On my LinkedIn group, California based attorney and group member Stefan Miller posted some great information about the recently effective Genetic Information Nondiscrimination Act (“GINA”).   This information is concise and easy to read.  So, I thought that it would be useful to post here too.  This post includes discussion between other group members discussing GINA.

The Genetic Information Nondiscrimination Act of 2008 (“GINA”) becomes effective November 21, 2009, applies to businesses with 15 or more employees, and is likely to have a potentially significant impact on a variety of employer obligations, policies and practices. For example, GINA will impact existing Company employee handbook policies, practices relating to medical and physical examinations, wellness programs, and record-keeping and training practices. In addition, effective immediately, employers must post the new version of the EEOC poster – “Equal Employment Opportunity is the Law” – which incorporates both GINA’s new requirements as well as changes made by the recent amendments to the Americans with Disabilities Act (“ADA”), which took effect on January 1, 2009.

For more information, click on the following link:  http://www.jdsupra.com/post/documentViewer.aspx?fid=af5f4c95-fa50-41cb-9f9c-dd0fce63ca46.  This link takes you to a three page summary of GINA in either a Word or PDF format, which was written by Stefan.  Additionally, if you go to this link, you can obtain a free EEOC compliance poster, which includes GINA.  This two page poster is produced by the EEOC and is in PDF format.

1. Jacquie Seemann

Partner at Thomson Playford Cutlers

This is fascinating from an Australian perspective. We have nothing like GINA – the closest we come is provisions in our disability discrimation legislation which prohibit discrimination on the ground of a ‘presumed’ disability, including a presumed future disability.

2. Charles Krugel www.charlesakrugel.com

Regarding Jacquie’s comment about perceived disability, it’s the same in the U.S. under our federal & most state disability laws.

Not sure how GINA is any different from perceived disability when, based on my casual assessment of it GINA, it doesn’t appear to differ greatly from the perceived disability status.

Possibly, this is a matter of the U.S. Congresses addressing an issue that’s already been addressed in prior legislation; i.e., they’re calling greater attention to a hot and developing medical and privacy issue.

Speaking of privacy, I’m also, not sure of the GINA implications or overlaps with HIPPA either. Hopefully, these concerns will be addressed sooner rather than later.

3.        Stefan R. Miller

California Employment Law Attorney, Independent Workplace Investigator, Trainer and Principal of The Employers Law Group

I agree that there is a lot of overlap between GINA’s prohibitions and existing laws prohibiting perceived disability discrimination, including discrimination against someone for having a record of impairment (e.g., cancer). Like Charles, I agree that part of this is Congress’ effort to raise the profile of an emerging issue, particularly in the face of what appears to be some sort of significant legislative changes on health care. The big target of GINA was the health insurance industry but since a lot of information feeds through to health insurance companies from employers, I suspect Congress felt that they need to include protections in this particular piece of legislation. GINA also applies to employer-sponsored health insurance plans and, therefore, prohibits collection/use of genetic information in that sphere as well.

While I do not profess to be a GINA “expert”, I’ll take a stab at trying to identify some “new” wrinkles to GINA which fill in prior “gaps” in the law.

1. GINA establishes clear prohibitions about even seeking/collecting genetic information in the first place both through pre-employment and job pre-qualification medical examinations as well as in connection with wellness programs.

2. GINA also codifies into statute privacy provisions relating to how genetic information – including information inadvertently learned by the employer – must be handled/protected. I don’t know whether there are other existing federal statutory provisions that occupy this space. (In California, we have the Confidentiality of Medical Information Act.)

3. Notwithstanding substantial overlap with perceived disability discrimination under the ADA, there appears to be a subtle gap filled in by GINA. (I add this caveat: being out here in California where plaintiffs rarely sue under federal law — as California law is significantly more favorable — I will defer to those with more knowledge of ADA.) One thing GINA appears to be driving at is the notion of discriminating against someone because of the possibility one is susceptible to one day having a disease or genetic condition at some point in the future due to family history. I don’t believe that is covered under the ADA. In other words, the employer learns (either through an inadvertent self-disclosure or through a pre-employment medical exam) that Applicant’s sibling or parent was just diagnosed with a serious form of cancer. While there is no evidence that Applicant has the disease or that the employer believes Applicant is presently disabled in any way, employer refuses to hire Applicant for fear that at some point in the future, Applicant will become disabled. Another example would simply be if an employer terminated Employee X after learning that a sibling or parent has some form of cancer out of a generic concern employee would one day get the same cancer and have increased health insurance premiums or become disabled — even if employer contends it had no knowledge of Employee X having cancer and that, in fact, employer did not believe Employee X had cancer.

