Jottings By An Employer's Lawyer

Thursday, May 22, 2008

Hello GINA: Our Newest Friend

As an employment law blog, it seems almost mandatory that I post about the newest labor and employment law, which would be the Genetic Information Nondisclosure Act, signed into law by President Bush yesterday. For some reason I can't get excited about it.

Maybe I am still mellow from the two weeks in France, maybe because I thought I was going to be in trial this week and we got bumped to a future setting, maybe it's because it's not effective for 18 months, maybe it's because I don't really see the problem as I am not aware of any employers that are doing genetic testing or using the information, or maybe it's because I think the real impact will be on insurance companies which is more likely to affect me as an insured than as a lawyer representing employers.

Maybe it's knowing that I am going to be barraged for 18 months with doomsday writings about how the newest cause of action is going to mean the end of the world as we know it. Who knows why?

Which probably means I am setting myself up for a big surprise. Just for example
  • the remedies are the same as Title VII which means damages are now capped, but if the damage cap goes away for Title VII, it will for GINA as well;
  • it has an extremely broad definition of genetic information which includes not only genetic test information but "the manifestation of a disease or disorder in family members," which I suppose could include a comment about an employee's mother having breast cancer or father having a heart attack;
  • it prohibits obtaining and disclosing such information, subject to some exceptions, which means at a minimum more confidentiality obligations on employers that are easier to implement than maintain; and
  • the regulations are due a year from now which means that they will be written by a new Administration still finding its way, and from an employer standpoint, a fair chance it will be a less friendly administration than the current one.

So who knows. Fortunately, some of my colleagues at Ogletree Deakins have paid more attention than me and you can see their initial analysis here.

In the meantime, I am not going to get too excited about it until after Memorial Day, and it may well be Memorial Day 2009.

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