Employment Alert: Congress Approves Genetic Anti-Discrimination Legislation

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On May 1, 2008, Congress passed the Genetic Information Nondiscrimination Act (GINA or the “Act”), which President Bush is expected to sign into law this month. The long-awaited legislation makes it illegal for employers and health insurers to discriminate against individuals based on their genetic information. Title I of the Act prohibits health insurers and plans from requiring genetic testing and from discriminating based on genetic information in enrollment and premium-setting. Title II prohibits employment discrimination on the basis of genetic information, such as a person’s predisposition for cancer, sickle cell anemia, or diabetes. In particular, the Act:

prohibits discrimination based on genetic information in hiring, firing, compensation, and other employment decisions;

prohibits employers from collecting genetic information through workplace genetic testing or other means, with very narrow exceptions including (1) if such information is necessary for Family and Medical Leave Act of 1993 (“FMLA”) certification requirements, (2) if the information is used to monitor the effects of hazardous workplace exposures, or (3) if the employer conducts DNA analysis as a forensic laboratory; and

imposes strict workplace confidentiality and nondisclosure rules for all genetic information.

The Act expressly states that disparate impact on the basis of genetic information does not establish a cause of action under GINA.

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