Legal Notes . . .
In continuation of our monthly service to our existing clients, below is a short synopsis of Genetic Information Discrimination. It is our hope that you will find this informative. Please feel free to share this with family or friends who you think would be interested in the topic.
GENETIC INFORMATION DISCRIMINATION
Daniel J. Fruth, Esq., Stebelton, Aranda and Snider, L.P.A.
djf@sas-lawfirm.com
With little fanfare, a new law affecting the workplace took effect on November 21, 2009. Even though the law will soon be two years old, few employers or workers are aware of the Genetic Information Nondiscrimination Act of 2008 (GINA). At its core, GINA makes it illegal to discriminate against employees, or those applying for work, because of genetic information. Title II of GINA prohibits the use of genetic information in making employment decisions, restricts employers and other covered entities from requesting, requiring or purchasing genetic information, and strictly limits its disclosure.
Perhaps the most fundamental piece of information to understand is the actual definition of "genetic information" under GINA. Genetic information includes any information about a person's genetic tests or those of a person's family members. This does include family medical histories that would reveal disease or disorders in your family members. The rationale behind including the family medical history within GINA is that it can be used to evaluate whether someone has an increased likelihood of developing a future disease. The definition of genetic information also includes requests for genetic services, or the participation in clinical research that includes genetic services by a person or their family member, and the genetic information of a fetus or any embryo.
Generally speaking, genetic information is forbidden to be a factor when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. An employer may not harass a person based upon their genetic information and may not retaliate against an applicant or employee for filing a charge of discrimination or otherwise opposing discrimination based on genetic information. According to the Equal Employment Opportunity Commission, "An employer may never use genetic information to make an employment decision because genetic information doesn't tell the employer anything about someone's current ability to work."
As with most discrimination laws, there do exist some notable exceptions to the general rule. The EEOC has summarized those exceptions as follows:
- Genetic information (such as family medical history) may be obtained as part of health or genetic services, including wellness programs, offered by the employer on a voluntary basis, if certain specific requirements are met.
- Family medical history may be acquired as part of the certification process for FMLA leave (or leave under similar state or local laws or pursuant to an employer policy), where an employee is asking for leave to care for a family member with a serious health condition.
- Genetic information may be acquired through commercially and publicly available documents like newspapers, as long as the employer is not searching those sources with the intent of finding genetic information or accessing sources from which they are likely to acquire genetic information (as websites and on-line discussion groups that focus on issues such as genetic testing of individuals and genetic discrimination).
- Genetic information may be acquired through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace where the monitoring is required by law or, under carefully defined conditions, where the program is voluntary.
- Acquisition of genetic information of employees by employers who engage in DNA testing for law enforcement purposes as a forensic lab or for purposes of human remains identification is permitted, but the genetic information may only be used for analysis of DNA markers for quality control to detect sample contamination.
Lastly, if employers do lawfully possess genetic information, they must be sure to keep it confidential and in a separate medical file. Generally speaking, absent a court order, an employer or other covered entity should not disclose genetic information to anybody. The law in this area of discrimination remains quite undeveloped because of GINA's recent implementation. When in doubt, employers should simply error on the side of non-disclosure.
