GINA: Genetic Information Nondiscrimination Act Overview

The Genetic Information Nondiscrimination Act (GINA) is a federal law that protects individuals from discrimination based on their genetic information in both health insurance and employment. For professionals preparing for the complete EPLI exam guide, understanding Title II of GINA is essential, as it specifically governs the employer-employee relationship.

GINA was established to address the growing concern that advancements in genetic testing could lead to individuals being treated unfairly by employers or insurers. In the context of Employment Practices Liability Insurance (EPLI), GINA represents a specific category of protected class, and violations can lead to significant legal exposure and insurance claims. The law prohibits the use of genetic information in making any employment decisions, including hiring, firing, pay, job assignments, promotions, layoffs, training, and fringe benefits.

One of the most frequent points of confusion on the practice EPLI questions involves what exactly constitutes "genetic information." Under GINA, this definition is broad and includes:

• An individual’s genetic tests (e.g., tests that analyze DNA, RNA, or chromosomes).
• The genetic tests of an individual’s family members.
• The manifestation of a disease or disorder in an individual’s family members (commonly known as family medical history).
• Any request for, or receipt of, genetic services by an individual or their family members.
• Genetic information of a fetus carried by an individual or family member.

Crucially, GINA does not protect information about a disease or disorder that an employee currently has. For example, if an employee is currently symptomatic for a condition, that is generally handled under the Americans with Disabilities Act (ADA) rather than GINA. GINA is focused on the potential for future disease or the genetic predisposition to a condition.

While GINA generally prohibits employers from acquiring genetic information, there are six specific exceptions where an employer might come into possession of such data without violating the law:

• Inadvertent Acquisition: Often called the "water cooler" exception, this occurs when a supervisor overhears an employee talking about a family member's illness or receives it in casual conversation.
• Wellness Programs: Employers may acquire genetic information as part of voluntary health or wellness programs, provided the employee gives prior knowing, voluntary, and written authorization.
• FMLA and Leave Requests: Information may be acquired when an employee provides family medical history to support a request for leave under the Family and Medical Leave Act (FMLA) or similar state laws.
• Publicly Available Sources: Acquisition through commercially and publicly available sources like newspapers or social media (though employers should still avoid searching specifically for genetic data).
• Genetic Monitoring: Used in very specific workplaces to monitor the biological effects of toxic substances in the workplace, subject to strict consent requirements.
• Forensic Laboratories: A very narrow exception for DNA testing for law enforcement purposes or identifying human remains.

From an insurance perspective, GINA violations fall under the definition of a "Wrongful Act" in most standard Employment Practices Liability Insurance policies. EPLI covers the defense costs and settlements or judgments resulting from claims of discrimination, including those based on genetic information.

Underwriters look for specific protocols when assessing a company's GINA exposure:

• Existence of clear written policies prohibiting the collection of genetic data.
• Training for managers on the "water cooler" exception and proper response to disclosed family history.
• Strict adherence to medical record-keeping requirements.
• Safe harbor language in medical certification forms (explicitly telling healthcare providers not to provide genetic information).