Prepared by:

Jeff Duncan Brecht

Attorney

Sussman Shank, LLP

503-243-1652

Long Term Care Industry and Other Employers Still Await EEOC Regulations on Law that Prohibits Employers from Considering Genetic Information In Making Workplace Decisions

George Orwell might have been pleased to learn that sixty years after the publication of 1984, a new federal law would protect employees from misuse of their genetic information. On November 21, 2009, the Genetic Information Nondiscrimination Act (“GINA”) went into effect.

The EEOC published proposed GINA regulations in 2009 and was supposed to have published final regulations by May 2010, but publication of the finalized regulations rule has been delayed. This leaves the health care industry and other employers in the potentially precarious position of predicting how the EEOC’s interpretation of GINA will be set out in the finalized regulations.

GINA makes it unlawful for a covered employer to "fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information." For example, an employer could not deny an employee a promotion because the employee had a genetic predisposition to a disease, such as multiple sclerosis. Covered entities in possession of genetic information about applicants or employees must keep the information confidential.

GINA applies to all entities covered under Title VII of the Civil Rights Act, including employers with 15 or more employees, employment agencies, labor organization, and certain federal employers.

GINA broadly defines genetic information as information about the genetic tests of: (1) an individual; (2) an individual's family members; (3) any fetus of an individual or family member who is a pregnant woman, and such tests of any embryo legally held by an individual or family member utilizing reproductive technology. Genetic information also includes the manifestation of a disease or disorder in an individual's family members. Finally, genetic information includes any request for, or receipt of, genetic services or participation in research that includes genetic services by an individual or an individual's family members. Genetic information does not include information about the sex or age of any individual.

A genetic test under GINA does not include routine tests such as cholesterol tests and liver enzyme tests, and it also does not include tests for alcohol or drug use. Instead, under GINA a genetic test analyzes human DNA, RNA, chromosomes, proteins, or metabolites that detect genotypes, mutations, or chromosomal changes.

For example, if an employer learns that an employee’s family medical history suggests that promoting the employee to a more stressful position might cause the employee to suffer heart problems, GINA would prevent the employer’s consideration of that information in deciding whether to promote the employee.

Employers who violate GINA may be liable for monetary and emotional distress damages, including punitive damages, and also attorneys’ fees and costs. Aggrieved employees may also be awarded reinstatement, hiring, promotion, and injunctive relief.

The EEOC will eventually make good on its promise to publish a final version of GINA regulations. In the meantime, health care employers and other entities covered by GINA should immediately: (1) train management and human resources personnel on GINA and (2) update their policies and procedures to comply with GINA. Covered employers should also display an updated workplace poster that includes GINA information. A supplemental workplace poster that outlines GINA is available on the Internet site of the U.S. Equal Employment Opportunity Commission (EEOC).

If you have any questions concerning GINA or other employment law issues, please contact Jeff Brecht at jeffb@sussmanshank.com or (503) 243-1652.