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BY TRACY LEAHY, Esq.

Advances in medical research have resulted in the early detection and treatment of illnesses. One of the most significant advancements is testing that can identify genetic differences that could increase an individual’s chance of developing a particular disease.

But there’s a downside to such progress: the possibility that people might suffer discrimination based on what those DNA tests discover. As a result, many states, including Michigan, have passed laws prohibiting genetic discrimination in employment.

Federal law is keeping up, too. In May 2008, President Bush signed into law the Genetic Information Nondiscrimination Act of 2008 (GINA). GINA establishes a national and uniform minimum standard for the protection of genetic information.

Genetic info & Michigan law

Michigan’s Persons with Disabilities Act prohibits any employer from discriminating against an individual based on genetic information.

Employers may not require an individual to submit to a genetic test or provide genetic information as a condition of employment or promotion. Except when employees voluntarily provide it, employers may not directly or indirectly acquire or have access to any genetic information concerning an employee, applicant or a member of the employee or applicant’s family.

If an employee voluntarily provides genetic information, the employer may use it to protect the employee’s health or safety in the workplace.

GINA & health insurance

GINA was enacted to allay concerns about discrimination against individuals who take advantage of genetic testing, research and therapies that could benefit their health. GINA prohibits discrimination on the basis of genetic information with respect to health insurance and employment.

GINA prohibits group health plans and health insurance issuers from adjusting premiums or contribution amounts on the basis of genetic information. It does not prevent health insurers from increasing premiums on the basis of a manifestation of a disease, but the disease cannot be used as genetic information about other group members.

Health insurers may not request or require genetic testing, except when making payment determinations under HIPAA privacy regulations. In those circumstances, only the minimum information necessary to make the payment determination may be requested.

GINA also prohibits health insurers from requesting, requiring or purchasing genetic information for underwriting purposes. It is also illegal to collect genetic information before someone enrolls in a health plan.

GINA & employers

GINA prohibits employers with 15 or more employees, employment agencies and labor unions from discriminating against an employee or an employee’s family member on the basis of genetic information with respect to the compensation, terms, conditions or privileges of employment, except where the employer:

  • Inadvertently requests or requires the family medical history of an employee or a family member of the employee
  • Offers genetic services as part of a wellness program and the employee provides a prior, knowing, voluntary and written authorization
  • Requests family medical history to comply with the certification provisions of the FMLA
  • Purchases documents that are commercially and publicly available and that include family medical history
  • Uses the information for genetic monitoring of the biological effects of toxic substances in the workplace
  • Conducts DNA analysis for law enforcement purposes as a forensic laboratory or for purposes of identifying human remains and requests or requires genetic information of employees to detect sample contamination.

Any identifiable genetic information cannot be disclosed to the employer, except in aggregate terms that do not disclose the identity of a specific employee.

An employer that possesses genetic information about an employee must maintain it in a separate medical file and treat the information as a confidential medical record. Employers may not disclose genetic information except in limited circumstances.

GINA’s prohibitions on workplace discrimination go into effect on Nov. 21, 2009—18 months after the legislation became law. Employers should review their equal employment and medical record retention policies to ensure compliance with GINA.

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Author: Tracy Leahy is an attorney with the Labor and Employment Practice Group of Clark Hill PLC in Detroit. Contact her at tleahy@clarkhill.com or (313) 965-8533.

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