NEWS, EVENTS, PUBLICATIONS & EMERGING ISSUES

SW&M EMERGING ISSUE
October 23, 2009

THE NEWEST PLAYER IN EMPLOYMENT LAW? MEET GINA

In May 2008, President Bush signed into law the Genetic Information Nondiscrimination Act of 2008 (“GINA,” or the “Act”). GINA includes two titles: Title I addresses the use of genetic information in health insurance, while Title II governs the use of genetic information in employment practices. Its purpose is to protect insurance policyholders and employees from discrimination based on genetic information. While this legislation sounds like the stuff of science fiction, it will have very real implications for our credit union clients in the employment law context.

Like the more familiar “Title VII” anti-discrimination provisions, GINA applies to employers with 15 or more employees, and prohibits them from using one’s “genetic information” to segregate or classify employees, or to make hiring, firing, promotion, or other employment decisions. The Act also places restrictions on the acquisition of genetic information about applicants or employees, and requires that employers in possession of such information keep it confidential (if in writing, such information must be kept in separate medical files, like information subject to the Americans with Disabilities Act (“ADA”)). As always, there are some exceptions.

So what exactly constitutes “genetic information”? Under the Act, the term is not limited to information about the employee’s (or his or her family’s) genetic tests, but is broadly defined to even include the manifestation of a disease or disorder in a family member (e.g., one’s family medical history). As such, employers may already have “genetic information” for some employees in their existing medical files.

Credit unions should note that Title II of GINA becomes effective on November 21, 2009. The new law may impact many aspects of your credit union’s operations, including but not limited to:

• The content of your Equal Employment Opportunity and Anti-Harassment Policies;
  
• Updating your Equal Employment Opportunity Commission (“EEOC”) poster(s);
  
• Training for human resources personnel, managers, and hiring personnel;
  
• Your maintenance of confidential employee medical files;
  
• Your wellness program(s), if any;
  
• The monitoring of your group healthcare plan;
  
• Your Family and Medical Leave (“FMLA”) tracking;
  
• Your ADA reasonable accommodation procedures; and
  
• Your subpoena procedures.
  

Note that our discussion here does not contemplate state law standards, which may provide similar or greater protections than the federal “floor” standard. For example, California’s fair employment and housing laws, which prohibit workplace discrimination based on a medical condition, have also prohibited discrimination based on “genetic characteristics” for roughly the past decade. If your credit union would like more information or assistance with any of the issues discussed here, please feel free to contact our office.

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