Question of the Month

April 2017

Question
Does your area regulate the use of an individual's genetic information for employment purposes?
Answer from Ohio

1.      Not applicable in Ohio.

For more information please contact Emily Gelhaus at ejg@drgfirm.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Missouri

Yes, § 375.1306, R.S.Mo., ”An employer shall not use any genetic information or genetic test results, . . . of an employee or prospective employee to distinguish between, discriminate against, or restrict any right or benefit otherwise due or available to such employee or prospective employee.”

For more information please contact Stephen Maule at maule@mcmahonberger.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Massachusetts

Massachusetts explicitly protects against employment discrimination based on genetic information.  M.G.L. C. 151B.  Employers may not: (1) Base employment decisions on genetic information; (2) Use the results of a genetic test or genetic information to affect the terms, conditions, compensation, or privileges of a person's employment; (3) Require or request genetic information as a condition of employment; (4) Offer an inducement to take a genetic test or disclose genetic information; (5) Question a person about previous genetic testing, or genetic information about themselves or family members, or; (6) Seek, receive, or record genetic information.

For more information please contact Marylou Fabbo at mfabbo@skoler-abbott.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Maryland

Yes in Maryland.

For more information please contact Fiona Ong at fwo@shawe.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from California

Yes. The Fair Employment and Housing Act (FEHA) prohibits harassment and discrimination in employment because genetic information (Government Code sections 12940,12945, 12945.2) and/or retaliation for protesting illegal discrimination related to genetic information.

For more information please contact Erin Winters at ewinters@fosteremploymentlaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Nevada

Yes. Under NRS 613.345, it is unlawful for an employer to require or encourage current or prospective employees to submit to genetic tests or deny, terminate, or alter the terms and conditions of employment based on genetic information.

For more information please contact Scott Abbott at SAbbott@kzalaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Michigan

Michigan’s Persons With Disabilities Civil Rights Act prohibits employers from requiring an individual to submit to a genetic test or to provide genetic information as a condition of employment or indirectly acquire or have access to any genetic information concerning an employee or applicant for employment or discharge,  limit, segregate, or classify an employee or applicant for employment or otherwise discriminate on the basis of genetic information.
 
MCL § 500.3407b has a peripheral effect on employment, as it prohibits requiring genetic testing or disclosure of prior genetic testing of insureds, although it does permit questions about family medical history.

For more information please contact Bill Pilchak at wpilchak@mi-worklaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Minnesota

Yes.  Minn. Stat. § 181.974 Subd. 2 provides:
 

(a)  No employer or employment agency shall directly or indirectly: (1) administer a genetic test or request, require, or collect protected genetic information regarding a person as a condition of employment; or (2) affect the terms or conditions of employment or terminate the employment of any person based on protected genetic information.
 
(b)  No person shall provide or interpret for any employer or employment agency protected genetic information on a current or prospective employee.


The Minnesota statute applies to “any person having one or more employees in Minnesota, and includes the state and any political subdivisions of the state.”  Minn. Stat. § 181.974 Subd. 1(b)

For more information please contact Doug Seaton at dseaton@seatonlaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from New York

The New York State Human Rights Law (“NYSHRL”) prohibits employment discrimination on the basis of an employee or applicant’s “predisposing genetic characteristics”.  The law also restricts employers’ ability to obtain or use genetic tests and information from employees and applicants.  Under the NYSHRL, employers may not solicit, require, or administer a genetic test, may not solicit or require an individual to produce information from which predisposing genetic characteristics can be inferred, and may not purchase or otherwise acquire the results or analysis of an individual’s genetic test results.   There are limited exceptions in circumstances where genetic testing directly relates to the occupational environment, to determine the employee’s susceptibility to potentially hazardous substances in the workplace, or in connection with civil litigation and workers compensation claims.

For more information please contact John Keil at jkeil@cfk-law.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from North Carolina

North Carolina does not have a separate state law governing the use of genetic information in employment. Federal law applies.

For more information please contact Steve Dunn at steve.dunn@vradlaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Wisconsin

Wisconsin does prohibit the use of genetic information including the banning of genetic testing and discrimination in the workplace per Wis. Stat. 631.89. Like the Genetic Information Nondiscrimination Act (GINA), Wisconsin’s genetic laws apply to public and private employers and prohibit employers from failing to hire, discharging, or discriminating against an employee on the basis of genetic information.

