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New law prohibits genetic screening for jobs
Concerns had arisen over potential misuse of genetic information by insurers, employers

By Tim Doran
The Associated Press
updated 1/12/2011 1:24:22 PM ET 2011-01-12T18:24:22


BEND, Ore. — Federal regulations making it illegal for employers to discriminate against workers or job applicants based on their genetic information became effective Monday.

The rules should be familiar to Oregon employers — the state has prohibited use of genetic screening in employment since the mid-1990s, according to state records.

Still the U.S. Equal Employment Opportunity Commission created more detailed regulations for the federal law, said Melinda Grier, who teaches employment law at the University of Oregon School of Law.

"I think it's an additional protection," she said.

As part of the Genetic Information Nondiscrimination Act of 2008, employers also cannot request, require or purchase genetic information, and the law strictly limits its disclosure, according to the Oregon Bureau of Labor and Industries and the EEOC.

Congress passed the legislation, which also deals with potential discrimination in health insurance coverage, in 2008. The EEOC adopted rules for the employment portion in November, and they became effective Monday.

Genetic research has advanced quickly over the past 20 years. Scientists mapped out the human genome, which equals all the genes that make up humans, in 2003.

The advances, which prompted the law, make it possible for people to learn their potential to develop certain medical conditions based on their family histories, according to a recent BOLI technical assistance column.

Treatment for some conditions can be costly, so concerns cropped up about the potential misuse of genetic information by insurance companies and employers, many of which pay for their employees' health insurance, Grier said.

For example, she said, to keep costs down, an employer may decide not to hire employees if they or their family members have the potential for certain medical conditions.

"Employment should be related to a person's performance on the job," Grier said.

While genetic employment discrimination has not generated a large number of lawsuits, Grier said, it's a concern, especially as the public becomes more aware of genetic research.

These days, she said, many women know if they have a gene that indicates they are more likely to develop breast cancer.

The law covers businesses with 15 or more employees, along with labor unions, employment agencies and apprenticeship and training programs, according to BOLI, and it protects individuals or family members, including fetuses or embryos of those receiving fertility treatments.

The Genetic Information Nondiscrimination Act defines genetic tests as those that reveal, for example, a predisposition to breast cancer, colon cancer, Huntington's disease, or screening for cystic fibrosis or sickle-cell anemia.

Employers may test workers to determine if they have alcohol or illegal drugs in their systems. But they cannot test for employees' genetic predisposition to alcoholism or drug abuse.

The law allows several exceptions when obtaining genetic information would be allowed. They include:

—Overhearing the information inadvertently, or in a casual conversation, although probing follow-up questioning would be prohibited.

—Employees' participation in voluntary wellness programs, provided employers cannot access the information.

—Obtaining medical conditions to verify the need for leave under the Family and Medical Leave Act.

—Learning the information from publicly available sources, such as television, the Internet or publications.

Similarly, the law allows exceptions when disclosing genetic information would be allowed. They include:

—When it is requested in writing by the employee.

—When giving it to a health researcher.

—If it's in response to a court order.

—Providing it to government officials investigating compliance with the Genetic Information Nondiscrimination Act.

Given Oregon's history in prohibiting employment discrimination based on genetic information, complying with the new federal regulations should not require much more from businesses, Grier said.

"I think that it fits right in with the system employers use in (following) the Americans with Disabilities Act and the Family and Medical Leave Act," she said.

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New law prohibits genetic screening for jobs - Health - Health care - More health news - msnbc.com