Can a Company Conduct Genetic Tests?

Genetic tests can help an employer determine whether applicants or employees are sensitive to certain chemicals or environmental conditions that may be present in the workplace. They can also identify which individuals are likely to develop medical conditions in the future by locating chromosome abnormalities.

While genetic monitoring over extended periods can be useful in identifying hazards in the workplace, there is great potential for genetic testing to be misused. Federal legislation to regulate genetic testing has been introduced in the 104th, 105th, 106th and 107th Congresses, but comprehensive federal legislation has yet to be enacted.

Federal legislation is, however, implicated to a limited degree with genetic testing.

The Health Insurance Portability and Accountability Act of 1996 prohibits group health plans from using any health status-related factor, including genetic information, as a basis for denying or limiting eligibility for coverage or for charging an individual more for coverage.

The Americans with Disabilities Act prohibits medical examinations before an offer of employment is made and restricts the use of post-offer medical exams. The EEOC takes the position that employers who discriminate against individuals on the basis of genetic information violate the ADA by regarding those individuals as having impairments that substantially limit a major life activity.

Title VII of the Civil Rights Act of 1964 applies if an employer engages in discrimination based on a genetic trait that is substantially related to a race or ethnic group or to an individual's sex.

State law concerns. Employee privacy rights are a major concern when considering implementation of a genetic testing program, and state legislatures have been active in restricting the use of genetic testing.