Imagine a scenario straight out of the movies: A multi-national corporation discovers that security at its laboratory in Atlanta, Georgia has been compromised. Somebody broke in, stole some corporate secrets and escaped. But wait! It appears the spy cut himself on the way out and left a blood sample. Our hero, a dedicated corporate executive, believes the thief was an employee of the corporation. He determines to do a DNA test of every employee in the facility and find the dastardly thief.
This corporation, however, has sophisticated lawyers. These lawyers are concerned that such a test may somehow violate the employees' privacy rights. So the lawyers convince our hero to gently request that each employee submits to the DNA test. Every employee who agrees to the test signs a waiver stating that he or she agrees to the test. So, has our hero complied with the law?
NO! He has violated his employees' rights under the Genetic Information Nondiscrimination Act of 2008 (“GINA”), 42 U.S.C. § 2000ff, et seq.
GINA is a relatively new law, and not particularly well-known. Those who do know about it probably know that it prohibits discrimination based on an employee's genetic information (including her genetic makeup and her family's history of diseases or disorders that run in the genes). But most people don't know that GINA also contains strict privacy protections to prevent employers from even obtaining their employees' genetic information.
Section 202 of GINA reads as follows: “It shall be an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee or a family member of the employee.” 42 U.S.C. § 2000ff-1(b). That means that, under the law, employers may not even request an employee's genetic information, much less require their employees to provide it.
But what about our intrepid hero's sophisticated lawyers? Didn't they solve the problem by making the whole process voluntary? Again, no! It is illegal even to request such information, subject to six (6) specific exceptions:
- Where the employer inadvertently requests or requires family medical history of the employee or her family members;
- Where the genetic information is sought as part of “health or genetic services” offered by the employer, such as a wellness program. Even then, the employee must provide written authorization. Moreover, only the health care professional/genetic counselor providing the services – not the employer – may see individually identifiable genetic information;
- Where the employer requests or requires family medical history as part of the certification process under family and medical leave laws;
- Where the employer purchases documents that are commercially and publicly available (i.e. magazines or books…NOT medical databases or court records) and those documents include family medical history;
- Where the information is to be used for genetic monitoring of the biological effects of toxic substances in the workplace. This exception only applies when such monitoring is required by law. The exception is subject to numerous conditions, including the requirement for written employee authorization and a prohibition against the employer receiving any individually identifiable genetic monitoring results; AND
- Where the employer is conducting DNA analysis for law enforcement purposes as a forensic laboratory or for purposes of identifying human remains, and then only to detect sample contamination in DNA identification markers.
Here's the key takeaway from those detailed exceptions: there is no stand-alone exception for “voluntariness”! An employer cannot remove the illegality from an illegal request by getting the employee's permission. “Voluntariness” is only relevant when an employee signs a prior written authorization as part of a wellness program or a program for monitoring the genetic effects of toxic substances in the workplace.
Unfortunately for our hero and his sophisticated lawyers – but fortunately for employees across the nation who value their privacy – GINA strictly protects employees' genetic information.