Summary of the GINA Act
The Genetic Information Nondiscrimination Act of 2008 (GINA) was signed into law on May 21, 2008. Title II of GINA protects job applicants, current and former employees, labor union members, and apprentices and trainees from discrimination that is based on their genetic information.

The coverage of Title II of GINA corresponds with that of Title VII of the Civil Rights Act of 1964, as amended, encompassing employers with 15 or more employees, employment agencies, labor unions, joint labor-management training programs, and federal sector employers. GINA's Title II will become effective on November 21, 2009.

View EEOC's notice of proposed rulemaking

The Equal Employment Opportunity is the Law poster has been revised by the Equal Employment Opportunity Commission (EEOC). Current federal employment discrimination law is reflected in the new version, including the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which went into effect January 1, 2009. The poster was also revised to add information about the Genetic Information Nondiscrimination Act of 2008 (GINA), which is effective November 21, 2009. As a result of GINA, employers are prohibited from basing employment decisions on an individual’s genetic information.

This revised notice must be posted by employers with 15 or more employees in conspicuous places where employees and applicants can see it.

Either placing a supplement alongside their current poster or posting a new revised notice will put employers in compliance with this requirement.

The U.S. Departments of Health and Human Services (HHS), Labor, and the Treasury have issued new regulations to provide greater protection of patients’ genetic information.

Under the Genetic Information Nondiscrimination Act of 2008 (GINA), and the interim final rule, group health plans and issuers in the group market cannot: increase premiums for the group based on the results of one enrollee’s genetic information; deny enrollment; impose pre-existing condition exclusions; or do other forms of underwriting based on genetic information.

Group health plans and health insurance issuers in both the group and individual markets cannot request, require or buy genetic information for underwriting purposes or prior to and in connection with enrollment, under GINA and the new interim final regulations. In addition, plans and issuers are generally prohibited from asking individuals or family members to undergo a genetic test.

According to GINA Title I, the proposed rule modifies the Health Insurance Portability and Accountability Act (HIPAA) privacy rule to clarify that genetic information is health information and to prohibit the use and disclosure of genetic information by covered health plans for eligibility determinations, premium computations, applications of any pre-existing condition exclusions, and any other activities related to the creation, renewal, or replacement of a contract of health insurance or health benefits. As provided for by the American Recovery and Reinvestment Act of 2009, a use or disclosure of genetic information in violation of the HIPAA privacy rule could result in a fine of $100 to $50,000 or more for each violation under the new penalties for violations of the HIPAA privacy rule.

Genetic tests can help individuals determine if they may be at risk for developing a specific disease or disorder. However, these tests have given rise to concerns about whether the test results could be used to deny access to health coverage or employment. Because of instances where this has actually occurred, Congress enacted the Genetic Information Nondiscrimination Act (GINA).

On November 21, 2009, Title II of GINA takes effect. Title II prohibits employers from discriminating on the basis of genetic information. It also restricts the deliberate acquisition of genetic information and limits employers from disclosing such information. GINA prohibits employers from using genetic information in hiring, firing, and other employment decisions.

On March 2, 2009, the Equal Employment Opportunity Commission (EEOC) issued proposed rules to clarify employers’ obligations with regard to GINA. The EEOC will evaluate comments before issuing the final regulations.

Requesting medical information

Currently, the Americans with Disabilities Act (ADA) permits you to obtain medical information, including genetic information, from post-offer job applicants. This will change when GINA takes effect. You will no longer be permitted to obtain genetic information, including family medical history, from post-offer applicants. You will also be prohibited from obtaining such information through medical examinations used to determine fitness for duty. However, Title II of GINA will not apply to information obtained by a health care professional in the course of a medical examination, diagnosis, or treatment unrelated to a determination of fitness for duty.

How GINA affects employers

It’s a common misconception that GINA will have little impact on employers, because most employers don’t make a routine practice of formally requesting genetic information from employees or applicants. However, understanding the implications of these regulations requires understanding the definition of “genetic information.” The term includes information about the “manifestation of disease or disorder in family members of the individual.”

It’s conceivable that an employer could inadvertently find out about an employee’s predisposition to cancer, for example, through casual conversations with the employee about the person’s family history, or in conversations about the employee’s own health. An employer could then conceivably make employment decisions on that basis (for example, singling out that person for layoff specifically to avoid large health insurance claims should the employee get cancer).

The proposed regulations contain some exceptions. For example, you might need to request certain family medical information to support a request for Family and Medical Leave Act (FMLA) leave to care for a family member. This is not an unlawful request.

Inadvertently obtaining info

The exceptions also recognize that employers may acquire genetic information inadvertently. For example, an employee might volunteer such information, or an employee who provides documentation as part of a request for accommodation under the ADA might offer genetic information which was not requested. Any genetic information acquired, even unintentionally, must be maintained confidentially to the same extent as medical information under the ADA.

Further exceptions

The proposed regulations provide an exception for voluntary participation in a wellness program, but require that you give employees certain notifications concerning the type of information requested and how disclosure of that information is restricted. Another exception recognizes that you might acquire genetic information for use in monitoring the biological effects of toxic substances in the workplace, which you may be required to do under OSHA.

You should be aware of all the implications of GINA, because they may impact you more than you realize.

The Equal Employment Opportunity Commission (EEOC) is issuing a proposed rule that would implement Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). Congress enacted Title II of GINA to protect job applicants, current and former employees, labor union members, and apprentices and trainees from discrimination based on their genetic information. The EEOC is required by Title II of GINA to issue implementing regulations.

In recognition of the many achievements in the field of genetics, including the decoding of the human genome and the creation and increased use of genomic medicine, Congress enacted GINA. However, these advances give rise to the potential misuse of genetic information to discriminate in health insurance and employment.

These proposed rules would provide all persons subject to Title II of GINA, additional guidance with regard to the law’s requirements. The Commission invites written comments from members of the public on these proposed rules and on any specific issues related to this proposal. Comments regarding this proposal must be received by the Commission on or before May 1, 2009.