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By Karen M. Kroll
A new but little-noticed law may complicate companies' efforts to hold down health-care costs through wellness programs and other efforts to encourage employees to look after themselves.
GINA, or the Genetic Information Nondiscrimination Act of 2008, went into effect last year, making it the first major piece of non-discrimination legislation in decades. "The basic theme throughout GINA is that employers can't request or use genetic information," in employment decisions, says Daniel Vorhaus, an attorney with Robinson, Bradshaw & Hinson in Charlotte, North Carolina, and editor of the Genomics Law Report.
Moreover, the definition of genetic information under GINA is broader than one might think. While the results of DNA tests are considered genetic information, so are employees' family medical histories.
GINA is divided into two titles, or sections. Title I addresses health insurance, and it "generally will prohibit discrimination based on genetic information in connection with health coverage and employment," according to information from the Department of Health and Human Services. Among other restrictions, insurers and health plan administrators can't request genetic information from an individual in order to determine eligibility for the plan or to set premiums, says Joanne Hustead, senior health compliance specialist with The Segal Group. While the law directly regulates health insurers, employers that are plan sponsors will want to make sure that any other health service providers with which they work, such as disease management firms, are not taking steps the plans themselves couldn't take, she adds.
Title Two of GINA covers employment practices, and contains three overarching rules, says Kerry Leibig, senior attorney advisor with the Equal Employment Opportunity Commission:
- Employers can't, under any circumstances, use genetic information to make employment decisions. "It's like race or gender," Leibig notes.
- Employers are restricted in their ability to acquire genetic information. "If you are asking for this information, or even putting yourself in a position to acquire this information, you may be on the wrong side of GINA, even if you're not using the information illegitimately," Vorhaus says.
- Employers that possess genetic information about an employee are required to keep it confidential, as they would with any medical information.
These provisions mean that employers who require medical exams upon employment can't, as part of the exam, ask candidates for their family medical histories. Similarly, companies that offer wellness programs, such as diabetes management courses, can ask about family medical history only once an employee is seeking to enroll in the program, and only to determine if the program is medically appropriate.
While the restrictions make it seem as though any conversation with employees about their health is off-limits, that's not exactly accurate. For instance, what's known as "the water cooler exception" in GINA protects employers who overhear an employee discussing what would be considered genetic information, such as the mention of a family member who is struggling with cancer. Employers also can ask about an employee's family medical history if he or she is requesting time off through the Family Medical Leave Act to care for a sick family member.
One thing that execs can't do is to ignore the law, Vorhaus notes. First up is gaining an understanding of it. Management also needs to review its human resource practices to determine if the company is collecting genetic information, even inadvertently. If so, that has to stop.
Finally, top managers need to spread the word. "Tell employees, 'We don't want this information,'" says Wendy Lazerson, co-chair of the labor and employment group with law firm Bingham McCutchen LLP. "It's like when an employee comes to you from a competitor."
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