What issues must be considered before instituting genetic testing?
The Genetic Information Nondiscrimination Act of 2008 imposes restrictions on an employer’s acquisition and use of genetic information (see Can your company conduct genetic tests on applicants and employees? at ¶61,359
). However, the law's employment discrimination provisions do not take effect until November 21, 2009. In the meantime, issues surrounding genetic testing will continue to revolve around state law.
Prior to adopting genetic testing, consider the following issues:
Is genetic testing prohibited by state law?
What is the business purpose served by genetic testing?
How will notice and policy be posted?
Will employment in any way be conditioned on the test results?
How will the test results be communicated?
To whom will the test results be communicated?
How will confidentiality be maintained?
How will the applicant (or employee) consent?
What actions will be taken if the applicant/employee refuse to allow the test?
Is there a bona fide occupational qualification?
Under what circumstances will testing be requested such as preemployment testing, or as a result of a workers' compensation claim?
Review all policy and procedures with counsel, management and union representation if required prior to implementation.
State law concerns with genetic testing
Many states regulate genetic testing. Be sure to check State Laws for genetic testing laws that appear in your state(s). These laws often address the following issues:
Can genetic testing be used as a condition of employment?
Can an employer offer employment, pay or benefits to an individual in return for taking a genetic test?
Can an employer test if the employee has consented?
Can an employer test if there is a bona fide occupational qualification?
Can an employer perform genetic testing during a workers' compensation investigation?
Can an employer test to determine an employee's susceptibility or level of exposure to potentially toxic chemicals or substances in the workplace?
Who owns the test results?
What can the test results be used for?
Must the test results be verified?
Does an employer have to provide an employee with notice that DNA analysis was performed or that the information was received?
Does the employer have to make the test results available to the employee's physician?
What kind of notice must the employer give before proceeding with genetic testing or using the test results?
In addition to the above issues, some states address the following situations:
Allowing written consent for the investigation of a workers' compensation claims or for determining susceptibility to potentially toxic chemicals or substances in the workplace if the employer does not terminate the employee or take any other action that adversely affects any term, condition or privilege of the person's employment as a result of the genetic test.
Providing for enforcement through civil actions and the criminal justice system. Applicants and employees may file civil actions against employers who violate the genetic testing ban and can seek actual damages, punitive damages, attorneys' fees and costs.
Prohibiting retaliation against persons, who in good faith, file a complaint or testify in any proceeding involving violation of the genetic testing provisions.
Limiting health insurers' use of genetic testing such as prohibiting governmental entities that provide health care services on a self-insurance basis to use genetic screening or testing information in any way when processing an application for plan coverage or for determining insurability under the plan.
<p>The Genetic Information Nondiscrimination Act of 2008 imposes restrictions on an employer’s acquisition and use of genetic information (see Can your company con</p>
What issues must be considered before instituting genetic testing?
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