Genetic Information Nondiscrimination Act Of 2008

The newly enacted Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and health insurance companies from discriminating on the basis of genetic information. The employment provisions of GINA are found at Title II of the Act. Generally speaking, GINA’s employment provisions prohibit an employer from discriminating against an employee in hiring, termination of employment, compensation, or any other term or condition of employment, “because of genetic information with respect to the employee.” Employers with at least fifteen employees are subject to GINA.

GINA’s employment provisions take effect on or about November 21, 2009, 18 months after the date of enactment. The Equal Employment Opportunity Commission (EEOC) is expected to promulgate regulations by June 2009. Currently, Ohio does not have any statutes directly related to genetic employment discrimination.

In enacting GINA, Congress sought a way to prohibit disparate treatment of those who test positive for genetic predispositions to devastating illnesses (i.e. cancers, heart disease, Alzheimer’s disease, multiple sclerosis, Parkinson’s disease, Tay-Sachs disease, cystic fibrosis, sickle cell anemia...and hundreds more). Current laws such as the ADA, FMLA, and HIPAA (before being amended by GINA) do not address this concern.

GINA removes the worry of what employers and insurers may learn from genetic test results and what adverse consequences that would have on those who carry genetic information that could be viewed as “unfavorable.” GINA prohibits an employer from requesting, requiring or purchasing the genetic information of an employee, or an employee’s family member, except in certain circumstances. Employers that do obtain any genetic information must maintain this information on separate forms in separate medical files, and treat the information as a confidential medical record.

With GINA, individuals will feel more free to seek out genetic information that could help enhance their own health, their family’s health, and, ultimately, in the long run, medical research.

*Attorney Latha M. Srinivasan of Ott & Associates Co., LPA presented on this issue at the Cleveland Metropolitan Bar Association, 2008 Annual Labor & Employment Law Seminar.

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