Just recently the Genetic Information Nondiscrimination Act (2008) went into effect. There is the potential to use genetic information to discriminate in employment.
The Genetic Information Nondiscrimination Act (GINA) gives the nod to the fact that advances in genetics is crucial, indeed critical, to medical progress. Unfortunately, these advances held the potential to have the information misused against employees. In order to avoid this possibility, Congress passed GINA to ostensibly protect genetic information of workers and ban employment discrimination that may be based on genetic information.
What does genetic information include? Typically, it is a sign of the possible manifestation of a disease or disorder that may run in an employee’s family. Genetic testing usually takes place in clinical research or other areas that examine human RNA, DNA, proteins, chromosomes and/or metabolites which detect chromosomal changes, mutations or genotypes.
Just to avoid some confusion here, according to the Act, it is against the law for employers to fire, not hire or discriminate in other ways against a worker. This would apply to circumstances dealing with pay and the conditions and terms or privileges of their employment based on genetic information. It is also against the law for employers to refuse workers opportunities or use genetic information against them to affect their employment status.
It would seem logical that GINA would also make it illegal for an employer to ask or demand genetic information from an employee or their families. There are, however, some exceptions to the rules, and this is certainly an area you will want to speak to an experienced attorney about if you find yourself in the position of having been requested to provide genetic information.
The exception to the rules come into play when an employer – by accident – asks or requires a family medical history; when a company offers health or genetic services as a component of a wellness program and worker’s provide their written consent; when an employer asks for or requires a family medical history from workers under the FMLA; where the company buys material publically available that includes a worker’s family medical records; and where the genetic information is used for monitoring biological effects of toxic substances in the workplace.
It may seem like there are just too many exceptions that an employer could use to get the prohibited information and if that is the case, then what was the point of the Act in the first place? Fair question and a valid one too. This Act does address this by saying that even if the employer gets genetic information under an exception, they are still prohibited from using it against a worker for any reason.
While there are other safeguards built into this Act that are intended to protect workers whose employers to happen to get their genetic information, it still raises questions about violation of secrecy and privacy. If the employee happens to be dead set against that kind of information being at the hands of their employer and they say so, the company may not retaliate against them.
As you can see, this is a new area and largely untried and untested in the legal arena. It will be interesting to see how the rules are interpreted, if a case that’s filed under a breach of the provisions of this Act makes it to court.