LABOR & EMPLOYMENT NEWSLETTER - H.R. 493 - Employers face new hurdles under the Genetic Information Nondiscrimination Act

At 2:05 p.m. on Wednesday, May 21, 2008, President Bush signed into law H.R. 493, the Genetic Information Nondiscrimination Act of 2008 (the "Act"). Under Title II of the Act, employees may now be in a protected class not only by virtue of race, color, religion, sex, national origin, age (over 40) and disability, but also on the basis of genetic information.

Employers who commit an unlawful employment practice under the Act are subject to the same liability as they would face for discrimination in violation of Title VII of the Civil Rights Act of 1964. Unlawful employment practices include not only discrimination on the basis of genetic information, but also the acquisition of genetic information by an employer. As used in the Act, "Genetic Information" means "with respect to any individual, information about -- (i) such individual's genetic tests, (ii) the genetic tests of family members of such individual, and (iii) the manifestation of a disease or disorder in family members of such individual."

It may be easy for an employer, particularly one offering a wellness plan, to run afoul of the Act and be subject to liability. There are two types of unlawful employment practices under the Act -- (1) discrimination on the basis of genetic information, and (2) the acquisition of genetic information. While the prohibitions against discrimination on the basis of genetic information generally mirror the Title VII prohibitions on discrimination on the basis of race, color, religion, sex, or national origin, the prohibition of the acquisition of genetic information may prove to be far more problematic.

Under the Act, it is an unlawful employment practice for an employer to "request, require or purchase genetic information with respect to an employee or the family member of an employee" unless one of six exceptions apply. The exceptions include: (1) where the acquisition is inadvertent, (2) where the acquisition is in connection with a wellness plan in compliance with the Act, (3) where the acquisition is in connection with a certification request under FMLA or a similar state statute, (4) where documents including family medical history of an employee are commercially and publicly available (excluding medical databases or court records) and are purchased by the employer, (5) where the information is for genetic monitoring of the biological effects of toxic substances in the workplace, and the Employer complies with other provisions of the Act, and (6) where the employer conducts DNA analysis for law enforcement purposes as a forensic laboratory or for purposes of human remains identification, and the genetic information is used for quality control purposes to detect sample contamination.

Employers should review their wellness plans to ensure compliance. Any wellness plan that does not require a written authorization from the employee, or that permits the employer to receive any individually identifiable genetic information could be in violation of the Act. The Act itself contains greater detail as to those and other specific requirements now imposed on employers.