LAW WILL BAN EMPLOYERS FROM MAKING EMPLOYMENT DECISIONS BASED UPON GENETIC INFORMATION 

Do you employ 15 or more people? You should prepare to comply with the Genetic Information Non-Discrimination Act (“GINA”), which was signed into law on May 21, 2008.

Perhaps you currently employ someone whose chronic disease has caused your group medical insurance rates to skyrocket. You would probably like to avoid hiring such a person in the future. If you learn, based upon genetic testing information, which of your potential hires is prone to develop a chronic illness in the future, can you legally use that information to make employment decisions? The answer is “no,” and by November 21, 2009, when GINA goes into effect, you must be in compliance with this new law.

GINA makes it unlawful for employers with 15 or more employees, employment agencies, labor organizations and insurance carriers to discriminate against persons based upon genetic information indicating a predisposition to chronic diseases. Among other things, GINA prevents employers from making employment decisions based upon a concern that an applicant, employee or dependent with a genetic predisposition for certain chronic medical conditions will place a financial burden on the employer’s group medical insurance plan. Like most employment laws, GINA also prohibits employers from retaliating against employees who claim discrimination based upon the use of genetic information.

What, exactly, is genetic information? “Genetic information” is information gained from (1) an individual’s genetic tests; (2) genetic tests of family members; and (3) an individual’s family medical history. Employers will be breaking the law if, based upon such information, they discharge or refuse to hire any applicant or employee, or otherwise discriminate against an employee with respect to employment compensation, terms, conditions, or privileges.

GINA also makes it unlawful, with some exceptions, for employers to request, require, or purchase genetic information about an employee. For example, employers will not be allowed to require employees to submit to genetic testing, although such tests may be allowed as part of a wellness program, medical monitoring as required by OSHA, or employer-sponsored medical examinations where the employer will not have access to the information.

The law also makes it illegal for insurance carriers (including self-insured employers) to discriminate against persons based upon genetic information that indicates predisposition to chronic diseases. Likewise, GINA prohibits health insurers from requesting or requiring an individual to take a genetic test. This means that health insurers may not raise premiums or deny coverage based on genetic information.

As a practical matter, most employers will not be significantly impacted by this law. In order to make sure you are in compliance with the new law, however, you should:

• separate your confidential medical and health records from all other records and limit access to these records as required by the Americans With Disabilities Act;

• ask health care providers to provide only non-genetic health information (pre-employment physicals, return to work exams, etc.) about your employees;

• keep in mind workers’ compensation records may have genetic data and treat them appropriately;

• take steps to make sure you do not inadvertently receive genetic information about your job applicants or employees.

In addition to addressing employment-related use of genetic information, GINA increases penalties for federal child labor law violations under the Fair Labor Standards Act (FLSA). These revisions to the FLSA became effective on May 21, 2008. Specifically, GINA increases the fine from $10,000 to $50,000 for each violation that causes death or serious injury to any employee who is under 18 years old. GINA increases other child labor law violations from $10,000 to $11,000 and increases the penalty for willful violations of FLSA minimum wage and overtime provisions from $1,000 to $1,100 for each violation.

The Equal Employment Opportunity Commission will enforce the employment provisions of GINA and the Department of Labor will enforce the health insurance provisions and the child labor law revisions. Both departments intend to publish implementing regulations concerning the use of genetic information before November 21, 2009.

GINA also increases penalties for violations of federal child labor laws under the Fair Labor Standards Act. GINA increases the fine for each violation that causes death or serious injury to any employee who is under 18 years old from $10,000 to $50,000. The penalty for other violations is increased from $10,000 to $11,000. GINA also increases the penalty for willful violations of the minimum wage and overtime provisions of the FLSA from $1,000 to $1,100 for each violation. The revisions to the FLSA were effective on May 21, 2008.
 

For more information on these or other employment law issues, please contact one of the attorneys in Walter & Haverfield's Employment and Labor Group: