GENETIC NONDISCRIMINATION ACT POISED TO BECOME LAW
On May 1, 2008, the Genetic Information Nondiscrimination
Act (GINA) (H.R.493)
cleared both houses of Congress by overwhelming votes and
is on its way to the President’s desk. The President
is expected to sign the bill into law as early as Monday,
May 5.
GINA, which will take effect 18 months after the law is
enacted, prohibits employers and health insurers from discriminating
against individuals based on the results of genetic tests.
The Act makes it an unlawful employment practice for an
employer to refuse to hire, discharge, or otherwise to discriminate
against any employee with respect to the compensation, terms,
conditions, or privileges of employment because of genetic
information. Further, employers cannot categorize employees
in any manner because of genetic information. GINA also
makes it unlawful for an employer to request, require, or
purchase genetic information regarding an employee or an
employee’s family member. There are some exceptions
to this prohibition, including where health services are
offered by the employer as part of a wellness program, or
where an employer requests medical history information to
comply with FMLA certification provisions (or similar requirements
of state laws).
Recent medical advances permit prescreening of individuals
to determine whether they may develop genetic diseases,
such as breast cancers. Proponents of GINA have argued that
without GINA’s protection, individuals would not take
advantage of the preventive screening for fear of health
insurance coverage or employment status repercussions. Proponents
argue that the law is necessary both for the protection
of these individuals and to advance preventive measures
in medicine.
While claims of genetic discrimination are more likely
to arise in the area of insurance coverage (especially health
and life) than in the employment context, employers should
nonetheless update their anti-discrimination policies to
include this new protected classification. Employers should
also ensure that managers and other relevant personnel are
trained properly regarding GINA so that questions and conversations
that could elicit such information are removed from the
hiring and employment context.
May 2, 2008
Shawe
Rosenthal, LLP provides this publication for informational
purposes, and it should not be construed or relied upon
as legal advice. You should contact your Shawe Rosenthal,
LLP lawyer to discuss any questions that you may have concerning
your own situation.
|
