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Genetic Nondiscrimination: Is it in Your Company's DNA?

March 2013

By: Ryan M. Helgeson, Esq.

The federal Genetic Information Nondiscrimination Act (GINA) and Illinois' Genetic Information Privacy Act (GIPA) became effective in 2009. Since then, the proliferation of genetic information and the availability of genetic testing have accelerated at an amazing pace. As all of this genetic information enters the healthcare and public arenas, employers must be aware of their responsibilities regarding genetic nondiscrimination to avoid liability.

Who's covered by GINA and GIPA? GINA is a federal law that applies to private employers with 15 or more employees. GIPA is a state law that applies to all private employers in Illinois. GINA and GIPA prohibit employers from making employment decisions based on genetic information and restrict access to and disclosure of genetic information.

What is "Genetic Information?" Under GINA and GIPA, "genetic information" includes: (a) information about an individual's genetic tests; (b) information about the genetic tests of family members; (c) family medical history; (d) requests for genetic services by an individual or family member; and (e) genetic information about a fetus carried by an individual or family member.

What actions are prohibited by GINA and GIPA? Employers are prohibited from using genetic information in making employment decisions. An employer may never use genetic information in making employment decisions because the possibility that someone may develop a disease or disorder in the future has nothing to do with his or her current ability to perform a job.

Additionally, employers may not use genetic information to make decisions concerning health benefits. For example, an employer that fires an employee because of anticipated high health claims based on genetic information would violate GINA and GIPA because health benefits are considered part of the compensation and privileges of employment.

Employers are generally prohibited from requesting, requiring, or purchasing an applicant's or employee's genetic information, even if it is never used. Thus, although an employer may conduct medical examinations after making a job offer or during employment, the examination may not include collection of family medical history. There are some narrow exceptions to this rule (such as part of FMLA compliance). Any genetic information in the employer's possession must be treated with the same confidentiality as other medical information.

What should employers do now? Violations of GINA and GIPA can result in substantial fines. Accordingly, employers should take stock now to ensure compliance with the laws' requirements. Employers should: (a) confirm that their EEO policies include prohibition against discrimination, harassment, and retaliation based on genetic information; (b) review personnel files and place information covered by GINA and GIPA in separate, confidential files; (c) discontinue general requests for genetic information, in particular requests that seek family medical histories; and (d) train supervisors and managers to understand their obligations under GINA and GIPA.

For questions about the information contained above or for assistance navigating GINA and GIPA regulations, please contact Attorney Ryan M. Helgeson at (630) 377-1554 or via email at ryhelgeson@wesselssherman.com.