Genetic Information Nondiscrimination Act, 2003,(s.1053)
Fritzzzz
5 Posts
I need help to understand just how this affects health care coverage and how the plan administrator can be held personally liable. What constitutes descrimination in this case. Someone out there with a better understanding please inlighten me in lay terms for simpletons.
Comments
The legislation prohibits the use of "genetic information" in employment decisions and access to health insurance and provides the broadest employment discrimination coverage and workplace protections of any discrimination law in the nation's history. It protects individuals based on genetic information such as family medical history — not simply genetic tests — related to their genetic makeup or predisposition to inherited genetic traits, conditions, or illnesses. Geneticists believe that every human being has a minimum of several "genetic markers" that predict predisposition to future inherited traits, conditions, or illnesses that aren't currently manifest — and that may never become manifest, or at least not for many years.
As a practical matter, that uncertainty makes genetic information too remote to base current employment decisions on and makes it a poor indicator of employee performance. Under the legislation, "genetic information" is defined as information about a person's genetic tests, a family member's genetic tests, or "the occurrence of a disease or disorder in family members."
You would be prohibited from requesting or requiring genetic information from employees or applicants and barred from using that information, no matter how it's derived, in making employment decisions, including hiring, firing, compensation, assignments, and promotions. The legislation also would protect employees from unfavorable decisions based on the use of "genetic services," such as genetic counseling.
You would be prohibited from collecting genetic information except in very limited circumstances, such as monitoring the effects of hazardous workplace conditions. Building on existing medical privacy protections under the Health Insurance Portability and Accountability Act of 1996, the genetics legislation also would require you to keep that information confidential.
Health insurers (but not life insurance companies) also would be prohibited from using genetic information derived from tests or family medical histories to deny coverage or set rates. They would be prohibited from requesting genetic tests or collecting genetic information before an individual enrolls in a health insurance plan.
The Senate-passed bill contains significant improvements that the business community negotiated with congressional sponsors over a six-year period. For example, employers' liability would be limited to acts of intentional discrimination, and although remedies would include full "make-whole" relief, including reinstatement with back pay and front pay, damages would be capped at $300,000 (the same as Title VII of the Civil Rights Act of 1964, the ADA, and other federal employment discrimination laws). Earlier versions of the legislation, including the current House bill, provided for unlimited punitive and compensatory damages.
Unlike the earlier versions, which authorized employee lawsuits to be filed directly in federal court, the Senate-passed bill requires that any action or charge first be directed to the U.S. Equal Employment Opportunity Commission (EEOC).
Employers still face exposure. Consider the following example: An employer learns of an employee's genetic predisposition to an inherited condition or illness, such as Huntington's disease or, more commonly, certain forms of cancer. Although the Senate-passed bill provides a "safe harbor" from liability under the bill's "information-gathering" restrictions when the employer receives that information inadvertently — e.g., during "water-cooler conversations" at work — the employer is still at risk if it acts on that information through an unfavorable employment action involving the employee.
How difficult would it be to establish employer liability? As with the other employment discrimination laws, after an employee's prima facie (or initial) showing of the alleged discrimination, the employer bears the burden of proving a legitimate, nondiscriminatory basis for the employment action, and the aggrieved employee may then show that the reason given by the employer was simply a "pretext" for unlawful discrimination. Or in a "mixed motive" case, the employee must only produce evidence that the unlawful conduct (e.g., the use of genetic information) was a "motivating factor" in the employment decision, and the employer then must prove that it would have made the same decision even if it hadn't considered the employee's protected characteristic.
And get this: There's no statute of limitations or legal defense based on the time elapsed from when the employer first learns about the genetic information and the unfavorable employment action. So, for example, the decision to fire or not promote an employee may occur years from the date when his genetic information was first revealed, and he may still file a charge with the EEOC within 180 days after the adverse employment action (the occurrence of the alleged "unlawful employment practice").
Brad Forrister
Director of Publishing
M. Lee Smith Publishers
Would this also prohibit the ever-popular questions we endure on insurance applications, like have any family members had this or that or what age were your parents when they died and why did they die?
Thank you for the information and assistance. It seems life is becoming the science fiction of the 60's and 70's.
Fred
PORK