For more information please contact Laurie Petersen at LPetersen@lindner-marsack.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Alabama

No in Alabama.

For more information please contact David Middlebrooks at dmiddlebrooks@lehrmiddlebrooks.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Florida

Florida employers may not conduct genetic testing or disclose test results without a person’s informed consent. If an employee allows an employer access to the result of genetic testing, an employer must provide the employee notice if the employer uses the information in an employment decision. If the genetic testing information results in a negative employment decision, the analysis must be verified. If the first analysis is determined inaccurate, the employment decision must be reviewed. See Fla. Stat. § 760.40.  Florida law also prohibits discrimination in employment on the basis of sickle cell traits. See Fla. Stat. § 448.076.

For more information please contact Wayne Helsby at WHelsby@anblaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Oregon

Yes.  The two Oregon statutes specific to the use of genetic information in the employment context are ORS § 695A.303, enacted in 1993, and ORS § 695A.300, enacted in 1995.

Under ORS § 695A.300 (along with ORS § 192.535, regulating informed consent for obtaining genetic information generally), an employer may not subject any employee or prospective employee to a genetic test, or obtain genetic information from such employee’s DNA sample, unless (i) the employee or the employee’s representative provides informed consent; and (ii) the genetic test is administered solely to determine a bona fide occupational qualification.  Employers are further prohibited under ORS § 695A.303 from seeking to obtain, obtaining, or using genetic information of an employee, prospective employee, or blood relative of the employee or prospective employee to distinguish between or discriminate against employees or prospective employees, or to restrict a right or benefit due or available to them.

OAR 333-025-0140 sets forth the procedure for securing informed consent to obtain genetic information.  In the context of an employer seeking genetic information from an employee, the employee would provide informed consent by signing a consent form specifying the purpose of the test and the genetic characteristic for which the DNA sample will be tested.  The employer must provide the employee with a copy of the consent form for the employee’s records.  In addition, an employer must inform employees that:
 

  • The test is voluntary;
  • The employee may elect not to have his or her DNA sample tested;
  • The employee may withdraw consent at any time;
  • There are certain risks and benefits of having a genetic test.  Employers must explain:
    • A description of provisions of Oregon law regarding individual rights with respect to genetic information and its confidential nature;
    • A statement of potential consequences regarding insurability, employability, and social discrimination if the test results or information become known;
    • The implications of both positive and negative test results; and
    • The availability of support services, including genetic counseling;
  • It may be in the employee’s best interest to retain the DNA sample for future testing, but the employee has the right to have the sample destroyed after the test has been conducted;
  • There are implications, including insurability, of authorizing disclosure to a third party payer that the genetic test was performed, and the employee has the option of paying the cost of the test out-of-pocket instead of filing an insurance claim; and
  • The employee may submit questions to a genetic counselor or another knowledgeable person and receive answers.

For more information please contact Kara Backus at kbackus@bullardlaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Hawaii

No in Hawaii.

For more information please contact Sarah Wang at SWang@marrjones.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Pennsylvania

Pennsylvania has not enacted a state law that is the equivalent of the Federal Genetic Information Nondiscrimination Act.  Section 89.791 of the PA Code does contain a provision restricting providers of Medicare supplement policies from discriminating on the basis of genetic information.

For more information please contact John Ellis at jellis@ufberglaw.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Virginia

Yes. Pursuant to Va. Code Ann. § 40.1-28.7:1, employers may not request, require, solicit or administer a genetic test to any person as a condition of employment.  Similarly, employers may not refuse to hire, fail to promote, discharge or otherwise adversely affect any terms or conditions of employment of any employee or prospective employee solely on the basis of a genetic characteristic or the results of a genetic test, regardless of how the employer obtained such information or results.  The statute authorizes a private right of action to remedy violations.

For more information please contact Susan Carnell at scarnell@lorengercarnell.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

Answer from Washington

It is unlawful in Washington for employers to require an applicant or employee to provide genetic information (i.e., information regaring inherited characteristics that can be identified via a lab test, family history or medical exam) as a condition of employment or continued employment,  RCW 49.44.180.

For more information please contact Ken Diamond at ken@winterbauerdiamond.com

*Disclaimer: All answers to the Question of the Month are current the day on which they are posted. After this date, the information may subsequently change as a result of laws or rulings. For the most current information, please contact the responding lawyer for each state in which you are interested.

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