4. Even on the HIPAA/GINA issues, here again, I believe the changes are primarily on the insurance side. However, I believe that HIPAA still governs and applies to unauthorized disclosures of genetic information, an areas that GINA does not address. As for insurance issues, my understanding is that HIPAA permitted underwriters to use genetic information for underwriting purposes. GINA prohibits health insurers from collecting/using genetic information for underwriting/eligibility. My further understanding is that, while HIPAA already provides some protection against genetic discrimination in group insurance, GINA extends coverage to the individual insurance market.

I’d be interested in hearing anyone else’s thoughts or insights.

- Stefan

Stefan R. Miller wrote:

Here’s another resource I recently came across at John’s Hopkins Genetics & Public Policy Center. Consistent with our prior discussion about the primary purpose of GINA, it appears that most of the information on their website is focused on the health care side. But here are some FAQs which are also directed at employment discrimination:http://www.dnapolicy.org/gina/faqs.html

I know there are a few other limited exceptions but I also came across something else I had not seen previously which mentioned an employer can conduct genetic testing if expressly authorized by the employee and if the information does NOT go to the employer but instead goes only to the employee and his/her treating health care providers. I presume this is in connection with an employer wellness program but there was no specific citation or reference.

On September 24, 2009, I presented at the University of Illinois’ “Finding Talent” program for employers & recruiters. My presentation concerned legal issues surrounding background checking, electronic communication & social networking in recruiting & selection.

My seminar handout, PowerPoint, some cases and sample background checking waiver forms are available here.

The actual seminar was recorded as a webinar and is available here (due to WordPress’ file size restrictions the link takes you to a zipped file which requires unzipping; other than that it’s a typical media file that can be played on most media players).

On November 5, I’ll be speaking at the Chicago chapter of Financial Executives International (FEI), along with my colleagues below. This is a morning meeting at the Rosewood in Rosemont.

On November 6, 2009, Ill be presenting my 2nd “Assessing Business Liabilities – A Legal & Accounting Perspective” seminar.  Like my 1st seminar, I’ll be presenting with 3 other attorneys & a CPA. This is at the Silver Stallion Restaurant, 1274 Lee Street, Des Plaines, IL (breakfast will be served).  The seminar is free.

The focus of this seminar is assessing a business’ liabilities from the legal & accounting perspectives. Attendees will be able to ask questions about your their own business’ situation.

Topics will include:

• Reducing Income Tax Liabilities
• Real Estate Assessment & Taxes
• Employee Problems & Human Resources
• Intellectual Property – Value & Potential Problems
• Partner Agreements – Dispute Resolution

Speakers are:

• Frederick R. Dempsey – Real Estate Tax Appeals Attorney
• Leon Edelson – Intellectual Property Attorney
• Scott Greenberg – CPA
• Me
• Barry Mortge – Attorney for Closely Held Businesses

ADVANCE REGISTRATION IS REQUIRED AS SPACE IS LIMITED; RSVP By AUGUST 14th

For more information and to register, please call Ivey at 847-299-9901 or e-mail her at i.compall@hgaltd1.com; you can also contact me.

Presented by Hirsch Greenberg Accounting Ltd
950 Lee St
Des Plaines IL

We’re doing 2-3 more of these seminars before year’s end.  I’ll post that information as it becomes available.

Except for my PowerPoint, all documents are PDF formatted

My Power Point (20 slides)

My seminar handout (13 pages)

American Red Cross Reference & Background Check Disclosure Form

Kier Property Management Housing Background Check Forms

Roman Catholic Archdiocese of Atlanta Background Investigation Consent Form

Northrop Grumman Disclosure Form

Background Release Form Kreuzberger AssociatesARC RBC

Konop v Hawaiian Airlines Inc, 302 F3d 868, 9th Cir Fed Ct of Appeals 2001

Fischer v Mt. Olive Lutheran Church, WD Wis (Federal Circuit), 2002

On September 24, 2009, from 6pm-7:30pm, I’ll be presenting at the University of Illinois’ “Finding Talent” program for employers & recruiters.   It’s at the U of I’s Alumni Career Center, 200 S. Wacker Drive, Chicago, in the Orange and Blue room.   My presentation concerns legal issues surrounding background checking, electronic communication & social networking in recruiting & selection.  It’s sponsored by the Alumni Career Center at the University of Illinois Alumni Association.  Those interested in attending this free program should contact Bernice Allegretti, Assistant Director of Employer Relations, at 312-575-7830 or ballegre@ad.uiuc.edu.  For travel and parking directions click here. Feel free to contact either Bernice or me with any questions.

I’ll soon be posting my handout, PowerPoint & some topical cases on this site & my LinkedIn & SlideShare pages.