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California laws on genetic testing, bias

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in Firing,Hiring,Human Resources

Q. I recently heard that Congress was considering legislation that would bar employers from using individuals’ genetic information when making hiring, firing, job placement or promotion decisions. Is there a state statute addressing this matter?

A. California law prohibits employers from discriminating against workers based on their “genetic characteristics.” The statute defines this term broadly to include “any scientifically or medically identifiable gene or chromosome … that is known to be a cause of a disease or disorder … or that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with any symptoms of any disease or disorder.” The definition also includes “inherited characteristics that may derive from the individual or family member.”

The Fair Employment and Housing Act also prohibits employers from requiring applicants or employees to submit to genetic testing. This California law is intended to prevent employers from screening healthy job applicants and employees for their predispositions to future illness.

The Confidentiality of Medical Information Act (CMIA) prohibits health care services plans from disclosing applicants’ genetic test results to any third party (including employers). This California law provides for a fine of up to $1,000 for the negligent disclosure of genetic test results and a fine of up to $5,000 for willful disclosure of such information. Anyone responsible for a disclosure that causes “economic, bodily or emotional harm to the subject of the test” can be fined up to $10,000 and is guilty of a misdemeanor.

According to the CMIA, however, such a disclosure is permitted with the “written authorization” of the person tested. A separate authorization is required for each disclosure. 

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