June 4, 2008

New Law Prohibits Genetic Discrimination

After several years of consideration, Congress has passed and President has signed the Genetic Information Nondiscrimination Act of 2008 (“GINA”) (Public Law 110-233).  Of interest to employers, this law affects both employment practices and health plan administration. 

Employment Practices

With regard to employment practices, the law adds genetic conditions and disorders to the list of protected classes under Title VII of the Civil Rights Act.  This aspect of the law applies to employers employing 15 or more employees.  Specifically, the employer cannot refuse to hire, cannot discharge, or otherwise discriminate against any employee, including an applicant, due to that individual’s genetic information, in any terms, conditions, or privileges of employment, including compensation.  Employers cannot request information about an individual’s genetic make-up, nor can the employer purchase such information. 

The law provides some limited exceptions, such as in the case of an inadvertent  collection of genetic information, or the collection of genetic information to monitor exposure to toxic substances, among other things. 

While regulations are expected to be issued prior to this law’s effective date (November 21, 2009), employers should begin reviewing their discrimination policies to ensure protection of genetic information.  Employers should also review any requests for medical information to make certain that the documents do not improperly request genetic information.

Health Plan Administration

Health plans of all types, whether individual or group, insured or self-funded, and whether sponsored by private, public or not-for-profit employers, are prohibited from using an individual’s or his/her family member’s genetic information for eligibility and rating purposes, except to the extent that it is based on a manifest condition.  Plans are also prohibited from altering a premium or contribution amount based upon an individual’s genetic nature.  Health plans are permitted to utilize genetic information for payment purposes, as long as this is done in accordance with the HIPAA privacy rules.  In other words, only the minimum necessary information to make the payment determination can be requested.  These provisions become applicable to health plans for plan years beginning on or after May 21, 2009.


The information contained in this Benefit Beat is not intended to be legal, accounting, or other professional advice, nor are these comments directed to specific situations.

As required by U.S. Treasury rules, we inform you that, unless expressly stated otherwise, any U.S. federal tax advice contained in this Benefit Beat is not intended or written to be used, and cannot be used, by any person for the purpose of avoiding any penalties that may be imposed by the Internal Revenue Service.

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