New genetic discrimination law creates problems for employers

What if a manager reads about a worker’s family illness on Facebook?

Employers are struggling to comply with a new federal law that prohibits discrimination based on genetic information.

The Genetic Information Non-Discrimination Act, or GINA, not only makes it illegal for an employer to discriminate against workers based on genetic susceptibility to illness, but also makes it against the law merely to “acquire” such information about an employee, including family medical history.

Because many employees are open about wearing pink ribbons or yellow bracelets and participating in fundraising walks for family members with a genetic illness such as breast cancer, employers have to be careful about acquiring such information and what they do with it.

The first lawsuit under GINA was filed in April by a Connecticut woman who underwent a double mastectomy and claims she was terminated as a result of telling her employer that she had tested positive for a breast cancer gene.

The law makes an exception if genetic information is “inadvertently” obtained by an employer through “publicly and commercially available” resources, such as newspapers and magazines. So an employer who happens to learn about an employee’s family medical history by reading a newspaper obituary about one of the employee’s relatives would be exempt.

However, the law doesn’t say what happens if an employer monitors employees’ social media sites and acquires information that way.

The U.S. Equal Employment Opportunity Commission has asked for public comment on the social media question, and is expected to provide regulations sometime in the future.

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