Editor’s Note: Jennifer Parser and Kyle Still are members of the Labor and Employment Practice Group of Ward and Smith, P.A. TechLaw is a regular feature in WRAL Local Tech Wire.

By Jennifer G. Parser and Kyle R. Still, Ward and Smith, P.A.

Decoding the human genome has advanced early detection, diagnosis, and prevention of disease. Congress, however, has determined that there is a danger that this knowledge also can be used to discriminate in both health insurance and employment. With the passage of the Genetic Information Nondiscrimination Act of 2008 ("GINA"), Congress sought to establish a uniform national standard to protect employees from discrimination and the potential for discrimination, while still allowing them to take advantage of the latest advances in genetic testing, technologies, research, and treatment. This standard is now set to take effect on November 21, 2009.

What is Genetic Information?

One of the most crucial issues debated in Congress was how broadly to define the term "genetic information." Congress decided that "genetic information" would include not only the results of genetic tests, but also information about an individual’s family medical history, including the manifestation of a disease or disorder in, and genetic test results of, a family member. Family members include dependents and relatives of the employee from the first to the fourth degree of kinship.

GINA’s Provisions Applicable to Employers

Under GINA, an employer may not discriminate in the terms or conditions of employment based upon genetic information. In addition, an employer may not retaliate against an employee who opposes genetic discrimination. Finally, except as mentioned below, employers generally are barred from collecting genetic information about an employee or an employee’s family member, whether by request, mandatory disclosure, or purchase from a third party.

Forbidden discrimination includes failing to hire or discharging an employee or otherwise discriminating against an employee with respect to compensation, terms, conditions, or privileges of employment based on that employee’s, or prospective employee’s, genetic information. An employer may not use genetic information to limit, segregate, or classify employees in such a way as to deprive them of employment opportunities or adversely affect their status as employees.

At this time, GINA does not allow employees to prove employment discrimination grounded on genetics based solely on disparate impact, but it does allow the Equal Employment Opportunity Commission ("EEOC") to create a commission to investigate whether disparate impact claims based on genetic information should be allowed. If the EEOC decides to permit such claims, the volume of such claims is likely to sky rocket.

Genetic information also is included within the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") definition of "protected health information." Therefore, confidentiality standards must be maintained. Under GINA, genetic information must be treated as confidential and maintained on separate forms and in separate files apart from other employment-related information.

Exceptions

GINA contains a number of exceptions which allow an employer to collect genetic information. An employer can collect genetic information in order to comply with the Federal Family Medical Leave Act and similar state laws, and can request or require the disclosure of genetic information to monitor the biological effects of toxic substances in the workplace. Further, an employer is allowed to purchase commercially and publicly available genetic information about an employee or an employee’s family member found in sources such as newspapers, magazines, periodicals, and books. However, genetic information in medical databases or court records is not included in this exception and may not be collected or purchased by an employer. Finally, employers who inadvertently collect genetic information are not liable under GINA. Only the intentional collection of such information is forbidden. Given the nebulous nature of the term "inadvertently," this aspect of GINA surely will be the subject of litigation in the future.

GINA also contains a number of exceptions to its confidentiality requirement which allow an employer to legally release genetic information about an employee to third parties. For example, GINA allows an employer to release such information in response to a court order, provided the employer notifies the employee of the disclosure if the court order was issued without the employee’s knowledge. An employer also may divulge to any public health agency information related to an employee’s manifestation of a contagious disease which presents an imminent threat of death or life threatening illness. Further, if the employee is notified, an employer may divulge genetic information to any public health agency in the form of information that a employee’s family member has manifested such a disease. Finally, since employers presently, or in the future, may offer genetic counseling as part of their benefits program, use of genetic information for that purpose will be allowed if the employee provides prior, voluntary, and written authorization for disclosure of such information to the service provider. However, the employer’s involvement in offering genetic counseling must be limited to structuring and paying for the service.

Early Planning is Advised

GINA will be a minefield for employers because its definition of "genetic information" goes considerably beyond the common understanding equating "genetic information" with cutting-edge technologies such as DNA analysis. Even questions flowing from genuine concern regarding the health of an employee or loved one may land an employer in court facing considerable liability. Employers should start preparing now for GINA’s effective date of November 21, 2009.

Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees, and investors. Jennifer Parser practices in the Labor and Employment and Immigration Practice Groups, where she concentrates her immigration practice on business immigration, particularly investor visas, both nonimmigrant and immigrant. Jennifer’s practice is limited to Federal Immigration and Naturalization Law. She currently is licensed in New York only. Kyle R. Still practices in the Labor and Employment Practice Group, where he has represented clients before the U.S. Equal Employment Opportunity Commission, the North Carolina Industrial Commission, and the Employment Security Commission of North Carolina. Comments or questions may be sent to jgp@wardandsmith.com or to ks@wardandsmith.com

© Ward and Smith, P.A. 2008

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.