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CCH® BENEFITS — 7/22/08

Employers Should Prepare For GINA Effects

From Spencer's Benefits Reports: Under the Genetic Information Nondiscrimination Act (GINA), employers will need to learn new ways of dealing with information, just as they did when the Americans with Disabilities Act (ADA) was passed, said Camille A. Olson, partner at Seyfarth Shaw, at the 60th Annual Society for Human Resources (SHRM) Conference & Exhibition in Chicago. Ms. Olson’s presentation, entitled A New Civil Rights Law for the 21st Century: Genetic Nondiscrimination, discussed employer obligations under the newly enacted GINA.

Managers and supervisors now must be careful about initiating conversations with employees, Ms. Olson cautioned. Inquiring about a sick aunt, for example, could trigger employer obligations because GINA protects not only genetic information about an employee obtained through genetic testing, but also genetic testing and information about the “manifestation of a disease or disorder” of the employee’s family members, she pointed out. “Family member,” defined very broadly under GINA, includes first, second, third or fourth-degree relatives, so “water cooler” conversations or a request for a day off to visit a relative with cancer can put the employer in possession of protected information.

Unlike health conditions covered under the ADA, genetic information does not include the symptoms of a disease or disorder—genetic information is asymptomatic, Ms. Olson stressed.

Disparate Treatment Claims

GINA’s employment title provides only for disparate treatment claims, although the possibility of providing disparate impact relief is to be revisited six years after the statute’s enactment, Ms. Olson pointed out. Damages under GINA are similar to those available under Title VII of the Civil Rights Act, with both punitive and compensatory damages available as well as attorneys’ fees and costs. GINA will be enforced by the Equal Employment Opportunity Commission and there will be a charge-filing obligation. The EEOC is required to issue regulations within 12 months of GINA’s enactment, Ms. Olson noted.

GINA also amended ERISA and the Health Insurance Portability and Accountability Act, and thus providing protection form discrimination related to employer health care plans. The Department of Labor has enforcement authority against plan sponsors and insurers, she noted.

Ms. Olson recommended steps employers could take to avoid disparate treatment claims under GINA, including the following measures:

• revise policies and train managers;
• avoid asking employees about genetic testing or testing results;
• never ask employees if a condition runs in their family;
• educate managers and human resources professionals about safeguarding information to prevent it from entering the decision-making process;
• consider screening all medical information upon receipt to determine if it must be kept confidential and the circumstances under which it may be released;
• keep all genetic information confidential unless special circumstances are met;
• do not raise insurance rates for or deny coverage to any individual based on genetic information;
• do not use genetic information to limit benefit claims or costs, or workers’ compensation claims; and
• do not disclose genetic information to third parties without a court order.

For more information on this and related topics, consult the CCH Pension Plan Guide, CCH Employee Benefits Management, and Spencer's Benefits Reports.

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