New Law Prohibiting Genetic Discrimination Raises New Risks For Employers

The newly-enacted Genetic Information Nondiscrimination Act of 2008 ("GINA") prohibits employers and health insurance companies from discriminating on the basis of genetic information.

The employment provisions of GINA (Title II) prohibit an employer from discriminating against an employee with respect to hiring, termination of employment, compensation, or any other term or condition of employment, "because of genetic information with respect to the employee." The phrase "genetic information" is defined to mean information about an individual's genetic tests, the genetic tests of an individual's family member, and the manifestation of a disease or disorder in an individual's family member. A "genetic test" under GINA is generally defined to mean "an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotype, mutations, or chromosomal changes."

GINA also prohibits an employer from requesting, requiring or purchasing the genetic information of an employee, or an employee's family member, except in limited circumstances. Employers may only obtain genetic information under certain specified circumstances, such as where (1) health or genetic services are offered by the employer, (2) the employer requires family medical history to comply with the Family and Medical Leave Act ("FMLA"), or (3) the information is used for monitoring toxic substances in the workplace. Another exception to liability applies if the employer "inadvertently requests or requires" family medical history of the employee or his or her family member. Generally, employers must obtain employee consent to acquire genetic information, unless the collection or use of the information is required by law. Employers that obtain any genetic information must maintain the information on separate forms in separate medical files, and treat the information as a confidential medical record.

GINA's broad terms raise concerns and potential risks for employers. While the law provides an exception for information collected in the context of FMLA leave, there is no comparable exception for genetic information obtained during the interactive process required by the Americans with Disabilities Act when an employee requests an accommodation for a disability. Furthermore, a company could face liability if an employee volunteers information about his or her genetic-based disease or a manager learns, while visiting an employee in the hospital, that the employee has a genetic disorder.

GINA creates a new federal cause of action for employment discrimination based upon genetic information that follows the enforcement scheme and remedies of Title VII. Employers should be aware of this additional litigation risk when taking any personnel action against an employee about whom they have obtained genetic information. Employers should carefully control what information is collected from employees, and should strictly limit access to such information.

GINA's employment provisions will take effect in 18 months. The EEOC will issue regulations regarding GINA within 12 months. GINA does not preempt the numerous existing state genetic antidiscrimination laws, so employers should be careful to ensure that their practices comply with both federal and applicable state requirements.