Genetic Non-Discrimination Regulations Issued

Genetic Non-Discrimination Regulations Issued

Just about a year ago, the Genetic Information Nondiscrimination Act (with the friendly acronym “Gina”) became law.  The law prohibits discrimination based on an employee’s genetic information and, perhaps more importantly, protects against compelled disclosure of the information.  Unlike some laws which are put into place to right many previous wrongs, this one seems to have anticipated the possibility that the proliferation of genetic tests would lead to some problems.  It’s easy to imagine health insurance denials, and discrimination against people believed to have a tendency to develop a disease, for example.  I have not heard from anyone with a GINA complaint.

The law is staying ahead of the curve.  New regulations from the EEOC take effect in January, and they make clear that employers who otherwise have a right to receive medical information on their employees must disclose that genetic information should be shielded.  When an employer requests medical information in order to evaluate a request for Family and Medical Leave, for example, it must direct the individual and/or health care provider from whom it requested medical information not to provide genetic information.  The regulations provide this format as an acceptable notification:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic Information” as defined by GINA includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

This warning language is also appropriate when an employer seeks medical information to deal with a request for accommodation under the Americans with Disabilities Act.

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