| Federal Law on Genetic Screening of Employees Takes Effect
November 24 2009
Title II of the federal Genetic Information Nondiscrimination Act of 2008 ("GINA"), which affects California employers, took effect on November 21, 2009. Title II addresses obligations of employers to refrain from basing employment decisions on an employee's genetic information and provides instructions to safeguard such information.
GINA should not have a major effect on the hiring practices of most California employers, but will require fine-tuning of both employers' screening and recordkeeping procedures to ensure compliance. California's Fair Employment and Housing Act ("FEHA") already prevents the use of general medical screening in the hiring of employees with some exceptions. The employer must be able to show that the screening is necessary to determine if the essential job functions can be performed safely by the candidate, and the screening must be narrowly tailored to address only those job functions.
Thus, under existing California law, general medical screening, including blood tests which might reveal an unfavorable genetic or family history, is already prohibited. GINA goes a step further than FEHA by prohibiting the use of family history or other genetic information even in the limited circumstances of determining a candidate's ability to safely perform essential job functions. In this regard, GINA's provisions are stricter than California law. As an example, under FEHA, a pilot's family history of heart disease could be used to determine whether he or she is medically fit for the job; under GINA, that history cannot be used.
GINA will require, at most, minor changes in how confidential personnel information is stored by employers. Under HIPAA, employers are already required to have adopted procedures to safeguard and segregate protected health information ("PHI"). GINA adds the additional responsibility of requiring genetic information, which includes family history of disease, to be segregated and safeguarded in a fashion similar to PHI. In most instances, genetic information protected by GINA would be also be considered PHI and subject to appropriate safeguards anyway. Therefore, the only additional responsibility for employers to address is safeguarding and segregating that small subset of genetic information that does not fall under the definition of PHI.
GINA applies to employers who have 15 or more employees. FEHA applies to California employers who have five or more employees.
For more information, please contact any WFB&M attorney with whom you have an existing relationship, or call (714)634-2522 (Orange), (415)781-7072 (San Francisco), or (213)223-2052 (Los Angeles) to be directed to someone who can answer your questions.
|
