Title II of the Genetic Information Act of 2008

Title II of the Genetic Information Nondiscrimination Act

On May 21, 2008, the Genetic Information Nondiscrimination Act of 2008, also referred to as GINA, was signed into law.  GINA includes two titles providing individuals with federal protections against genetic discrimination in health insurance and employment.

Title I addresses the use of genetic information in health insurance and provides that health plans and health insurers may not use genetic information for underwriting purposes, request or require genetic information prior to enrollment, or require an employee or the employee’s family members to take a genetic test.  Please see the Dorsey e-update posted November 13, 2009, for additional information on Title I.

Title II of the Act prohibits the use of genetic information in employment, prohibits the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements.

Genetic Information

Genetic information is defined to include an individual’s genetic tests, the genetic tests of an individual’s family members, and information about any disease, disorder, or condition of an individual’s family members (i.e., family medical history).  Family history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future.  The definition of genetic information specifically excludes information about the sex or age of an individual.

Title II

Title II went into effect with very little attention on November 21, 2009, and seems to be under the radar of many employers, perhaps because final regulations have not yet been released by the Equal Employment Opportunity Commission (EEOC), the agency with regulatory authority over Title II.

Title II applies to private and state and local government employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs. Title II also covers Congress and federal executive branch agencies.

Title II makes it an unlawful employment practice for an employer to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment because of genetic information. Title II also makes it unlawful to harass a person because of his or her genetic information or to retaliate against an applicant or employee for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination under Title II.

Title II also makes it an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee or a family member of an employee. GINA provides for six limited exceptions regarding employer acquisition of genetic information:

1. inadvertent acquisition of genetic information does not violate GINA;
2. genetic information (such as family medical history) may be obtained as part of health or genetic services, including wellness programs, offered by the employer on a voluntary basis, if certain specific requirements are met;
3. genetic information may be acquired as part of the certification process for FMLA leave or leave under similar state or local laws;
4. acquisition through commercially and publicly available documents, like newspapers, is permitted, as long as the employer is not searching those sources with the intent of finding genetic information;
5. acquisition through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace is permitted where the monitoring is required by law or, under carefully defined conditions, where the program is voluntary; and
6. acquisition of genetic information of employees by employers who engage in DNA testing for law enforcement purposes as a forensic lab or for purposes of human remains identification is permitted, but the genetic information may only be used for analysis of DNA markers for quality control to detect sample contamination.

The “inadvertent” exception likely poses the biggest risk for employers.  The proposed regulations state that Congress intended the “inadvertent” exception to address what it called the “water cooler problem” when an employer unwittingly receives otherwise prohibited genetic information in the form of family medical history through casual conversations with an employee or by overhearing conversations among co-workers.

If an employer possesses genetic information about an employee, such information must be kept confidential and, if the information is in writing, it must be kept in a separate medical file and be treated as a confidential medical record of the employee.

Remedies for Title II Violations

 The same remedies available under Title VII are available under Title II of GINA. An aggrieved individual may seek reinstatement, hiring, promotion, back pay, injunctive relief, pecuniary and non-pecuniary damages (including compensatory and punitive damages), and attorneys’ fees and costs.  Title VII’s cap on combined compensatory and punitive damages applies under Title II of GINA.

Title II does not preempt any state or local law that provides equal or greater protections from employment discrimination on the basis of genetic information or improper access or disclosure of genetic information.

What Employers Should Do Now to Comply With Title II

1. Educate human resource personnel and supervisors about GINA restrictions.

2. Update workplace posters, employee manuals, and other internal documents to reflect that you do not discriminate on the basis of genetic information.  The EEOC issued a revised version of its standard anti-discrimination poster that covered employers must display.  The updated poster is available on the EEOC website.

3. Review employment applications and employee questionnaires to ensure that those documents are not intentionally or inadvertently requesting genetic information, including information about an applicant’s or employee’s family medical history.

4. Review forms used for employee leaves of absence requests and accommodation requests under the FMLA, the ADA, and similar state laws to ensure they request only what you need to know to make a determination about the leave or accommodation.

5. Separate health information from other personal information and restrict access to the information.

6. Consult with your health insurance providers to ensure they are not soliciting prohibited genetic information.

7. Make sure appropriate policies and procedures are in place to prevent inadvertent disclosure of genetic information when responding to litigation discovery requests.

If you have questions about Title II, please don’t hesitate to contact us.