Are you compliant with genetic screening law?

The Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits discrimination against a job applicant or employee based on the individual's genetic information, as well as the improper acquisition or use of such information, has important implications for occupational health.

"You will need to review and revise policies in light of this development," says Kathleen Liever, an Employment Law Associate at Fowler White Boggs in Tampa, FL.

Although GINA is designed to work in conjunction with a variety of other federal employment laws, including the Health Insurance Portability and Accountability Act (HIPAA), the Americans with Disabilities Act (ADA), the Occupational Safety and Health Administration, and the Family and Medical Leave Act, the way you comply with these laws will need to be modified to some extent, says Liever.

For example, employers conducting post-offer medical examinations, medical exams during employment, and fitness for duty exams, all of which are allowed under the ADA, will no longer be able to inquire about family medical history.

Employers still may conduct these tests and may obtain medical information, but not genetic information. "However, family medical histories are commonly interspersed in medical records," says Liever. "Because there is no practical way for physicians or hospitals to omit non-genetic information, employers will likely continue to receive medical records in their entirety."

If genetic information is obtained, even inadvertently, an employer must now comply with GINA's confidentiality and disclosure requirements. "In addition, employment decisions may now be challenged on the basis that an employer came into possession of such information and then made an adverse employment decision," says Liever.

Likewise, employers conducting genetic testing to monitor the biological effects of toxic substances in the workplace must comply with GINA by providing written notice to employees who are tested and making the test results available to employees.

Overlapping coverage

Liever says to "be alert for overlapping coverage of major laws," such as the ADA, FMLA, GINA, HIPAA, workers' compensation, and analogous state laws. "The interplay between the ADA and GINA will likely result in lawsuits alleging multiple and overlapping claims," she explains.

GINA prohibits discrimination based on the possibility that someone will acquire a condition in the future. The ADA protects individuals who currently have impairments or who are perceived as having impairments, if they meet the definition of "disability."

"The expanded definition of "disability" under ADA makes it far less likely that individuals will be without protection under either statute," says Liever.