The Genetic Information Nondiscrimination Act (GINA) Title VII of Civil Rights Act has regulated discrimination cases involving genetic information since 2009. It monitors harassment and discriminatory acts on the basis of genetic test results influencing employment opportunities, salary rate, retention, and promotion decisions.
Genetic information refers to the employee's genetic test results and data on disorders and diseases. Medical history is categorized as a confidential document; it may contain information to family disease. This document is treated as confidential as it may be used to trace potential genetic illness or disorder.
GINA Title II prohibits employers from basing employment decisions on medical history documents. It also prohibits unwarranted obtaining of medical records. It also prohibits employers from disclosing the genetic information to other employers or employees. All medical information of employees is to be kept confidential, secure, and safe.
Employers are prohibited from using the genetic information for ability assessment because it may not reflect the current physical and mental condition of the employee. Applicants may also be exposed to harassment and discrimination if the genetic information will be used.
Americans with Disabilities Act (ADA) and Health Insurance Portability and Accountability Act (HIPAA) prohibits the disclosure of medical information and its use for assessing employment qualification.
However, GINA has several exemptions. Employers may retrieve genetic information only under certain conditions:
1. The medical history of the employee is needed as part of requirement for FMLA certification.
2. The genetic information will be used as part of a wellness program in which test results will only be given to employee/ family member and the doctor.
3. The medical information will be used as part of the company's monitoring on toxic substance effect. The employer should give proper notice, seek consent, and delineate who will view the results. The process of using the results and the extent of disclosure should be identified and explained to the employer. The employees' identity should be protected and all genetic information should be within controlled confidentiality.
4. Employers may retrieve medical information through legally published periodicals and books.
An employer may disclose medical information under special conditions:
1. The medical information poses threat to public health, involving contagious disease.
2. It is part of the requirements of FMLA certification
3. It is part of a court requirement
4. The employee request a copy of his/her medical result
Genetic testing involves analysis of RNA/DNA, metabolites, and chromosomes to determine patterns and abnormalities in genes.
If you are a victim of discrimination on the basis of genetic information, you may file a lawsuit. You may assert compensatory damages and be reinstated to your work position. Consult with a Labor Rights attorney today.