Why must an employer tread carefully when it comes to an applicant's genetic information?

Author: Linda Segall, Segall Enterprises

Genetic testing is not permitted under Title II of the Genetic Information Nondiscrimination Act (GINA), which prohibits the use of genetic information in making employment decisions and restricts the acquisition and disclosure of genetic information by an employer. The Equal Employment Opportunity Commission (EEOC) considers genetic information to include:

  • An individual's genetic tests;
  • The genetic tests of a family member;
  • Family medical history;
  • Requests for and receipt of genetic services by an individual or a family member; and
  • Genetic information about a fetus carried by an individual or family member, or about an embryo legally held by the individual or family member using assisted reproductive technology.

Once an individual is hired, an employer may obtain genetic information in limited circumstances where:

  • The employer does not specifically seek the information but acquires it through casual conversations;
  • The employer obtains the information when the employee participates in an employee wellness program, which provides general information to the employer; or
  • The employee provides the information via a request under the Family and Medical Leave Act (FMLA) or similar laws, which require the employee to provide medical histories.

Any genetic information acquired under one of these limited exceptions must be kept strictly confidential and apart from other employee information.