Title II of the Genetic Information Nondiscrimination Act (GINA) took effect as of November 21, 2009.  GINA prohibits employers, employment agencies, insurers, and unions from discriminating on the basis of genetic information.  

Genetic information includes any information about an individual's genetic tests and genetic tests of an individual's family members, as well as information about any disease, disorder, or condition of an individual's family members.  This law mainly applies to an employer's aquisition of an employee's family medical history, which is often used to determine whether someone may have an increased risk of getting a disease, disorder, or condition in the future.  Additionally, the law forbids even the collection of genetic information related to employees or applicants or doing any genetic testing of employees or applicants. 

Under GINA, however, genetic information may still be obtained in the following circumstances:

• Whenever it is inadvertently acquired;
• When obtained as part of health or genetic services, such as wellness programs, that are offered by employers on a voluntary basis;
• When obtained as part of the certification process for FMLA leave or leave under the California Family Rights Act when the leave is to care for a family member with a serious health condition;
• Whenever such information is acquired through publicly available documents, such as a newspaper, unless the employer is searching those documents for such information;
• When obtained through a genetic monitoring program used to determine the biological effects of toxic substances in the workplace, if the program is required by law or is monitored under very carefully defined conditions and the program is voluntary; and
• Whenever genetic information is acquired for DNA testing for law enforcement purposes or for purposes of identifying human remains.

Counsel to Management:

Aside from the listed exceptions, employers cannot subject an employee, applicant or any other person to a test for the presence of a genetic characteristic or discriminate on the basis of such a characteristic.  Additionally, new "Equal Employment Opportunity is the Law" posters are now required to reflect these changes.  Employers should revise handbook policies and inform and train supervisors and managers that such discrimination is now prohibited. 

Aside from these issues, however, this law should not materially change how employers run their businesses.  However, if you are concerned about how this law may impact your company, you should consult with legal counsel. 

The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with The Saqui Law Group at (831) 443-7100 in Salinas.