You may have heard about a new federal law that bans discrimination by employers, health care plans and insurers on the basis of genetic information. The law is called the Genetic Information Nondiscrimination Act of 2008 (GINA), and President Bush signed it into law on May 21, 2008.

The purpose of GINA is to allow Americans to make use of genetic advances without fear of adverse consequences. GINA protects employees from employers and health care insurers by prohibiting the improper collection, use or disclosure of employees' genetic information.

Provisions

GINA includes the following provisions:

  • Employers may not discriminate against an employee in hiring, pay, promotions or other job factors on the basis of genetic information of the employee or the employee's family member.
  • Health care plans and insurers may not deny enrollment or charge higher rates to an individual on the basis of the individual's or family member's genetic information.
  • Health care plans and insurers may not require genetic testing of an individual or family member for eligibility of coverage or continued coverage. However, health care professionals may request genetic testing for a patient.

Although employers are generally prohibited from obtaining genetic information about an employee or the employee's family members, there are some exceptions. These include:

  • Information that is not specifically sought, but is acquired in casual conversations
  • Participation in employee wellness programs, which provide general information to the employer
  • Requests for leave under the Family Medical Leave Act (FMLA) or similar laws, which require the employee to provide medical histories

If the employer obtains genetic information under one of these exceptions, the employer must maintain the information as a confidential medical record under the Americans with Disabilities Act. The information must be separate from other employee information and must be protected from unauthorized disclosure.

Relief from Violations

If you think that you have been discriminated against on the basis of your genetic information, you may file a claim with the Equal Employment Opportunity Commission (EEOC). The EEOC will investigate the matter before suing the employer on your behalf or issuing a right-to-sue letter that allows you to sue the employer.

Relief can include compensatory and punitive damages, which are capped at $300,000 or lower, depending on the size of the employer. You may also be awarded equitable relief, which could include back pay. These types of damages are designed to compensate you for your injuries, punish the party that committed a wrongful act, and to provide relief to make you whole.

Group health plans may be fined up to $100 per day for each noncompliance and up to $15,000 for certain violations. The highest collective penalty for unintentional violations is the lesser of 10% of the employer's costs for group health plans during the preceding year or $500,000.

Questions for Your Attorney

  • Can my employer refuse to promote me after the employer finds out that I have a genetic pre-disposition to cancer?
  • Do I still have to provide medical information to my employer in order to take time off under the Family Medical Leave Act?