Is it Too Late to Put GINA Back in the Bottle??

By
January 14, 2010

The Genetic Information Nondiscrimination Act of 2008, affectionately known as “GINA,” is a big deal for employers and sponsors of group health plans. For those of you who have been busy with your day job, here are the answers to all of the questions you would have asked if you had the time…
What is GINA? GINA contains two parts – Title I and Title II. Title I provides that group health plans and health insurers may not use genetic information for underwriting purposes, request or require genetic information prior to enrollment, or require an employee or the employee’s family members to take a genetic test. Title II prohibits employment discrimination based on genetic information.
What is “genetic information?” Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about any disease, disorder, or condition of an individual’s family members (i.e., an individual s family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition.
When is GINA effective? It is effective now! Title I is effective for plan years beginning on and after May 21, 2009, meaning it was effective January 1, 2010, for calendar year health plans. Title II took effect on November 21, 2009. (Note also that in October of 2009 the Department of Labor (“DOL”), Treasury Department, and Department of Health and Human Services issued joint interim final regulations under Title I of GINA. The EEOC completed final regulations under Title II of GINA several months ago, but they are being reviewed by the Office of Management and Budget and have not yet been released.)
How does GINA affect health plan eligibility? Title I prohibits the collection of genetic information prior to or in connection with enrollment in a group health plan. This includes the collection of a family medical history prior to enrollment. It does not matter whether the genetic information is used/requested for purposes of determining premiums. Simply the collection of family medical histories during open enrollment is simply prohibited.
How does GINA affect health risk assessments (“HRA”) and wellness programs? GINA prohibits a group health plan from requesting, requiring, or collecting genetic information for purposes of “underwriting.” This means genetic information cannot be solicited as part of an incentive/disincentive program such as a cash payment, premium discount, or rebate in exchange for completing an HRA or participating in a wellness program. The determination of the premium a group health plan participant must pay is considered “underwriting.” Even innocuous HRAs can run afoul of GINA. For example, HRAs should not include any inquiry that may prompt an individual to offer family medical history. Open-ended questions should include an explicit statement that genetic information should not be provided.
So, is there a way to use HRAs and wellness programs and not run afoul of GINA? Yes – but it is complicated. The interim Title I regulations indicate that a wellness program could offer two HRAs to employees after enrollment. Remember, any collection of genetic information prior to enrollment (even if not for underwriting purposes) is prohibited. The first HRA would be used to determine the availability of the incentive and, therefore, could not require the employee to disclose any genetic information. The second HRA would be voluntary and would request, but not require, the disclosure of genetic information. This second HRA would not be tied at all to the incentive. Because the regulations are complex and provide for other technical requirements, employers should consult legal counsel to ensure a group health plan with these options complies with GINA.
What are GINA’s discrimination provisions? It is illegal to discriminate against employees or applicants because of genetic information. GINA prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers, and limits the disclosure of genetic information.
Can an employer ever obtain genetic information? It will usually be unlawful for an employer to request/obtain genetic information. There are six narrow exceptions to this prohibition:

Inadvertent acquisitions of genetic information do not violate GINA, such as in situations where a manager or supervisor overhears someone talking about a family member’s illness.
Genetic information (such as family medical history) may be obtained as part of health or genetic services, including wellness programs, offered by the employer on a voluntary basis if certain specific requirements are met.
Genetic information may be acquired as part of the certification process for FMLA leave (or leave under similar state or local laws) where an employee is asking for leave to care for a family member with a serious health condition.
Acquisition through commercially and publicly available documents like newspapers is permitted as long as the employer is not searching those sources with the intent of finding genetic information.
Acquisition through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace is permitted where the monitoring is required by law or, under carefully defined conditions, where the program is voluntary.
Acquisition of genetic information of employees by employers who engage in DNA testing for law enforcement purposes as a forensic lab or for purposes of human remains identification is permitted, but the genetic information may only be used for analysis of DNA markers for quality control to detect sample contamination.

What are the remedies/penalties under GINA?

For cases brought under Title I, remedies include:

For Title II discrimination cases, remedies are similar to violations of Title VII, including: reinstatement, back pay, injunctive relief, pecuniary and non-pecuniary damages (compensatory and punitive damages), and attorneys’ fees and costs.
Excise tax: The employer that sponsors the group health plan is liable for a federal excise tax in an amount equal to $100 per day per violation (each person affected would be one violation), up to the lesser of 10% of the amount spent by the employer during the previous year for group health plans or $500,000. The minimum penalty is $2,500, but if the violations for any year are more than de minimis, then the minimum penalty is $15,000. The IRS will not impose the excise tax if the violation was due to reasonable cause and not willful neglect, and is corrected within 30 days of discovery, or the date on which it could have been known with reasonable diligence.
Civil penalties: The DOL can assess a civil penalty against the plan sponsor or insurer in an amount that tracks the federal excise tax. The DOL will not impose the civil penalty if the violation was due to reasonable cause and not willful neglect, and is corrected within 30 days of discovery, or the date on which it could have been known with reasonable diligence

For Title II discrimination cases, remedies are similar to violations of Title VII, including: reinstatement, back pay, injunctive relief, pecuniary and non-pecuniary damages (compensatory and punitive damages), and attorneys’ fees and costs.

What Should Employers Do Now to Comply With GINA?

Train management and human resource managers;
Update workplace posters, handbooks, questionnaires, and other internal documents. The updated EEOC poster is available on the EEOC website at http://www1.eeoc.gov/employers/poster.cfm;
Review employment applications and employee questionnaires to ensure that those documents are not intentionally or inadvertently requesting genetic information, including information about an applicant’s or employee’s family medical history;
Review HRAs and group health plan enrollment materials; and

Contact health insurance providers and third-party administrators to ensure they are not soliciting prohibited genetic information.

If you have questions regarding the above, please contact Mary Ellen Schill or Sara Ackermann, the authors of this article, or any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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