Most of the media attention to the recently enacted Genetic Information Non-Discrimination Act (GINA) has focused on the main thrust of the legislation -- its prohibition against discrimination on the basis of genetic traits or testing.  As previously noted here at Workplace Horizons, however, the law also contains a seemingly disjointed provision increasing penalties against employers under the Fair Labor Standards Act (FLSA) for child labor violations.  Legal commentators and media outlets are beginning to highlight this provision as well.

CCH notes:

The Genetic Information Nondiscrimination Act of 2008 (GINA) (H.R. 493), signed by President Bush on May 21, included provisions that alter civil penalties for child labor violations. As enacted, a $50,000 penalty may now be assessed with regard to each violation that causes the death or serious injury of any employee under the age of 18 years. This penalty may be doubled where the violation is a repeated or willful violation.

In determining the amount of any penalty, the amendment now provides that the appropriateness of the penalty to the size of the business of the person charged and the gravity of the violation will be considered.

G. Neil's Training Time blog includes a post titled, "Five effective safety training tips for teen employees," which states:

Properly training employees is the number one defense to warding off workplace injuries. Especially during the summer months when more teenagers are employed, it is crucial to have all employees fully trained in safety procedures.

Employers must be completely aware of all of GINA's provisions, so that they may properly adjust relevant workplace policies and ensure compliance with the law.  If you have any questions about the new law, check out the Workplace Horizions coverage, or contact one of our attorneys for further assistance.

Genetic testing can identify predisposition to a wide range of diseases and conditions, allowing individuals to take action with respect to potential medical conditions early, when preventive measures and treatment are most likely to succeed. However, many individuals have shied away from utilizing genetic tests for fear that they could be subject to discrimination on the basis of the results. In a move aimed at reducing such fears, Congress recently enacted the Genetic Information Nondiscrimination Act by overwhelming majorities in both the House and the Senate. President Bush signed the Act on May 21, 2008, and the new law will go into effect 18 months after that date.

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In last week’s Sunday New York Times, a prominent medical researcher asserts that the failure of Congress to pass the Genetic Information Non-discrimination Act (GINA) could hamper advances in preventative medicine.

From the article, entitled “Insurance Fears Lead Many to Shun DNA Tests”:

But thousands of people accustomed to a health insurance system in which known risks carry financial penalties are drawing their own conclusions about how a genetic predisposition to disease is likely to be regarded.

As a result, the ability to more effectively prevent and treat genetic disease is faltering even as the means to identify risks people are born with are improving.

“It’s pretty clear that the public is afraid of taking advantage of genetic testing,” said Dr. Francis S. Collins, director of the National Human Genome Research Institute at the National Institutes of Health . “If that continues, the future of medicine that we would all like to see happen stands the chance of being dead on arrival.”

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The website GovernmentExecutive.com reports that the omnibus spending bill passed the House of Monday without the Genetic Information Nondiscrimination Act and some of the other labor and employment law provisions that were considered for inclusion.

A host of matters unrelated to appropriations surfaced in the final negotiations, in some cases only getting resolved in the final hours before the bill was filed early Monday morning.

For example, Democrats backed off an attempt to add House-passed legislation, backed by GOP moderates like Sen. Olympia Snowe of Maine, to bar employers from discriminating based on an individual's genetic information.

Democrats also failed to include a provision that would have blocked enforcement of the Department of Labor’s Revised LM-30 rule. 

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Representative Louise Slaughter (D-NY) writes today on Daily KOS that efforts to include the Genetic Information Nondiscrimination Act of 2007 in the year-end budget bill are in danger of being thwarted. The bill passed the House by a vote of 420 - 3 in April of this year. But Senator Tom Coburn (R-OK) has reportedly placed a hold on the bill , causing it to be stalled in the Senate.

Congresswoman Slaughter writes:

We were able to circumvent Senator Coburn’s hold by getting GINA into the omnibus appropriations bill scheduled to be voted on next week by the full House and Senate.

However, in the negotiations right now and throughout the weekend, Senator Mitch McConnell is trying to remove the bill so it will not get an up or down vote next week, and will continue to be held hostage by Senator Tom Coburn and Senate rules.

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Professor George M. Church of Harvard Medical School said last week that personal genetic testing will soon be available at a cost of about $1,000.  Professor Church, head of the Personal Genome Project, asserts that once armed with information about an individual’s susceptibility to diseases, doctors will be able to “advise lifestyle changes or prescribe medications to stave off sickness.”

Of course, critics are concerned about other uses of genetic information and urge passage of the Genetic Information Nondiscrimination Act.  Beth Givens, director of the Privacy Rights Clearinghouse, opined:

Insurance companies are looking for pre-existing conditions, and potential conditions, in order to make insurance decisions, either to reject insurance applications, or to increase insurance premiums.

According to the National Conference of State Legislatures, 34 states already prohibit genetic discrimination in employment.

Additional Reading: 

• Genomes for All, by George Church, Scientific American, January 2006

WATCH LIST:  Genetic Information Nondiscrimination Act.

On January 30, 2007, the House Health, Education, Labor and Pensions Subcommittee held a hearing entitled: "Protecting Workers from Genetic Discrimination."    Details, including streaming video and witness statements are available HERE.