H&W: What is the GINA “Firewall” and Will It Protect You?

Question of the Week from Thomson Reuters

QUESTION: We’ve heard that there is a “firewall” between GINA’s health insurance and employment nondiscrimination requirements. What is it? Will it protect our company from liability for mishandled genetic information?

ANSWER: The EEOC’s GINA regulations include a “firewall” that may protect employers from liability for plan or insurer actions in some instances. By way of background, the Genetic Information Nondiscrimination Act (GINA) prohibits discrimination on the basis of genetic information in health insurance and in employment. The “firewall” is designed to ensure that employers are not liable under both the insurance and the employment provisions of GINA.

GINA’s health insurance rules are found in Title I and generally apply to group health plans, group health plan insurers, and insurers in the individual market. These rules prohibit plans and insurers from adjusting group premiums on the basis of genetic information, requiring individuals or their family members to undergo genetic testing, or requesting genetic information for underwriting purposes.

In contrast, GINA’s employment rules, which are found in Title II, generally apply to employers. These rules prohibit employers from using genetic information in employment decision making and restrict employers from requesting, requiring, or purchasing genetic information. Employers are also prohibited from discriminating against employees with respect to the compensation, terms, conditions, or privileges of employment on the basis of “genetic information.” This prohibition is broad enough to encompass discrimination with respect to the terms and conditions of group health plans sponsored and maintained by employers. However, EEOC regulations attempt to create a “firewall” between the two GINA titles so that health plan provisions or actions are addressed and remedied solely through the Title I health insurance rules, and employer actions are remedied exclusively through the employment provisions in Title II. The “firewall” is designed to prevent the same entity from facing liability under both Title I and Title II.

Thus, employers will not face liability under Title I for plan or insurer provisions or actions. For example, discrimination by a health plan or health plan insurer with respect to health plan eligibility, benefits, or premiums based on genetic information is subject to enforcement under Title I exclusively. But if an employer fires an employee because of anticipated high health claims based on genetic information, that violation is enforceable under Title II, even though it involves access to health benefits. Note that some actions may result in violations of both Title I and Title II. For example, if an employer contracts with a health plan insurer to request genetic information, the employer will violate Title II, and the insurer may be in violation of Title I. Similarly, if an employer amends its plan to require individuals to undergo genetic tests, then the employer has violated Title II, and there may be a Title I violation when the plan implements the requirement.

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