By Scott H. Husbands
Scott Husbands practices in the Seattle law firm of Patterson Buchanan Fobes Leitch & Kalzer and is a member of The Young Lawyer 2009-10 Editorial Board. He can be contacted at shh@pattersonbuchanan.com.
On May 21, 2008, the federal government added yet another acronym to the vocabulary of employment lawyers, human resource administrators, and countless other professionals: GINA (the Genetic Information Nondiscrimination Act). GINA aims to protect insurance policyholders and employees from discrimination based on genetic information. If you are a general practitioner or employment lawyer, you will need to get to know GINA.
You will hear more about GINA in the coming months as Title I of GINA, which relates to healthcare coverage, just took effect in part on May 22 and will be fully in effect by May 21, 2010. Title II of GINA, which relates to employment, will take effect on November 21, 2009.
GINA’s journey from drafting to enacted law was a long one (almost thirteen years according to one group), and its eventual passage was considered a major victory by groups that closely follow genetic research issues. As genetic testing becomes more commonplace, GINA will no doubt play a prominent role in our legal careers.
Prior to GINA’s passage, many state legislatures had passed similar legislation. Like other federal legislation, GINA sets a floor for states. No state may provide less protection than GINA requires. But, federal regulators certainly won’t blink if your clients decide to provide more protection than it mandates.
According to the U.S. Department of Health and Human Services (HHS), Title I of GINA generally prohibits health insurers or health plan administrators from requesting genetic information of an individual or an individual’s family members. It also prohibits use of the same information to make decisions about coverage, rates, or preexisting conditions.
Title II of GINA prohibits most employers from using genetic information for hiring, firing, promotion, or any other decisions regarding terms of employment. Employers with fewer than fifteen employees can take a deep breath though—they’re excluded from GINA’s Title II employment-related requirements; such employers should still beware as they may not be excluded from coverage under similar state laws.
GINA is not retroactive, which means that it will be inapplicable to acts or omissions that predate its applicable effective dates. Any future acts or omissions that are based on information collected before its effective dates can still create problems. With that in mind, it will be important to help our clients develop top-down, bottom-up, and side-to-side comprehensive approaches to managing sensitive genetic information and collection practices. We should help them to review all current forms and processes to make sure they are compliant.
Know the exceptions to GINA’s employment-related requirements and GINA’s general definitions. These were a major focus of the U.S. Equal Employment Opportunity Commission’s (EEOC’s) proposed regulations, which required comment by May 2009. Exceptions include, among others, employers that inadvertently request genetic information, FMLA-required practices, and DNA testing for law enforcement. Keep a close eye out for announcements relating to EEOC’s final regulations.
GINA will undoubtedly touch many of our careers if its state-based versions haven’t already. As lawyers, we should understand the ins and outs of GINA to make sure our clients’ practices are consistent with federal (and state) required minimums. Additional information on GINA is available from HHS at www.hhs.gov and EEOC at www.eeoc.gov.
 
 
Next Steps
– Free download: “How to Become a Civil Rights Lawyer.” 101 Practice Series: Breaking Down the Basics (ABA YLD). www.abanet.org/yld/101practiceseries/careerdev.shtml
– The New Genetic Information Non-Discrimination Act and Its Impact on the Workplace (Audio Download). 2008. ABA CLE and the Section of Labor and Employment Law. PC # CET08NGIPOD.
To order online, visit www.ababooks.org.
 
 
 
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