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The Department of Labor (DOL), in addition to the Department of the Treasury (IRS) and the Department of Health and Human Services (HHS), have issued Interim Final Rules for the implementation of Sections 101 to 103 of the Genetic Information Nondiscrimination Act (GINA). These interim final rules will take effect on December 7, 2009, with final comments due to any of the agency offices by January 5, 2010.

Title I of The Genetic Information Nondiscrimination Act (GINA) establishes rules that generally prohibit a group health plan and a health insurance issuer in the group market as well as issuers in the individual health insurance market from:

• Increasing the group premium or contribution amounts based on genetic information
• Requesting or requiring an individual or family member to undergo a genetic test; and
• Requesting, requiring or purchasing genetic information prior to or in connection with enrollment, or at any time for underwriting purposes.

“Genetic Information” not only includes tests that determine variations in a person’s DNA, but also information regarding the family history of a particular disease. GINA contains a statutory definition of genetic information that differs from the definition in the 2004 final HIPAA portability regulations. These interim final regulations revise the existing regulations’ definition of genetic information to conform to the new statutory definition. The new regulations also add definitions to aid in the implementation of the new legislation.

How will these new rules affect employers and employees, particularly in the use of incentives or rewards issued in connection with workplace wellness programs? Will the rules prohibit setting or raising premiums based on already manifested diseases? What penalties ensue in the case of violations of GINA? Lawyers experienced in employee benefits administration will discuss these and other issues raised by this first major civil rights legislation of the 21st century.

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