After years of effort, the Genetic Information Nondiscrimination Act quickly passed both chambers of Congress last week.  President Bush indicated that he will sign the bill, which should reach his desk this week.  GINA will add a new category of protection to federal anti-discrimination laws, making it illegal for employers or insurance carriers to discriminate against persons based upon genetic information indicating predisposition to chronic diseases.

GINA’s employment provisions apply to employers with 15 or more employees.  It prohibits employers from making any decisions affecting the terms and condition of employment because of genetic information about an employee, applicant, or family member.  The law is specifically intended to prevent employers from making hiring decisions based upon fear that an applicant or dependent will place a large financial burden on the employer’s group medical insurance plan due to a genetic predisposition for certain chronic medical conditions.

Employers will not be allowed to require employees to submit to genetic testing, although such tests will be allowed as part of wellness programs, medical monitoring as required by OSHA, or employer-sponsored medical examinations where the employer does not have access to such information.  Given the consequences of discriminating on the basis of a genetic test, employers will not want to have access to this information in most cases.  Any employees’ or dependents’ genetic testing information in the employer’s possession must be maintained as a confidential medical record.

The EEOC will enforce GINA.  Administrative procedures will be modeled on those under Title VII, but damages will be assessed the same as under Section 1981’s race discrimination provisions, meaning that they will not be subject to compensatory and punitive damage caps.  Disparate impact claims under GINA are specifically excluded.  The law will become effective eighteen months after it is signed by President Bush.  The EEOC will publish implementing regulations before the effective date.