New Genetic Information Nondiscrimination Act Regulations Present Pitfalls

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At first glance the Genetic Information Nondiscrimination Act appeared to have limited application to today's workplace, but regulations enacted this month by the EEOC show that its reach is actually much broader.

The Act, which became effective last year, in part prohibits employers from requesting genetic information about applicants or employees. It also bars employers from discriminating on the basis of genetic information.

When first passed, it appeared that the Act would have little impact because, presumably, very few employers genetically test their employees or are contemplating doing so. However, the EEOC regulations show that there’s much more at stake.

Nothing prevents an employee from claiming an adverse action was the result of the employer’s knowledge of genetic information about the employee, regardless of how it was obtained. This is made clear by the “genetic information” box that can now be checked as a protected category on Charge of Discrimination forms.

Here are a few important points to keep in mind:

"Genetic information" is defined not only as genetic tests of an employee or an employee's family member, but also family medical history. For example, knowledge that Alzheimer’s runs in an employee's family may be considered knowledge of genetic information about the employee as defined under the Act.

Employers cannot be held liable for intentionally acquiring genetic information if the information is passively obtained. This would occur if an employee volunteers the information after simply being asked "How are you?" Information can also be passively obtained if an employee posts it on Facebook or if a supervisor inadvertently hears two employees discussing their own or family medical history.

However, even a casual conversation with an employee can result in a violation of the Act. Once an employee reveals any potentially protected information, the Act prohibits asking the employee "probing" follow up questions.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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