9 key FAQs on the new GINA reg

This much most of us know: The new Genetic Information Nondiscrimination Act prohibits discrimination against employees and job applicants on the basis of their “genetic information.” Now, let’s fill in the blanks on what a lot of employers don’t know.
Here are nine key FAQs on GINA, based on an advisory from the law firm of Ballard, Rosenberg, Golper & Savitt:
Q: Which employers are covered by GINA?
A: Employers who have 15 or more employees on the rolls each working day in each of 20 or more calendar weeks in the current or preceding calendar year.
Q: What is categorized as “genetic information”?
A: The (1) the genetic test results of an individual, (2) the genetic tests results of an individual’s family member, and/or (3) information about any disease, disorder, or condition of an individual’s family members.
Q: What, generally under the law, is not “genetic information”?
A: GINA excludes the manifested disease, disorder, or pathological condition of an individual (as opposed to the individual’s family member). Genetic information also does not include an individual’s sex or age.
Q: Who’s classified as a “family member” under GINA?
A: Any person who is within a fourth-degree relation of the individual. The EEOC’s proposed regulations further define “family member” as a person who is or becomes related through marriage, birth, adoption, or placement for adoption.
Q: What discriminatory acts are prohibited by GINA?
A: Genetic information cannot be the basis for any of the following actions by an employer:
• decisions not to hire an individual
• decisions to terminate an employee
• decisions that affect the terms, conditions, or privileges of an employee’s employment (e.g. anything that affects the employee’s position, wages, benefits)
• limiting, segregating, or classifying an employee in any way that would deprive the employee of employment opportunities or benefits or otherwise adversely affect the employee’s status in the workplace
• harassment of an employee or job applicant on the basis of genetic information or genetic status; this includes behavior by the employer, supervisor, co-worker, or someone with whom the employee or applicant interacts in the workplace
• firing, demoting, harassing, or otherwise retaliating against an applicant or employee for: (i) complaining of discrimination; (ii) participating in an official discrimination proceeding, or (iii) otherwise opposing discrimination based on genetic information.
Q.: What restriction are there against an employer acquiring employee genetic 1nformation?
A: An employer cannot request, require, or purchase genetic information about an applicant, employee or a family member of an employee, except:
• inadvertent acquisitions of genetic information, such as when a manager or supervisor incidentally overhears someone talking about a family member’s illness
• information obtained as part of health or genetic services, including wellness programs, offered by the employer where: (1) the employee provides prior, knowing, voluntary, and written authorization; (2) only the employee and health care professional receives individually identifiable information about the results of service; (3) the genetic information is available only for the purpose of the service; and (4) no identifying information is disclosed to the employer
• information acquired as part of the certification process for leave under the Family Medical Leave Act (FMLA), or similar state or local laws, where an employee is asking for leave to care for a family member with a serious health condition;
• information acquired through commercially and publicly available documents (e.g., newspapers, books, magazines) is permitted, as long as the employer is not searching those sources with the intent of finding genetic information
• information acquired 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
• information on employees who work for employers who engage in DNA testing for law enforcement purposes, such as a forensic lab or for purposes of human remains identification.
Q: What are the privacy Requirements regarding maintenance of employee genetic information?
A: Employers must treat any records containing an employee’s genetic information just as you would confidential medical records. Employers may not disclose genetic information except as follows:
• to the employee (or family member if the family member is receiving the genetic service) at the written request of the employee
• to an occupational or other health researcher for certain research projects
• in response to a court order
• to government officials who are investigating compliance with GINA if such information is relevant
• to the extent such disclosure relates to an employee’s certification process for FMLA leave (or leave under similar state or local laws), where an employee is asking for leave to care for a family member with a serious health condition
• to a federal, state, or local public health agency as it concerns a contagious disease that presents an imminent hazard of death or life-threatening illness.
Q: What restrictions does GINA contain regarding employer-sponsored health plans?
A. GINA prohibits discrimination based on genetic information by employer-sponsored group health plans. Health insurers may not adjust premium or contribution amounts based on genetic information. Also, health insurers may not request or require an individual or family member to undergo a genetic test except: (1) for the purpose of making payment determinations and the request seeks the minimum amount of information, and (2) for research purposes under certain circumstances. Lastly, health insurers cannot request, require, or purchase an individual’s genetic information prior to his or her enrollment under the plan or coverage. However, incidental collection will not be considered a violation.