Genetic Information Nondiscrimination Act (GINA)

Almost a year after the GINA statute took effect, the EEOC has at long last issued final regulations to implement the law.

The Genetic Information Nondiscrimination Act (GINA) final regulations took effect last week, on January 10, over a year after the law itself began protecting individuals from genetic information discrimination in the workplace. The final regulations largely adopt the requirements of the proposed regulations, but they do include some noteworthy additions such as a new notice requirement and expanded definitions for genetic information and testing. (This article is excerpted from the December 2010 HR Matters monthly newsletter.)

Employment Discrimination Protections and Definitions

The GINA, like Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA), applies to employers with 15 or more employees. It prohibits covered employers from refusing to hire an applicant, or from discriminating against any employee, with respect to the compensation, terms, conditions, or privileges of employment because of “genetic information.” It also prohibits retaliation against any individual who has opposed any unlawful act under the GINA or because an individual has participated in any investigation, hearing, or proceeding under the law. Further, comments to the final regulations indicate that the EEOC considers the GINA to prohibit harassment based on genetic information.

“Genetic information” is defined to mean, with respect to any individual, information about the individual’s genetic tests, the genetic tests of family members of the individual, and the manifestation of a disease or disorder in family members of the individual. The term also includes a request for or receipt of genetic services (such as genetic tests and genetic counseling) or participation in clinical research involving genetic services. The term does not include information about the individual’s sex or age or about race or ethnicity if the information is not derived from a genetic test.

“Family member” is defined by the Act to include a dependent of the individual, which according to the final regulations includes any person who is a dependent of the individual because of marriage, birth, adoption, or placement for adoption. Further, family members include “any other individual who is a first-degree, second-degree, third-degree, or fourth-degree relative” of the employee or applicant. Although the Act does not define these terms, the final regulations do. A first-degree relative includes parents, siblings, and children; a second-degree relative includes half-siblings, grandparents, grandchildren, aunts, uncles, nephews, and nieces; a third-degree relative includes first cousins, great-grandparents, great-grandchildren, and great uncles and aunts; and a fourth-degree relative includes great-great grandparents, great-great grandchildren, and first cousins once-removed.

“Genetic test” is defined by the Act to mean an analysis of human DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or chromosomal changes. The final regulations give several examples of genetic testing including a test to determine if someone has the BRCA1 or BRCA2 variant evidencing a predisposition to breast cancer.

Testing that is not considered genetic testing includes a medical examination that tests for the presence of a virus that is not composed of human DNA, RNA, chromosomes, proteins, or metabolites; a test for infectious and communicable diseases that may be transmitted through food handling; and complete blood counts, cholesterol tests, and liver-function tests. The final regulations also clarify that testing to determine the presence of alcohol or drugs is not a genetic test, although a test to determine an individual’s predisposition to alcoholism or drug use is.