In November 2009 employers will began working within the parameters of the Genetic Information Nondiscrimination Act (GINA), more than a decade after first being discussed at the federal level. Some employers will have to make significant changes in their practices as a result of GINA and should begin planning for the changes today. With technological advances organizations have the ability to use genetic information to make decisions not to employee people who will ultimately cost them more in terms of absenteeism or health care costs.
GINA specifically prohibits discrimination against current or potential employees on the basis of their genetic information. Further, employers are prohibited from collecting or purchasing genetic information about a potential or current employee or their family members. Genetic information is defined as information about
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genetic tests from a potential or current employee,
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the genetic tests of people related to a potential or current employee
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or disease or disorder in a person related to a potential or current employee.
There are, however, some exceptions to the law for highly regulated employers. For example, some employers may use genetic information to track an employee’s exposureto dangerous elements in their work environment. Provisions of GINA generally follow the requirements and remedies of Title VII. For example, employees who believe they have been discriminated against on the basis of genetic information must first file a complaint with the Equal Employment Opportunity Commission. Further, damages related to violations of GINA will likely be rewarded in the form of back pay or compensatory damages structured according to the number of employees in the organization.Most employee rights groups applaud the enactment of the new law but some have concerns regarding specific provisions. For example, some believe that GINA may be inconsistent with the Americans with Disabilities Act while others believe GINA will open employers up to frivolous law suits from employees claiming they were discriminated against on the basis of their genetic information.
Several attorneys and scholars watching the issue believe there is no risk of a rash of frivolous suits because there has not been a surge in frivolous lawsuits in the 34 states that currently have state laws similar to GINA.
Please call Attorney Natalie Lynch if your company needs legal guidance in this complicated matter.
