinds of questions that those medical examinations can ask. The preamble to the EEOC's proposed rule says that, even though the ADA permits employers to obtain medical information, including genetic information, from post-offer job applicants, GINA will change that so employers no longer will be permitted to obtain any genetic information (including a family medical history) from post-offer applicants. The same will be true when an employer requires an employee to submit to a fitness-for-duty examination.

Employers also need to freshen up the "EEO- It's The Law" poster when this law takes effect. The EEOC has a new version which includes a description of GINA's provisions.

Please plan to join us at our breakfast seminar on December 1, 2009. Rick Liebman and Paula Barran are going to be discussing the impact that GINA will have for employers. Details and invitations for the seminar will be sent soon via email.