GINA: "She" Is Moving In On Nov. 21 and NEVER Going Away

Ever have someone come to see you that you were not all that thrilled with and you knew would do nothing but cause you problems? Well GINA is that family member and she is just going to be annoying. GINA in my analogy stands for Genetic Information Nondiscrimination Act. It has two Titles. Title I deals with insurance companies and prohibits group health plans from adjusting premiums or contribution amounts for the group covered by the plan on the basis of genetic information. It also prohibits a group health plan from requesting or requiring a genetic test or discriminating based on a genetic test. This title goes into effect on January 1, 2010 for calendar year health insurance plans or on the renewal date for plans that are renewed after that date. The big issue for HR professionals here is to make sure that their insurance carrier is complying with GINA and also observing HIPAA regulations about protected information.

Title II, the employment provisions, is the part of this new law that will potentially be the bigger headache. How so you ask? After all you don’t collect genetic information on employees…. or do you? Before I answer that question, here is a little background on GINA:

  • Private employers with 15 or more employees must comply, as well as all governments, private and public employment agencies and labor organizations.
  • Employers may not make employment decisions based on genetic information about an employee, an applicant, or a family member of an employee or applicant.
  • Employers may not retaliate against an employee or applicant who complains about a violation of GINA.
  • Employers may not require employees, applicants or their family members to provide genetic information.
  • Employers may not purchase genetic information about employees, applicants, or family members.
  • There are some exceptions but any information received MUST be treated as a confidential medical record and it cannot be used in employment decisions.
  • Only disparate treatment claims can be made, not disparate impact claims.

Now back to the question of whether or not you actually collect information and the potential impact of that information. Ever had an employee who has had a family member pass away and in your conversation you asked them if they had been ill. The answer given is “She passed away from breast cancer.” BINGO! You just collected genetic information! Do you have employees fill out medical questionnaires or Health Risk Assessments? If the answer is “Yes” you are collecting genetic information.

So what impact does this have on your organization? Well all employees are potential plaintiffs, since we all have some genes that can cause medical conditions, i.e., cancer, heart problems, diabetes, etc. etc. etc. Employees and applicants will now have one more potential reason to sue you for discrimination.

What do you have to do as an employer? Here is a list of things to consider:

  1. Alter your anti-discrimination policy to reflect this change.
  2. Probably put up posters (which I am sure you will be able to download from the EEOC).
  3. Teach your supervisors to NOT inquire about family medical conditions or the reasons for death of a family information.
  4. Make sure you have NO form, such as a bereavement request, that asks for cause of death.
  5. Make sure that any information received is kept in a confidential record, the same place you keep all the ADA information.
  6. Even be guarded in asking for, or allowing for, collections to charitable groups that support a disease because “Fred’s son little Johnny has leukemia.”

That last one is a tough one. It has the potential of making HR stand for “heartless response.” But if at some point in the future Fred is laid-off he may decide to attribute that layoff not to his job but to the fact that his son has a major impact on the insurance policy. So there has to be some measure in protecting the company.

EEOC was supposed to have final regulations out in plenty of time for companies to have better direction on compliance, however, to date I have not found them. If you have let me know. In the meantime here is a link, on Q & A about GINA.

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