The Genetic Information Nondiscrimination Act passed in 2008. Since then, most of the discussion benefit plan professionals have had regarding GINA has focused on HIPAA notice requirements and compliance with GINA restrictions in wellness plans. This month, the U.S. Equal Employment Opportunity Commission settled its first case brought under GINA and the facts should serve as a reminder for employers about what GINA really does.

By way of background, GINA prohibits health plans from discrimination on the basis of the genetic information of enrollees. Health plans may not use genetic information to make eligibility, coverage, underwriting or premium-setting decisions. Plans may not request or require individuals or their family members to undergo genetic testing or to provide genetic information. As defined in the law, genetic information includes family medical history and information regarding individuals' and family members' genetic tests. GINA also prevents employers from using genetic information in employment decisions such as hiring, firing, promotions, pay, and job assignments. Genetic information means information about an individual’s genetic tests, the genetic tests of family members of the individual, the manifestation of a disease or disorder in family members of the individual or any request for or receipt of genetic services, or participation in clinical research that includes genetic services by the individual or a family member of the individual.

The case at hand involved a company that asked an applicant about her family medical history as a component of her post-offer medical exam. The exam was mandatory and had to be completed in order to obtain employment. The questionnaire included questions about heart disease, cancer, arthritis and mental illness, among others. The employee was eventually denied employment and the EEOC charged that the company violated GINA. The matter resolved for a $50,000 settlement and a consent decree agreeing not to discriminate in the future.

So the mistake here was the appearance of discrimination based on family medical history. The fact that the employer asked about that history implies that they misused it. So before you ask employees or potential employees about their family medical history for any reason, remember GINA and make sure you are not collecting and using that information for inappropriate purposes.

Used with permission from Fox Rothschild LLP. Keith R. McMurdy is an employee benefits attorney at the firm’s New York City office. To contact the author: kmcmurdy@foxrothschild.com. This Legal Alert is not intended to be, and should not be construed as, legal advice for any particular fact situation.

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