A study by the American Management Association determined that 3%of companies reported medical testing for breast or colon cancer, 2% for sickle-cell anemia and 1% for Huntington’s disease—all of which can have genetic links.  In addition, 15% of companies collected family medical histories, which can reveal genetic predispositions for some diseases.  All of these practices may run afoul of provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA), which is set to take effect on November 21, 2009. GINA applies to employers with 15 or more employees (or, more specifically, employers who have employed 15 or more employees for at least 20 workweeks in the current or preceding calendar year).

Summary of the New Law

Broadly speaking, GINA:

• prohibits employers from discriminating against employees and applicants on the basis of "genetic information," whether in the hiring and firing process or in terms of compensation, conditions or privileges of employment;
• prohibits employers from acquiring employees' and applicants' genetic information for most purposes; and
• requires employers to keep any genetic information that they lawfully possess private and confidential.

GINA defines genetic information to include information about a person's genetic tests and the genetic tests of the person's family members, as well as any actual diseases or disorders suffered by the person's family members.  A "family member" is a dependent or anyone who is at least a fourth-degree relative of the person.

The law identifies six narrow exceptions to the ban on an employer's acquisition of an employee's or applicant's genetic information:

• Genetic information may be acquired as part of the certification process for FMLA leave (or leave under similar state or local laws), where an employee is asking for leave to care for a family member with a serious health condition.
• Genetic information (such as family medical history) may be obtained as part of health or genetic services, such as a wellness program, that an employer provides on a voluntary basis.
• Acquisition through commercially and publicly available documents like newspapers is permitted, as long as the employer is not searching those sources with the intent of finding genetic information.
• Acquisition through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace is permitted 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 in 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.
• Where an employer inadvertently requests or acquires family medical history of the employee or family member of the employee, the request does not violate GINA. The EEOC's proposed administrative regulations indicate that this exception includes the "water cooler" scenario, such as where a supervisor inadvertently overhears a conversation between coworkers in which genetic information is discussed, or in a situation where employer receives genetic information in response to a question about the general health of an employee or employee’s family member, or where an employer receives genetic information as part of documentation that an employee submits in support of a request for reasonable accommodation under the Americans with Disabilities Act.

Employers should note that while these exceptions apply to the acquisition of genetic information the ban on the use of the information when making employment decisions is absolute.  Covered employers may not use genetic information in making employment decisions under any circumstances.

If an employer possesses genetic information, it is required to keep that information on separate forms and in medical files that must be treated as confidentially as other medical records, and cannot disclose that information except in limited circumstances.

Employee remedies available under GINA mirror those under other nondiscrimination laws, including anti-retaliation provisions, except that GINA is not an appropriate basis for a disparate impact claim.

Implications for Employers

At this point, it appears that GINA does not represent a sea change in federal antidiscrimination law.  It does, however, present new wrinkles for employers, especially those who request family medical histories as a part of the job application process, those who may maintain medical clinics on-site, or those who require medical exams prior to employees commencing or returning to work.  The full impact of the new law will not be known until the EEOC issues its final regulations (scheduled for publication in early December) and courts have a chance to weigh in on the gray areas that may come to light in specific circumstances.

Action Items for Employers

Covered employers should immediately update their antidiscrimination policies to reflect the prohibition of discrimination on the basis of genetic information and post the EEOC's revised "Equal Employment Opportunity is the Law" poster, which includes information about GINA.