OOPS Can't Ask That: The Impact of GINA At Work

When the Genetic Information Nondiscrimination Act (GINA), which went into effect last November, was first passed many HR types scratched their heads and said that they thought it was not really anything that would have day to day application to them. Indeed I was one of them. However, an article that appeared in both the print and online versions of the Wall Street Journal on February 2, 2010 pointed out some of the impact that GINA is having in the workplace. The article, written by Cari Tuna and entitled Wellness Efforts Face Hurdle, points out that company wellness programs may run afoul of the new law. Tuna, writes that many companies, in trying to improve their bottom-line, try to get workers to participate in wellness programs. Often these wellness programs start off with detailed health questionnaires that may include family historys. To increase participation a company may offer a cash incentive or an insurance premium reduction. A WIN-WIN for everyone you would think. The employee gets some cash and gets exposed to a wellness program that may improve their health or prepares them for future issues. The company gets a win by having healthier employees and thus reducing their costs in insurance and lost productivity due to ailing employees.

Unfortunately GINA takes the WIN out of that situation. According to a very fine publication of  Seyfarth Shaw, entitled GINA Restricts Acquisition and Use of Genetic Information by Employers and Group Health Plans, these actions fly in the face of the law. According to the article "...under the new regulations, a plan may not offer participants a different deductible, premium or contribution amount in return for completing a health risk assessment or participating in a wellness program that collects genetic information." However, the article also points out "...the regulations make it clear that a plan may offer a reward for completing an HRA (after and unrelated to enrollment) that does not ask about family medical history or genetic tests or services received by the individual or the individual’s family. The health plan may also request that the individual complete an HRA that inquires about family medical history and/or individual genetic test results, provided that completion of the HRA is wholly voluntary and is not tied to any financial incentive or disincentive."  So the result of this is that if you are currently using health risk assessments you need to familiarize yourself with this law.

The law also controls how health insurance companies deal with this information. Insurers are prohibited from conditioning "the availability of a disease management program or other benefits on an individual’s answers to HRA questions about individual or family medical history."  The article suggests that all employers review their agreements with their insurers to make certain they are in compliance with GINA. Failure to do so may result in HIPAA violations.

The Seyfarth Shaw article also points out steps that employers need to take to insure they are in compliance. These include: "...omitting genetic information from post-offer, pre-employment health history examinations and/or questionnaires; updating policies to prohibit discrimination based on genetic information; adding claims of “genetic discrimination” to waivers and releases where appropriate; and segregating lawfully-acquired genetic information from personnel files. Employers also must post information regarding GINA’s protections, which is contained in EEOC’s revised “Equal Employment Opportunity is the Law” poster..."  If you want more information follow the link provided above.

Tuna's article, the online version, reports that there have been some situations in which an employer has been accused of misusing genetic information and it cost them, to the tune of $2.2 million. They were investigated by the EEOC.

Because this law is still pretty new many people are not yet sure what they should do. The EEOC has promised that they will publish guidance for employers later this year and the Department of Labor is working on guidance for insurers. Part of the "great unknown" is in the area of "casual" disclosure. So stay tuned. In the meantime follow the advice in Seyfarth Shaw's article.