CLIENT ALERT / Title II - Genetic Information Non-Discrimination Act of 2008 (G.I.N.A.) Print

On May 21, 2008, Congress passed and the President signed into Law the Genetic Information Non-Discrimination Act of 2008 (G.I.N.A.).  Title II of G.I.N.A. prohibits the use of genetic information under any circumstances in the making of employment decisions.  Title II went into effect on November 21, 2009. 

G.I.N.A. prohibits employment discrimination based on “Genetic Information” and makes it unlawful for an Employer to “fail or refuse to hire or to discharge, any employee or otherwise to discriminate against any employee with respect to compensation, terms, conditions, or privileges of employment of the employee because of Genetic Information with respect to the employee”.  It also precludes segregating or classifying employees in any way that would deprive them of their ability to advance in their employment opportunities because of Genetic Information with respect to that employee.  Finally, G.I.N.A. outlaws the acquisition of Genetic Information on the part of an employer as well as employment agencies. 

 “Genetic Information” is defined as an individual’s genetic test, the genetic tests of family members of such individual and “the manifestation of a disease or a disorder in family members of such individual”. 

The Equal Employment Opportunity Commission (EEOC) has jurisdiction with respect to G.I.N.A. and has promulgated rules regarding the implementation of this statute.  G.I.N.A.’s impact on most employers is the prohibition of requesting a “family medical history” as part of an inquiry or medical examination.  Thus, any employer that does a post-offer, pre-employment physical should review with their provider questions posed in the post-offer, pre-employment physical to make sure that no questions are asked relating to a family medical history.  Even though the Americans with Disabilities Act allows a medical examination in a post-offer stage to be rather broad, (as long as the exclusionary criteria are job related and are consistent with business necessity), G.I.N.A. abrogates some of this breadth by precluding inquiries regarding the family medical history.  Similarly, employee fitness for duty examinations (which must be job-related and consistent with business necessity) are precluded from inquiring into family medical history.

G.I.N.A. recognizes that there may be “inadvertent” disclosures, including information provided by the employee on solicited, medical information generated as a result of family medical leave or such information received via employer requests for information (other than genetic information) as permitted by federal, state or local law, and this would include medical information provided in the context of a workers’ compensation case, as long as Genetic Information was not specifically requested.

G.I.N.A. makes clear that even though an employer may receive such information under the above exceptions without incurring G.I.N.A. liability, there still is an absolute prohibition to use the Genetic Information received for any adverse employment decision. 

Remedies for violation of G.I.N.A. generally follow Title VII Remedies with an attorney’s fee provision. 

Finally, the EEOC has updated its employment law poster based on G.I.N.A. and amendments to the American’s with Disabilities Act Amendments Act of 2008, and employers should download and update their EEOC poster accordingly.  The poster can be accessed via http://www.eeoc.gov

If you have any questions about this or any legal matter,
please don’t hesitate to contact the attorneys at Taylor, McCormack & Frame.

 
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