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Genetic Information as the Basis for Discrimination

A federal law effective Nov. 2009 created a new form of illegal discrimination. The Genetic Information Non-discrimination Act (GINA)external link makes it illegal for an employer to use genetic information to discriminate against employees or job applicants. Employers and other covered organizations may not request, require, or purchase genetic information; disclosure of such information in the employer’s possession is strictly limited. As with other forms of illegal discrimination, the law also prohibits harassment on the basis of genetic information and retaliation for pursuing a complaint.

According to the Equal Employment Opportunity Commission, which enforces GINA, genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about the manifestation of a disease or disorder in an individual’s family members (i.e., family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. This means, for example, that an employer may no longer ask for family histories when requiring a fitness-for-duty exam.

There are certain situations when obtaining genetic information is allowed. The employer may require information about family health issues when the employee seeks to take FMLA leave to aid the family member. Also, an employee wellness program may ask for information about family medical history, but cannot require the employee to complete those questions; the medical history must be voluntarily given. The wellness program’s participation bonus cannot be withheld for failure to complete medical history questions.

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Last Updated: August 01, 2011