HR News Update

Bush Signs Bill Barring Genetic Bias



President Bush has signed into law the Genetic Information Nondiscrimination Act (GINA) that protects the confidentiality of individual genetic information. Under the law, "genetic information" is defined to include information about an individual's genetic tests, genetic tests of family members, and a disease or disorder in the family. GINA applies to both insurers and employers.

Group and individual health insurers are prohibited from using genetic information to determine insurance eligibility. Increasing an insurance premium based on genetic information is also prohibited.

GINA prohibits employers from discriminating against employees or applicants based on genetic information. The law applies to all public employers, private employers with 15 or more employees, employment agencies, and labour organizations.

Both insurers and employers are prohibited from requesting or requiring individuals to undergo genetic testing. However, an employer can collect information to monitor the biological effects of toxic substances in the workplace if: 1) written notice is given to the employee; 2) the individual gives written informed consent in advance, or the monitoring is required by law; 3) the individual receives the results; 4) the monitoring is in compliance with federal or state regulations; and 5) the employer receives only aggregated monitoring results without information about specific individuals. There are other exceptions, including one for bona fide wellness programs that protect individually identifiable information.

GINA also has confidentiality requirements. Any genetic information that an employer lawfully possesses must be treated as a confidential medical record. GINA's requirements for confidentiality are the same as the requirements under the Americans with Disabilities Act (ADA). Therefore, if employers comply with the ADA 's confidentiality requirements and keep medical information on separate forms and in separate medical files, they'll be in compliance with GINA.

Covered employers should update their nondiscrimination policies to reflect GINA's provisions. In addition, requests for information from health care providers should be reviewed to avoid obtaining genetic information from care providers. Specific language that reminds the provider not to send genetic information can be added, depending on the type of request.

The law's provisions for insurers take effect in June 2009 and for employers in November 2009.

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