On May 21, 2008, President George W. Bush signed the Genetic Information and Nondiscrimination Act of 2008 (“GINA”), which prohibits group health plans, health insurance issuers, and employers from discriminating on the basis of genetic information. The GINA responds to concerns surrounding recent advances in genetic testing, the growing accessibility of individual’s genetic information, and the potential for discrimination to arise from the misuse of this information.

Genetic Nondiscrimination in Health Insurance

Title I of the GINA amends the Employee Retirement Income Security Act of 1974 (ERISA), the Public Health Service Act (PSHA), and the Internal Revenue Code to prohibit a group health plan or a health insurance issuer from adjusting premium or contribution amounts on the basis of genetic information. The bill also prohibits group health plans and health insurance issuers from requesting or requiring that an individual, or his or her family member, undergo a genetic test, although they may request—but not require—that a participant or beneficiary undergo genetic testing for research purposes. Additionally, a group health plan or a health insurance issuer may obtain and use genetic test results for the limited purpose of determining payment due. This legislation also prohibits group health plans or health insurance issuers from requesting, requiring, or purchasing genetic information for underwriting purposes, or for enrollment purposes prior to an individual’s actual enrollment (though obtaining such information incidentally is not a violation).

The GINA defines “genetic information” to include: information about an individual’s genetic tests, the genetic tests of an individual’s family member, and the manifestation of a disease or disorder in an individual’s family member. While “genetic information” does not include information about one’s sex or age, it does include the information of a fetus carried by a pregnant woman, or an embryo held by an individual or family member utilizing an assisted reproductive technology. The term “family member” is expansively defined, including not only one’s dependants but any other individual up to one’s fourth-degree relative.

The bill provides for the enforcement of these requirements through monetary penalties. Failure to comply with the discrimination provisions added to ERISA and the PHSA may result in penalties of $100 per day/per person, with minimum penalties of $2,500 for de minimis violations and $15,000 for more serious violations, although fines may be avoided if failure to comply was due to reasonable cause and not willful neglect, and the failure is corrected within 30 days. Penalties for unintentional failures to comply may not exceed the lesser of 10 percent of the amount paid by the plan for group health plans during the preceding taxable year, or $500,000. Furthermore, the Secretary of Labor has the authority to limit or waive penalties where failure is due to reasonable cause. The Secretaries of Health and Human Services, Labor, and Treasury are charged with the task of coordinating to ensure all regulations, rulings, and interpretations under this bill are uniform.

Prohibiting Employment Discrimination on the Basis of Genetic Information Title II of the GINA makes it an unlawful for an employer, employment agency, labor organization, or joint-labor management committee to discriminate against any individual or employee on the basis of genetic information by limiting, segregating, or classifying employees, individuals, or members because of genetic information in any way that would deprive, or tend to deprive, such individuals of employment opportunities or otherwise adversely affect their status as employees. The GINA also prevents: (1) employers from failing to hire, discharging, or other otherwise discriminating against an employee with respect to compensation, terms, conditions, or privileges of employment because of genetic information; (2) employment agencies from failing to or refusing to refer an individual for employment because of genetic information with respect to the individual; (3) labor organizations from excluding or expelling a member from the organization based on the individual’s genetic information; (4) employers, labor organizations, or joint labor-management committees from causing or attempting to cause an employer to discriminate against a member in violation of GINA; and (5) entities controlling apprenticeship or other training programs from discriminating against an individual in admission to, or employment in, any such program on the basis of genetic information.

The GINA also makes it an unlawful employment practice for an employer, employment agency, labor organization, or joint labor-management committee to request, require, or purchase the genetic information of an employee or a family member of an employee, except in limited circumstances where: (1) the information is inadvertently requested or required to comply with certification requirements of family and medical leave laws; (2) the information is to be used for genetic monitoring of the effects of toxic substances in the workplace; or (3) where the employer conducts DNA analysis for law enforcement purposes as a forensic laboratory.

If an employer, employment agency, labor organization, or joint labor-management committee acquires any genetic information regarding an employee or member, such information must be kept in separate files and treated as confidential. This information may only be disclosed: (1) to the employee or member, upon request; (2) to a health researcher; (3) in response to a court order; (4) to a government official investigating compliance with GINA; (5) in connection with the employee’s compliance with federal and state family and medical leave act provisions; or (6) to a public health agency.

The employment discrimination provisions of GINA will be enforced through Title VII of the Civil Rights Act of 1964 and the Government Employee Rights Act of 1991. In addition, the remedies available under Title II will be the same as those provided under Title VII of the Civil Rights Act.

Implications

Although the bill does not become effective for several months (Title I – 12 months after enactment, Title II – 18 months after enactment), employers and benefit plan administrators should begin implementing policies and practices now to ensure compliance when it takes effect. To avoid penalties and claims under the new law, group health plans, health insurance issuers, and employers should take the requisite steps to inform employees of the new requirements. Employees who typically gather information about co-workers and applicants, in particular, must be made aware of the fact that the genetic information of others should only be requested or collected in limited circumstances. This legislation could potentially create new litigation for employers and health insurance providers who fail to adopt new policies in adherence to the law.

If you have questions relating to the information contained in this Legal Alert, please contact the Harris Beach attorney with whom you usually work at 800-685-1429.

This Legal Alert provides a brief analysis or comments on matters related to the Genetic Information and Nondiscrimination Act of 2008. This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York state in Albany, Buffalo, Ithaca, New York City, Niagara Falls, Rochester, Syracuse, and Yonkers, as well as Newark, New Jersey.