GINA's Limits or Something More? The Need for Greater Protection of Employee Health-Related Information

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Notes

1 . They explain that “[p]osted information can proliferate quickly and endlessly beyond the controls of privacy settings through active re-posting (such as begins ‘viral’ sensations), passive surveillance, or malevolent hacking.”

2 . Pub. L. No. 110-233, 122 Stat. 881, 110th Cong., 2d Sess. (May 21, 2008); 42 U.S.C. § 2000ff (hereinafter GINA).

3 . GINA at § 201(4)(A)(i)-(iii) (2008) (defining “genetic information”).

4 . GINA at § 202(b).

5 . Lee and Borgelt (2014); also see GINA, § 202(b)(1) (providing an exception for the so-called “water cooler problem”).

6 . GINA, § 202(a).

7 . See 29 C.F.R. § 1635.3 (excluding spouses from GINA's definition of “family member”); Poore v. Peterbilt of Bristol, LLC, 852 F. Supp. 2d 727 (W.D. Va. 2012) (finding that the plaintiff's wife's diagnosis of multiple sclerosis was not “genetic information” for the purposes of GINA).

8 . See Poore, 852 F. Supp. 2d; see also Allen v. Verizon Wireless, 2013 U.S. Dist. Lexis 80228 (D. Conn. 2012).

9 . Research shows that many discriminators may not be consciously aware that they are discriminating. See Krieger (1995) and Jolls and Sunstein (2006).

10 . Pursuant to the Affordable Care Act (ACA), employers with 50 or more employees must offer affordable coverage of a minimum value to 95% of their full-time employees. See 26 U.S.C. § 4980H. The employer mandate actually consists of two separate tax penalties: one for failing to offer insurance and one for offering unaffordable insurance.

11 . It appears that employers are already screening for employee health in response to the concerns over the costs imposed by health-care reform. See Roberts (2014) and Roberts (in press-a).

12 . More than once, I have called for greater legal regulation of employers’ abilities to screen their employees for health. See Roberts (2014) and Roberts (in press-a).