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Interim Final Genetic Non-Discrimination Regulations and Poster Issued

October, 28 2009

The Genetic Information Non-Discrimination Act (GINA) of 2008 prohibits discrimination based on genetic information of employees and health plan participants. The Departments of Labor and Health and Human Services, and the Internal Revenue Service issued interim final regulations on October 7, 2009 governing genetic non-discrimination requirements for health plans and health insurance issuers. The primary impact of these regulations for employers is the regulations' restriction on collecting genetic data in connection with wellness and disease management programs. In addition, the Equal Employment Opportunity Commission (EEOC) has issued an update to the equal employment opportunity poster covering genetic non-discrimination that employers with 15 or more employees are required to post.

Health Plan Regulations

The regulations governing health plans prohibit group health plans from collecting genetic data prior to enrollment in the plan and also prohibit collecting or using genetic data in underwriting the benefit coverage. The primary impact for most employers is the underwriting prohibition's effect on wellness programs' use of health risk assessments. Many wellness programs and disease management programs offer premium discounts or cash rewards to participants who agree to undergo a health risk assessment (HRA) that may alert them to medical conditions or predisposition to having a condition. Some programs also offer targeted services or special discounts on treatment to participants with certain risk factors that are discovered as a result of the HRA.

GINA's regulations prohibit plans from collecting genetic information from participants in the plan for the purpose of offering premium discounts, rebates, rewards or special benefits not otherwise available to other participants. Thus, a plan that uses a HRA that asks about family medical history and offers a premium discount for participating, or targets special services based on the results would violate the new regulations. HRAs may continue, however, to collect such data if it is not in connection with any discounts, rebates, rewards or special services.

The regulations go into effect for plan years beginning after December 7, 2009 and expire on or before October 1, 2012 if not replaced with final regulations prior to that date. For most employers' plans, this means the rules are effective January 1, 2009. Because the regulations are interim regulations, the government is accepting comments on them, which must be submitted on or before January 5, 2010. A copy of the regulations is available by clicking here.

New EEO Poster

The EEOC has issued a new poster with updated information concerning GINA's non-discrimination obligations of employers. Employers with 15 or more employees should replace their current EEO poster with the new one, which is available at EEOC's website, or by clicking here. Alternatively, employers may print a supplement poster and post it beside their current EEO poster. The supplement is also available from EEOC's website, or by clicking here.

GINA's non-discrimination rules for employers go into effect November 21, 2009. Like current rules prohibiting discrimination based on race, color, sex, national origin, or religion, GINA's rules prohibit employers from discriminating in employment based on genetic information. Genetic information includes information about an individual's genetic tests, the genetic tests of an individual's family members, and the manifestation of a disease or disorder in family members. Additionally, employers are prohibited from collecting genetic information about employees, except in limited circumstances, such as offering voluntary health programs, gathering family medical information for use in FMLA certification, or when state or federal law requires genetic monitoring due to workplace toxins. Any genetic information lawfully collected must be treated the same way as medical information is under the Americans With Disabilities Act. That is, the information must be kept secured and separate from employment files.

What Should I Be Doing?

Employers with group health plans that offer a wellness program or disease management program need to evaluate their programs' terms to ensure compliance with the prohibition on collecting genetic data. In addition, employers with 15 or more employees should review their current employment practices to ensure that they are not collecting or using genetic data unlawfully and must post the updated EEO poster on November 21, 2009.

If you have questions about your organization's obligations under GINA, or need assistance complying with GINA's requirements, please do not hesitate to contact us.

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