Genetic Characteristics and Information

Genetic Characteristics and Information

Both state and federal law prohibit the use of genetic information in making employment decisions. California also provides protection from discrimination based on genetic characteristics.

Genetic Information Discrimination Prohibited. The federal Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits the use of genetic information, including family history, to make decisions about health insurance and employment, and restricts the acquisition and disclosure of genetic information.

Title I of (GINA) includes provisions that generally prohibit group health plans and health insurance issuers from discriminating based on genetic information.

Under Title II of GINA, it is illegal to discriminate against employees or applicants because of genetic information. Title II of GINA prohibits using genetic information to make employment decisions, restricts employers and other entities from obtaining genetic information and strictly limits disclosing genetic information.

Congress enacted GINA in response to concerns that individuals would decline to take advantage of the increasing availability of genetic testing out of concern that they could lose their jobs or health insurance if tests revealed adverse information.

GINA covers private employers with 15 or more employees. GINA generally prohibits employers from requesting, requiring or purchasing an applicant’s or employee’s genetic information, even if the employer never uses that information. Title II of GINA prohibits employment discrimination based on genetic information and restricts the acquisition and disclosure of genetic information.

The U.S. Equal Employment Opportunity Commission (EEOC) issued final regulations implementing the employment provisions (Title II) of the Genetic Information Nondiscrimination Act.

Genetic Characteristics Discrimination Prohibited. California law also prohibits discrimination based on a person’s genetic characteristics. A genetic characteristic means either of the following:

Any scientifically or medically identifiable gene, chromosome or a combination or alteration thereof, or inherited characteristics that are:
Known to cause a disease or disorder in a person or his/her offspring.
Determined to be associated with a statistically increased risk of developing a disease or disorder.
Not presently associated with any symptoms of any disease or disorder.
Inherited characteristics that may derive from the individual or family member that are:
Known to be a cause of a disease or disorder in a person or his/her offspring.
Determined to be associated with a statistically increased risk of development of a disease or disorder.
Not presently associated with any symptoms of any disease or disorder.

In addition, if you are covered by FEHA, you cannot directly or indirectly subject an employee, applicant or any other person to a test for the presence of a genetic characteristic.

Defined. According to the EEOC, “genetic information” includes:

Information on an individual’s genetic tests
Information on the genetic tests of a family member
Family medical history
Requests for and receipt of genetic services by an individual or a family member
Genetic information on a fetus carried by an individual or family member
Genetic information on an embryo legally held by the individual or family member using assisted reproductive technology

The EEOC published detailed information on GINA and its final regulations, including one question and answer document aimed at helping small businesses comply with the law. You will also find information on the interaction between GINA and employee wellness programs. For more information, visit the EEOC website.

According to the EEOC, an employer may not ask for family medical history as part of a medical examination of a job applicant or employee. Although an employer may conduct medical examinations after making a job offer or during employment as permitted by the Americans with Disabilities Act (ADA), the examination may not include collection of family medical history. An employer must tell its health care providers not to collect genetic information as part of an employment-related medical exam, and, if it finds out that family medical histories are being collected, the employer must take measures within its control (including not using the services of that health care provider) to prevent this from happening in the future. The EEOC has been bringing enforcement actions against employers requesting family medical histories in post offer, pre-employment physicals.

Under the federal regulations, there are six narrow exceptions to the rule that an employer may not request, require, or purchase genetic information about an applicant or employee:

Where the information is acquired inadvertently
As part of health or genetic services, including wellness programs, provided on a voluntary basis
In the form of family medical history, to comply with the certification requirements of the Family and Medical Leave Act, state or local leave laws, or certain employer leave policies
When the information comes from sources that are commercially and publicly available, such as newspapers, books, magazines, and even electronic sources
As part of genetic monitoring that is either required by law or provided on a voluntary basis
By employers who conduct DNA testing for law enforcement purposes as a forensic lab, or for human remains identification

If you are concerned about how this federal law may impact your organization — especially if you maintain offices outside of California — contact legal counsel.

An employer must keep any genetic information it does acquire about an applicant or employee confidential, subject to certain very narrow exceptions.

California also protects employees from discrimination on the basis of genetic information. State legislation clarified the extent of the protection for genetic information in California. The Legislature noted that the range of protection provided by the federal GINA is not complete for California. The legislation:

Amended the Fair Employment and Housing Act (FEHA) (Govt. Code sec. 12940) to state that employers are prohibited from discriminating against employees on the basis of genetic information
Amended the Unruh Civil Rights Act, which generally prohibits business establishments from discriminating on specified bases, to include genetic information as one protected basis
Expanded the bases upon which a health facility may not discriminate in the provision of emergency services

The anti-discrimination provisions of FEHA apply to employers who employ five or more persons, compared with the federal scope that is limited to employers with 15 or more employees.

Under the state law, genetic information means information about any of the following:

The individual’s genetic tests
The genetic tests of family members of the individual
The manifestation of a disease or disorder in family members of the individual

Genetic information includes: any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual. Genetic information does not include information about the sex or age of any individual.

This prohibition against discrimination on the basis of genetic information is in addition to the existing state law prohibition against discrimination based on a medical condition, including genetic characteristic.