Gina Is Coming! - Genetic Information Nondiscrimination Act

The Genetic Information Nondiscrimination Act or GINA is a federal law that prohibits discrimination in health coverage and employment based on genetic information. Title II of GINA is applicable to employers who employ 15 or more employees and prohibits employers from using genetic information for hiring, firing, or promotion decisions, and for any decisions regarding terms of employment. Title II of GINA will take effect on November 21, 2009. Under GINA, genetic information means:

  1. an individual's genetic test;
  2. genetic test of an individual's family members; or
  3. manifestation of a disease or disorder of an individual's family members.

Although the scope of GINA is potentially wide reaching, it remains to be seen the extent to which GINA will depart significantly from existing law. For example, employment discrimination based on protected genetic information has been prohibited in the executive branch of the federal government for several years pursuant to President Clinton's Executive Order 13145. In addition, the Equal Employment Opportunity Commission (EEOC) has taken the position that discrimination based on genetic information already may be prohibited by the Americans with Disabilities Act (ADA). Finally, in Virginia, employers are already prohibited from requesting or requiring a genetic test as a condition of employment.

In light of the change in federal law, however, employers should revise their anti-discrimination policies and educate their managers and human resource professionals. In particular, employers who sponsor work place wellness programs should review their programs and be on the alert for how these new regulations may require extensive modifications to these programs. The EEOC, the government agency assigned to enforce GINA, has proposed regulations, comments regarding those regulations have been received and the comment period has closed. As of the date of this article, the regulations have not been promulgated in their final form.

For questions regarding GINA or other employment laws or regulations, contact Mary Elizabeth Davis (804) 697-2035

Spotts Fain publications are provided as an educational service and are not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel.