Passed as an Act to “prohibit discrimination on the basis of genetic information with respect to health insurance and employment,” the Genetic Information Nondiscrimination Act of 2008 (GINA) changes health insurance laws and protects against employment discrimination. As it relates to employment, “genetic information” includes an individual’s genetic tests, genetic tests of family members or the manifestation of a disease or disorder in family members of individuals. 42 USC §2000ff. Effective November 21, 2009, it is an unlawful employment practice for an employer to discriminate in the terms and conditions of employment based on genetic information. 42 USC §2000ff-1. It is illegal to retaliate against someone that opposes a practice that is unlawful under GINA or makes a charge under GINA. 42 USC §2000ff-6(f). It is also illegal for an employer or union to request, require or purchase genetic information with respect to an employee or family member with a few exceptions. 42 USC §2000ff-1 and 42 USC §2000ff-2. Exceptions include the “water cooler acquisition” exception, where the employer inadvertently hears or requests genetic information, or the “commercially available” exception, where an employer purchases documents that are commercially and publicly available that includes family medical history. 42 USC §2000ff-1. Other exceptions include where the employer performs DNA analysis for law enforcement, where the information is provided as part of a Family Medical Leave Certification, or where the employer offers health or genetic services and, pursuant to a written authorization from the individual, provides the individuals genetic information only to the individual and a health care professional or certified genetic counselor and never to the employer except in non-identifying aggregate terms. 42 USC §2000ff-1.
If an employer possesses genetic information, such information must be in separate medical files and treated as a confidential medical record like records under the Americans with Disabilities Act. Disclosure is limited to government public health agencies where it concerns a contagious disease that presents an imminent hazard and the individual is notified of the disclosure, officials investigating compliance with the law, research in compliance with Federal Regulations, disclosure under compliance with FMLA, or at the written request of the employee. 42 USC §2000ff-5.
Under GINA, employees rights who have been violated are entitled to damages. Damages that are available are those that are available under other forms of discrimination or retaliation investigated by the EEOC. If you think that your employer has violated your rights under GINA, please contact Jensen Law Office, LLC to discuss your situation.