Genetic Information Nondiscrimination Act (GINA)

Employers should be aware of a significant statute that imposes new nondiscrimination requirements on group health plans, employers and insurers: the Genetic Information Nondiscrimination Act (GINA).

Broadly, GINA prohibits:

  • the use of genetic information in making employment-related decisions;
  • the intentional acquisition of genetic information about applicants and employees;
  • retaliation based on genetic information; and
  • it imposes strict confidentiality requirements.

Group health plans and health insurers may not request or require the provision of genetic information of an individual or the individual's family members, and may not use genetic information for decisions regarding coverage, costs of coverage or pre-existing conditions. GINA bars collection of genetic information prior to the date the employee or beneficiary becomes covered under the plan.

For group health plans and insurers, the law is effective for plan years beginning on or after May 21, 2009. However, federal agencies recently released regulations implementing the law, which are effective for plan years beginning on or after December 7, 2009. (In both cases, requirements apply to calendar-year plans on January 1, 2010).

GINA specifically prohibits plans or insurers from:

  • increasing the group premium or contribution amounts based on genetic information;
  • requesting or requiring a person to undergo a genetic test;
  • requesting, requiring or purchasing genetic information prior to, or in connection with, enrollment; or
  • requesting, requiring or purchasing genetic information at any time for underwriting purposes.

(Note: Wellness programs that provide any kind of reward to members for completing a health risk assessment (HRA) may be in violation if they request information on family medical history, which is considered to be genetic information.) 

What should businesses do now?

  • Review plans to make sure they are consistent with these rules.
  • Conduct a compliance review to ensure that HRAs and associated policies and procedures comply with GINA’s prohibition on using genetic information prior to or in connection with enrollment or for underwriting purposes, and to make any necessary changes.
  • Update training materials and supplement training for HR employees and others with access to protected information and employee data.