Can you imagine a time when employees might willingly share their genetic information with employers in an effort to protect their jobs? According to lawyer Richard Tuschman, shareholder in Akerman Setnerfitt’s labor and employment practice group, this scenario is a real possibility.
DNA testing is a fast-growing industry. 23andMe, a genetic testing company, recently announced it is seeking FDA approval for a direct-to-consumer product that allows consumers — your employees — to understand their own genetic make-up. While there are benefits to this technology — allowing scientists to better identify the causes of disease, for example — there can also be repercussions in the workplace.
And while Title II of the Genetic Information Nondiscrimination Act restricts employers from requesting, requiring or purchasing genetic information and strictly limits the disclosure of genetic information, GINA does not prevent employees from disclosing their genetic information to co-workers and supervisors.
“When genetic testing becomes more commonplace — as it looks like is going to happen — employees will have a lot of information about their genetic code and susceptibility to certain diseases and conditions,” says Tuschman.
The issue, he says, is that when employees have this genetic information and they realize employers are prohibited from discriminating against them on the basis of that information, some of those employees, who otherwise might not feel they’re in a protected class, may willingly disclose genetic information to protect their jobs.
“For example, a white male under 40 years old usually wouldn’t be considered in a particularly protected class,” he explains. “But if that white male under 40 years of age had a genetic predisposition to Parkinson’s, all of a sudden — if his employer knows of that — the employer has an obligation not to discriminate against him on that basis.”
So what should supervisors do if an employee voluntarily discloses personal genetic information in conversation? GINA regulations don’t specifically address whether a supervisor can or should disclose an employee’s oral disclosure of genetic information to HR or anyone else, says Tuschman.
“What is clear is that the information must be kept confidential within the company, and if in writing, must be kept in a confidential file along with any other confidential medical information about the employee,” he says. “A fair reading of the regulations is that the supervisor can and should disclose an oral report to human resources, since it would be responsible for maintaining the information confidentially if it were in writing.”
What’s key is that once the supervisor knows that genetic information, they can’t discriminate against the employee and, also, “if the supervisor were to take an action against the employee after that disclosure, that adverse action – whether it’s a termination or demotion or whatever – could be viewed as suspect,” says Tuschman. “The question could be raised: Was that action taken for legitimate reasons or was it taken because the supervisor now knows that employee is likely to get [for example] Parkinson’s?”
Employers should be aware of GINA’s provisions, says Tuschman. Employers should also be aware that if, in the future, employees start taking genetic tests and discussing that information in the workplace or even on social media venues such as Facebook, that information can’t be used to make employment decisions.
“In a worst-case scenario, employers need to be aware that some employees may try to set them up by disclosing that information and trying to protect their jobs,” he cautions. “I haven’t seen that with genetic information, but, as an employment lawyer, I have seen instances where it appears employees are disclosing certain information to protect their job. For example, employees will sometimes complain of discrimination when it appears their jobs are on the line because they know that once they complain of discrimination, they’re in a protected status, and any adverse employment action taken on the heels of that complaint can be viewed as suspect, as potentially retaliatory.”
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