Beleaguered employers attempting to comply with the maze of legal obligations presented by today’s employment laws now have one more federal law to worry about.  On May 21, 2008, President Bush signed into law the Genetic Information Nondiscrimination Act (GINA) of 2008.  The bill passed the Senate unanimously and the House of Representatives by a vote of 414 to 1.

The purpose of the new law is to prevent discrimination against individuals based on their genetic information with respect to health insurance and employment.  

The legislative history of GINA indicates it was passed in response to concern by individuals that caused them to forgo having genetic tests performed for fear of potential discrimination based upon the results of the tests.

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In this respect, GINA is quite different than the employment laws it follows, such as Title VII, Americans with Disabilities Act (ADA), and other laws, which were enacted in response to clearly developed records that demonstrated the need for such laws.  GINA demonstrates a new preemptive approach to a problem that has, by all appearances, not yet developed. Congress’ willingness to regulate in this new fashion is rightfully a cause for concern to employers.

GINA defines “genetic information” broadly, including not only genetic tests done on an individual, but also an individual’s family medical history.  Thus defined, this law is not merely an abstract curiosity to employers – it has real life applicability. 

For example, if a police department became aware of a history of severe and early heart disease in an individual’s family, it could not refuse to hire a candidate on that basis in the belief he might develop heart problems in the future.  If a genetic test determined an individual was predisposed to develop dementia or Alzheimer’s at an early age, this could not form the basis for refusing to hire a 60-year-old research librarian.

The law contains other prohibitions as well: an employer may not collect genetic information from its employees, except in rare circumstances.

Further, employers must safeguard the confidentiality of any genetic information they acquire similarly to the manner in which they safeguard other medical information under the ADA.  Accordingly, an employer must treat such information as a confidential medical record under HIPAA, the Health Insurance Portability and Accountability Act.

An employer that violates GINA is subject to rights and remedies similar to those contained in Title VII, including compensatory and punitive damages.

There is still a lot of uncertainty as to just how much of an impact GINA will have on employers and employees.  Much of that uncertainty will likely be resolved when the U.S. Equal Employment Opportunity Commission, which is responsible for enforcing GINA, issues regulations no later than May 21, 2009, providing more detail on the law’s applicability and enforcement.  The law will become effective and binding upon employers on Nov. 30, 2009.

Don’t let its futuristic-sounding name fool you: GINA is not a law that will apply only to our local bio-tech companies;  it is a law that every Tucson employer should be aware of and take steps to comply with prior to its going into effect in November 2009.

 Contact Joseph Kroeger, an attorney in the Tucson office of Snell & Wilmer LLP, at jkroeger@swlaw.com. Kroeger’s practice is concentrated in the areas of labor and  employment.