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GINA: Water Cooler Cause of Action or Overdue Legislation?

By Teresa Rider Bult, Litigation News Associate Editor – February 18, 2010

While some argue the Genetic Information Non-Discrimination Act of 2008 (GINA) creates a new “water cooler” cause of action for employees, others see it as well-reasoned and overdue legislation. GINA was signed into law on May 21, 2008, but the employment-related provisions did not take effect until November 21, 2009. 


Parameters of the Act
Under the new act, employers with 15 or more employees are prohibited from discriminating against applicants or employees based on their genetic information or the genetic information of their family members. The act also prohibits employers from requesting or requiring genetic information from employees or their family members.


Genetic information includes information about an individual’s medical history or participation in clinical research or studies. It also includes information about any genetic testing—defined as “an analysis of human DNA, RNA, chromosomes, proteins, or metabolites—that detects genotypes, mutations, or chromosomal changes.”


An employer is required to treat any such information obtained as a confidential medical record in accordance with the confidentiality provisions of the Americans with Disabilities Act. In addition to a private cause of action, GINA allows enforcement by the Department of Labor. The law is not retroactive.


Impact of GINA
“The implementation of this legislation is no shock. It has been expected for some time,” says jury consultant Cynthia R. Cohen, Manhattan Beach, CA, a vice chair of the ABA Section of Litigation Trial Practice Committee and cochair of the Section’s Products Liability Committee Membership subcommittee.


“We have known for years that the advances in medical technology and the genetic information available to us could potentially be abused. This gives individuals a mechanism for protection against abuse,” she says.


“Employers need to understand there is no legitimate purpose in using medical or genetic information in employment decisions,” says Cohen. “If they get sued for using genetic information, jurors would most likely see it as an invasion of the employee's privacy,” she predicts.


Employers, on the other hand, are leery of the complicated provisions. “It is not the obvious restrictions in GINA that are making employers lose sleep—I have no clients who will have difficulty refraining from asking about an applicant’s chromosomal makeup or genetic history. It is the more subtle ones,” says Maureen Knight, Fairfax, VA, cochair of the Section’s Employment and Labor Relations Law’s Membership subcommittee.


In fact, some argue that the legislation is so broad it creates a “water cooler” cause of action.


“An employee who talks about his grandmother’s diabetes around the water cooler can now assert that any adverse action taken against him by his employer after that discussion was based on his genetic information,” says Knight.


“In an age where more and more discriminatory discharge claims are based on nothing more than an employee’s belief that the termination was unfair, the legislature has added yet another protected category on which terminated employees can base their claim,” Knight says. 


Others see GINA as simplistic and narrowly defined. “The act’s provisions provide explicit precautions against overreaching,” says Cohen.


“For example, the legislation provides that an employer’s inadvertent requests for genetic information will not subject it to liability, and states that genetic information only includes the specific information defined in the act, and excludes information about the sex or age of the individual,” Cohen notes.


Additional Regulations and Provisions
Either way, both sides can agree that interpretation of the act will be assisted significantly by implementation of accompanying regulations, which were supposed to be drafted and published by the Equal Employment Opportunity Commission before the November 2009 effective date.


As of the date of publication of this article, the regulations have not yet been posted.


GINA also includes provisions that affect group health plans or health insurance issuers offering group health insurance coverage. Those provisions, which took effect between May 22, 2009, and May 21, 2010, make it unlawful for those entities to adjust premiums or contribution amounts for the group covered because of genetic information.


They also cannot request, require, or purchase genetic information for underwriting purposes or before an individual’s enrollment under the plan or coverage in connection with such enrollment.


GINA also provides that genetic information is “protected health information” within the meaning of the Health Insurance Portability and Accountability Act.


Keywords: Litigation, employment and labor, Genetic Information Non-Discrimination Act of 2008


 

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