POSTED BY RICHARD D. TUSCHMAN ON AUGUST 22, 2012
Time magazine ran a story last week on a company called 23andMe that is seeking FDA approval for a panel of genetic tests that will cost consumers only $299. According to 23andMe's website, all that's required to complete the tests is for the consumer to order a kit, spit in a test tube, and mail the test tube back to the company. Two to three weeks later, the consumer gets the results, which include an assessment of inherited traits, genealogy and possible congenital risk factors for certain diseases. The company appears to be for real –Google, Genentech, and other major players are among its investors.
So what will happen in the workplace when genetic testing becomes commonplace? Title II of the Genetic Information Nondiscrimination Act (GINA) restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits the disclosure of genetic information. Presumably, the vast majority of employers will attempt to comply with Title II of GINA.
But GINA does not prevent employees from freely sharing their genetic information with co-workers and supervisors. Suppose a perfectly healthy employee discloses to her supervisor that she has a genetic mutation that makes it likely she will contract Parkinson's Disease. That employee is now in a "protected class"; GINA prohibits discrimination against the employee based on her genetic information. Suppose the supervisor takes an adverse employment action against the employee after the employee's disclosure. The question can be raised, was the decision taken for legitimate, nondiscriminatory reasons, or was the supervisor concerned about the employee's contracting Parkinson's and becoming disabled? In much the same way that employment actions taken after complaints of discrimination are now subject to scrutiny under Title VII, employment actions taken after an employee's voluntary disclosure of genetic information will be subject to scrutiny under GINA. And because of that, it can be expected that some employees will voluntarily disclose their genetic information in an attempt to protect their jobs. If that happens, GINA may be very popular indeed.
POSTED BY KAREN M. BUESING AND SCOTT T. SILVERMAN ON DECEMBER 14, 2010
Yet another law for employers to worry about!
The U.S. Equal Employment Opportunity Commission (EEOC) has issued final regulations implementing the employment provisions of the Genetic Information Nondiscrimination Act (GINA). GINA applies to all employers covered by Title VII and generally prohibits discrimination and harassment in the terms and conditions of employment, including health benefits, on the basis of genetic information, as well as retaliation for opposing, or making a charge of, such discrimination or harassment. It also restricts employers from acquiring, requesting, requiring or purchasing genetic information, with six limited exceptions. It also limits disclosure of genetic information, also with six limited exceptions, and allows employers to keep genetic information in the same confidential file as medical information under the ADA.
Genetic information includes information about individuals' genetic tests and the tests of their family members; family medical history; requests for and receipt of genetic services by an individual or a family member; and genetic information about a fetus carried by an individual or family member or of an embryo legally held by the individual or family member using assisted reproductive technology. However, GINA would not come into play where the employee has a current condition that has a genetic basis, such as cancer, because GINA is concerned about discrimination occurring due to a perceived disposition to becoming ill in the future. Of course, the ADA may still be applicable in such a situation.
The final regulations provide examples of what are and are not genetic tests; more fully explain GINA's prohibition against requesting, requiring, or purchasing genetic information; provide model language employers can use when requesting medical information from employees to avoid acquiring genetic information; and describe how GINA applies to genetic information obtained via electronic media, including websites and social networking sites.
Employers are strongly advised to review these new regulations and work with counsel to update their policies to incorporate these new regulations.