Can your company conduct genetic tests on applicants and employees?

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. After unsuccessful efforts in the 104th, 105th, 106th and 107th Congresses, the Genetic Information Nondisclosure Act of 2008 (GINA) was enacted. Designed to encourage Americans to take advantage of genetic testing without fear of discrimination, the law prohibits employers from acquiring individuals' genetic information or using it when making hiring, firing, job placement or promotion decisions. It also makes it illegal for group health plans and health insurers to deny coverage to healthy individuals or charge them higher premiums based solely on a genetic predisposition to a disease. GINA's health insurance provisions take effect on May 21, 2009, while the employment provisions take effect on November 21, 2009.

GINA's limited exceptions to its ban on the acquisition of genetic information include the following situations:

• Inadvertent requests for family medical history.

• In connection with employer-provided health or genetic services (including wellness) and with written consent where only the person receiving services and the health care professional or genetic counselor receive individually identifiable information about the results and the identifiable information is only available for the purpose of services and is not disclosed to the employer except in aggregate terms that do not disclose identities.

• Family medical history is requested for certification of family and medical leave under federal or state family and medical leave laws.

• Purchase of publicly available commercial documents (newspapers, magazines, periodicals, book but not medical databases or court records) that include family medical history.

• Genetic monitoring of the biological effects of toxic substances with written notice and consent (or if the genetic monitoring is required by federal or state law), the employee is informed of the results, the monitoring complies with any federal and state genetic monitoring requirements, and the employer receives the results only in aggregate terms that do not disclose identities.

• Use of DNA identification markers for quality control/detection of contamination when conducting DNA analysis for law enforcement or identification of human remains.

Genetic information obtained under one of these exceptions cannot be used in a discriminatory manner.

Other Laws

Other federal legislation is 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. For more information, see:

• Why use genetic tests (¶62,500 )?

• What issues must be considered before implementing genetic testing (¶62,510 )?

• Sample policy against the use of genetic information (¶62,520 )