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Genetic Testing in the Workplace? Meet GINA

In the 1997 sci-fi thriller Gattaca, virtually every job on earth was determined by a person’s genetic makeup. With the map of the human genome now available for download, science fiction may rapidly become science fact. But U.S. employment laws, to be phased in this month and next September, have stepped in to attempt to eliminate this kind of discrimination before it even gets started.

At least, under most circumstances
Welcome to the Genetic Information Non-Discrimination Act of 2008, known as GINA. Short version: no genetic information obtained by any company can be used to discriminate against any person in employment or in providing health insurance.

Where did this law come from? According to the website of the National Institutes of Health, “the law was needed to help ease concerns about discrimination that might keep some people from getting genetic tests that could benefit their health. The law also enables people to take part in research studies without fear that their DNA information might be used against them in health insurance or the workplace.”

GINA may very well be a solution in search of a problem, but, of course, one never knows. There is only one recorded instance of any American company using genetic information to discriminate in employment, in 2001, and the EEOC stopped it.

The idea of taking your blood to see if you are fit for a job may seem somewhat creepy. And GINA makes most instances of that action illegal and actionable. Nevertheless, blood can be tested for any number of genetic weaknesses. And there may be some legitimate, work- related reasons to do so.

Genetic testing is allowed under GINA in some seemingly very gray areas. Some exceptions in GINA that allow testing of this sort include “inadvertence” by the employer; indirectly obtaining it as a part of a wellness program; as a part of FMLA certification; and where the employer’s blood is being monitored for workplace hazardous substances.

Even under those circumstances, all of the information is to be kept confidential.
The health insurance part of GINA begins in May 09. The employment discrimination part starts in November. GINA does not affect life insurance.

If your employer is asking for blood samples, you may have a cause of action. Any questions on GINA’s applicability to your employment status should be brought to an employment attorney.

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