Top Ten Developments in Employment Law for HR Professionals in Virginia — #3

The top ten developments in employment law for HR professionals in Virginia for 2009 continues, in no particular order. Number 3: the Genetic Information Nondiscrimination Act (“GINA”) of 2008. More after the break.

On November 21, 2009, the employment-related provisions of the Genetic Information Nondiscrimination Act, or GINA, went into effect. GINA applies to all employers with 15 or more employees, and prohibits both employers and health insurers from using genetic information to discriminate with regards to the terms and conditions of employment or health care coverage. GINA also contains a retaliation provision that prohibits discrimination against individuals for opposing an unlawful genetic discrimination practice or for testifying, assisting or participating in a related investigation. The Act does not permit disparate impact claims, however.

Employers are also prohibited from acquiring genetic information from their employees subject to a few limited exceptions. These include, for example, use of the information as part of a wellness program with the employee’s written consent, as part of the certification process under the Family and Medical Leave Act and other leave statutes, or for use in monitoring the effects of toxins in the workplace. Employers are allowed to maintain genetic information on their employees so long as the information is kept separately from other employee information and is kept confidential (subject to a few limited exceptions).

Under GINA, “genetic information” is defined as information regarding the employee’s genetic tests, the tests of family members, or “the manifestation of a disease or disorder in family members.” The term “family member” includes dependents and any first, second, third, or fourth-degree relatives, which would include great-great-grandparents and first cousins once removed.

GINA’s broad definitions of “genetic information” and “family member” are a potential source of liability for employers because they could encompass the medical histories of a large number of individuals related to each employee. This poses a serious problem for employers who maintain medical history information in their employee records and are unaware of the consequences of maintaining such information. To that end, GINA provides a safe harbor for employers that inadvertently acquire family history information, so long as the employer does not use the information to discriminate with regards to terms and conditions of employment. Further, GINA does not prohibit the “use, acquisition, or disclosure of medical information that is not genetic information about a manifested disease, disorder, or pathological condition that has or may have a genetic basis.”

Even with these safe harbors in place, GINA’s broad scope still poses a significant challenge for employers. Employers should locate any employee family medical histories they have on file and separate them from other employee records, and also take time to ensure that any policies and procedures that elicit medical history from employees are in compliance with GINA. GINA’s health care provisions, which took effect last May for individual plans and on December 7 for group health insurers, also may require some changes by employers. Employers are advised to carefully evaluate the questions they ask their employees on health risk questionnaires for determining coverage eligibility.

As a side note, Virginia law already prohibits employers from requiring genetic testing as a condition of employment, or discriminating with regards to the terms and conditions of employment on the basis of a genetic characteristic regardless of how the information was obtained. (VA Code § 40.1-28.7:1)