What consequences does a business face if it fails to comply with GINA?
If a group health plan or health insurance issuer is out of compliance, there is a $100 penalty per beneficiary for each day of noncompliance. Continuous failure can result in a penalty of $2,500 to $15,000. Penalties will not be assessed if the violation is not willfully negligent and if noncompliance is discovered and corrected within 30 days.
How does the legislation change the way hiring, firing and promotion decisions should be made?
GINA requirements apply to private, state and local government employers with 15 or more employees, and labor unions, employment agencies, joint labor-management training programs, Congress and federal executive branch agencies. Those employers may not refuse to hire and may not terminate or discriminate against or adversely affect any employee on the basis of genetic information. There are some circumstances, however, in which an employer may collect genetic information:
- Incidental to requesting or requiring an individual’s medical history
- As part of a wellness program where prior written consent is obtained and disclosure of the genetic information is strictly limited
- In compliance with the Family and Medical Leave Act certification requirements
- When purchasing commercial and publicly available documents that include genetic information, excluding medical databases and court records
- When monitoring the biological effects of toxic substances in the workplace where the individual was informed and has given written consent excluding monitoring required by law
- When the employer is a forensic laboratory conducting DNA analysis for law enforcement purposes
How can a business ensure it is compliant?
Employers should educate employees by sharing GINA background information. Consult with your benefits adviser. Review company forms and processes, and update those that are noncompliant. Implement polices that will prevent inadvertent release of genetic information, and if information has already been voluntarily released, remove it from employee files and consider updating your employee handbook to reflect these new regulations.
Most important, review your insurance program to ensure the plan does not ask questions that may be considered genetic-related. Make sure your benefits manager and/or consultant negotiates nondiscriminatory health coverage for all employees. Finally, GINA does affect employer wellness programs, so review all wellness and disease management plans to determine how health risk assessments are used and what information is requested, remove any financial incentives or penalties if genetic information is collected in the assessments and remove any genetic information from the assessment if financial incentives or penalties are offered.
Sally Stephens is president of Spectrum Health Systems. Reach her at (317) 573-7600 or [email protected].