Genetic law creates new ‘right to privacy’ for employees

A company can’t refuse to hire people because they are genetically disposed to develop a particular disease or condition, even if this would cause the company’s health care costs to skyrocket. That’s the result of a new federal law, called the Genetic Information Non-Discrimination Act, or GINA.

But this law does more than just prohibit discrimination based on genes. It also creates a new right to medical privacy for employees. In some cases, employers can get into big trouble if they violate this right to privacy.

Specifically, the law prohibits employers from requesting, requiring or disclosing genetic information about employees. This kind of information can come up when employees ask for time off under the Family and Medical Leave Act or for an accommodation for a disability. Employers frequently request medical records to support such a request.

To be safe, many businesses should consider adding disclaimers whenever they request health-related information, such as “Please do not provide any genetic information in response to this request.”

Managers might also be cautioned not to casually or inadvertently request such information – such as when visiting a sick employee in the hospital. And if genetic information is inadvertently disclosed, managers should be careful not to repeat it to anyone, and to either destroy it or keep it filed away separately from other employee records.

The penalties under the new law are steep – potentially up to $300,000 per offense, as well as punitive damages, attorneys’ fees and administrative remedies.

It’s not clear yet, though, how the law will be applied. We’ll have to wait and see. But in the meantime, employers would be wise to be as safe as possible.

The law goes into effect in May 2009 with regard to the health-care provisions; the employment provisions take effect six months later.

There are some exemptions in the law. For instance, it’s generally legal for genetic information to be disclosed as part of a “wellness” program for employees that’s sponsored by the employer but run by a third party.

However, it’s not clear if this is true if the wellness program is run by the employer itself. In any event, employers will probably want to get the employees’ written consent, and take steps to see that the information isn’t disclosed outside the program. The law also allows genetic monitoring while testing the effects of toxic substances in the workplace.