Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Genetic tests are available today for more than 1000 diseases and counting. Individuals can use genetic testing to better identify and manage their risk of developing specific medical conditions before those conditions manifest themselves. For better or worse, such information may also have value to employers desiring to know whether an employee (or candidate) may be genetically inclined to ailments like carpel-tunnel syndrome or long-term illness from exposure to workplace toxins. However, given the fact that 84% of Americans mistrust their employers when it comes to having access to their genetic information, the data are not easy to use. To be sure, the controversy over genetic screening in the workplace is palpable and raises questions such as: Can (or should) genetic information be used in making employment decisions? What qualifies as sensitive “genetic information”? With what level of care must an employer handle genetic information already in its possession?
While state law may resolve one or more of these questions in nearly 40 states, no federal legislation exists on the topic. That is likely to change soon. In April, the House passed the Genetic Information Nondiscrimination Act (“GINA”) of 2007 (H.R. 493) by a vote of 420-3, and the Senate is nearly certain to follow suit on its companion legislation (S. 358). With President Bush having already endorsed GINA, the debate is turning to what day-to-day effects GINA would have on the workplace. As it stands, GINA would: (1) prohibit employers from purposely acquiring genetic information about employees; (2) prohibit employers from making employment decisions based on an employee’s genetic information or use of genetic testing services; and (3) compel employers to treat genetic information in their possession as “health information” under HIPAA and the rules governing “confidential medical records” under the ADA.
So what may be the lurking pitfalls for compliance with GINA? Apart from adding another string to the web of medical privacy laws, employers should be aware of the proverbial “fine print” . The Senate version of GINA defines “genetic information” as much more than just DNA tests or chromosome analyses. Rather, “genetic information” extends to include the simple “occurrence of a disease or disorder” in the spouse, children, or any blood relative of the employee or his or her child or spouse. The House version of the Act appears only slightly less expansive. What documents might your company have that encompasses information under such a sweeping definition? Moreover, while genetic screening may soon raise issues of federal compliance, it is not apparent that GINA would have preemptive effect over state law. Now might be a good time to confirm compliance with (or become aware of) your state’s laws on genetic screening.