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, announced last fall that it's seeking approval from the Food and Drug Administration 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.
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.
The issue, says Tuschman, 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-old 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."
The way the law is written, "that [scenario] is definitely a possibility," says Jillian Collins, an associate with Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. "The employer wouldn't be liable under the acquisition prong [of GINA], but the real area that will be interesting is the discrimination prong because the employee can essentially volunteer this information up and put themselves in a protected class."
However, if an employee claims discrimination based on genetic information, the burden of proof is on the employee. "There have been a few cases dismissed just based on the complaint because the employee did not meet that 'because of' prong," says Collins. "The employee didn't allege enough facts to implicate that any type of medical history or genetic information was an issue in terms of adverse employment decisions."
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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," Tuschman says. "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."
It's been three years since GINA was passed, and it's still an emerging area of law, says Collins.
"The genetic testing area is interesting, but the law is even broader than that because your genetic information can include these [genetic] tests for the individual, their family members or the manifestation of a disease or disorder in a family member, which is essentially your family medical history," she says. "So, even before we get to the point where people are buying these genetic tests on the consumer market, there's much more liability potential for employers on the family medical history, which is something people discuss quite often."
Collins believes courts will be skeptical of claims where an employee claims discrimination under the Americans with Disabilities Act or the Age Discrimination in Employment Act "and throws in a GINA claim for good measure. The few cases we've seen like that, the courts have dismissed the GINA claim when they were just sort of thrown in as another potential protected class."
