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GINA'S Employment Provisions Take Effect November 21

    Client Alerts
  • November 13, 2009

The sections of the Genetic Information Non-Discrimination Act  of 2008 (GINA) relating to employers become effective on November 21.  GINA prohibits the use by employers of genetic or family medical history in making hiring, firing, promotion or job placement decisions.  Employers cannot require employees to undergo a genetic screening or ask employees for such medical information.  Although the reported use of such genetic information by employers is anecdotal, Congress believed that developing technologies will tempt employers and insurers to screen applicants and employees to avoid those persons with genetic predispositions for chronic diseases.

The family medical history provisions of GINA may have the most immediate impact on employers.  The new law prohibits employers from formally asking applicants or employees about relatives' health information.  As reported last month in EmployNews, interim rules for group medical plans issued under GINA prohibit employers from inquiring about family medical history when conducting Health Risk Assessments as part of a wellness program, even where rewards under the program are not linked to the outcome of the assessment.

Earlier this year, the Equal Employment Opportunity Commission issued proposed rules under the employment portion of GINA.  Again, the family medical history provisions proved to be the most difficult issue for the EEOC and for employers.  The agency sought comments regarding the definition of a prohibited inquiry.  It proposed excluding "water cooler" discussions about an ill family member, but speculated whether a recruiter reviewing an applicant's Facebook page would violate GINA if the search revealed information about a sick relative.  As of today, the EEOC rules have not been published in final form, but are expected to be released soon.

Employers should make recruiters and human resource personnel aware of these requirements.  While GINA is primarily aimed at future problems, employers should make certain that its requirements are not inadvertently violated today.