Can You Use Genetic Testing Information

Issue:
As a routine matter, you review your company’s employment application annually. As you read the section on genetic information, you wonder if you can continue to ask whether applicants have undergone genetic testing and what the results are, or whether they would be willing to undergo genetic testing. You remember reading in an industry newsletter that some states are now prohibiting discrimination based on genetic information. Should you request a revision to your employment application?

Answer:
The answer depends on which states are involved. A growing number of states (21) have laws on the books (as of April 1999) limiting the use of genetic information in the workplace. Among those 21 states, some permit inquiries and testing, under narrow circumstances, for susceptibility to potentially toxic chemicals and substances in the workplace. Most states prohibit discrimination and employment decisions based on genetic information. Currently, there is no federal law governing the use of genetic testing and genetic information in the workplace.

What does your state require?
Briefly, these are the rules in the states having genetic information protection laws:

Arizona employers may not consider genetic test results when making employment decisions. Ariz RevStatAnn, Sec 41-1463.

California prohibits employment discrimination based on medical conditions, including genetic characteristics. Cal GovernmentCode, Sec 12926.

Connecticut prohibits employment discrimination based on genetic information and prohibits employers from requesting genetic information from employees or job applicants. Conn GenStat, Sec 46a-60(a)(11).

Delaware prohibits employers from intentionally collecting genetic information from employees, job applicants or family members of employees or job applicants, unless the employer can show that the information is consistent with business necessity or is related to the employer’s retirement policy or administration of an employee welfare or benefit plan. Del CodeAnn, Sec 711(e).

Florida allows employers to have DNA analysis performed with the informed consent of the person to be tested. (DNA analysis includes genetic testing.) If DNA or genetic information is used in any employment decision that results in adverse action, the test must be repeated to verify the accuracy of the first analysis. Fla Stat, Sec 760.40.

Illinois requires that genetic testing information be treated in a manner that is consistent with federal law, including the ADA. The law particularly outlines to whom the results of genetic testing may be disclosed. 410 ILCS 513/1 through 513/45.

Iowa employers may not require or administer genetic testing as a condition of employment or affect the terms, conditions or privileges of employment of anyone who obtains a genetic test. Employees, however, may give written consent to genetic testing to determine their susceptibility to potentially toxic chemicals or substances in the workplace, so long as the employer does not take any action that adversely affects the person’s employment based on the resulting genetic information. Iowa Code, Sec 729.6.

Kansas employers may not seek to obtain or use genetic screening or testing information of an employee or prospective employee to distinguish, discriminate, or restrict any right or benefit otherwise available to an employee or prospective employee. Also, employers may not subject employees or prospective employees to any genetic screening or test. KSA Sec 44-1009.

Maine employers may not discriminate against employees or job applicants on the basis of genetic information, refusal to submit to genetic testing, refusal to make available the results of genetic testing or because an individual has undergone genetic testing or genetic counseling, except when based on a bona fide occupational qualification. 5 MRSA 19302.

Missouri employers may not discriminate against employees or prospective employees based on genetic information. The restriction does not prohibit genetic testing with the written permission of the employee or job applicant or the use of genetic information that is directly related to the person’s ability to perform an assigned job. Mo RevStat, Sec 595.105.

New Hampshire employers may not require genetic testing as a condition of employment and may not make employment decisions based on genetic information. Employees may request genetic testing in writing and with informed consent to investigate a workers’ compensation claim or to determine the employee’s susceptibility or level of exposure to potentially toxic substances in the workplace. Employers, however, may not use this information in making employment decisions. NH RevStatAnn, Ch 141-H:3.

New Jersey employers may not discriminate against employees or job applicants on the basis of genetic information, a refusal to submit to genetic testing or refusal to make available the results of genetic testing. NJ RevStat, Secs 10:5-5 and 10:5-12.

New Mexico prohibits the collection and retention of genetic information without the informed, written consent of the employee or the employee’s representative. MN StatAnn, Sec 24-21-3.

New York employers may not make genetic testing or the providing of genetic information a condition of employment, unless a specific genetic test is directly related to the occupational environment. Employees may request genetic testing, but results may not be used by employers to take adverse employment action. NY HumanRightsLaw, Sec 296(19).

North Carolina employers may not discriminate against employees or job applicants who request genetic testing or counseling services or on the basis of genetic information about an employee or an employee’s family member. NC GenStat, Sec 95-28.1A.

Oklahoma employers may not discriminate against employees or job applicants based on genetic information, except in the determination of insurance benefits. Okla Stat, 3614.1.

Oregon employers may not obtain or use genetic information to discriminate against employees or job applicants, unless the employee or job applicant consents to testing to determine a bona fide occupational qualification. Ore RevStat, Sec 659.036.

Rhode Island employers may not make genetic testing a condition of employment and may not discriminate against employees or job applicants based on genetic information. RI GenLaws, Sec 28-6.7-1.

Texas employers may not condition employment decisions on genetic information or on a refusal to submit to genetic testing. Tex LaborCode, Sec 21.402.

Vermont employers may not discriminate against employees or job applicants on the basis of genetic information. 18 VSA 9333.

Wisconsin employers may not require genetic testing as a condition of employment or discriminate against employees who undergo genetic testing. Employees may request genetic testing in writing for the investigation of a workers’ compensation claim or for determining the employee’s susceptibility to potentially toxic chemicals or substances in the workplace. Employers may not use the requested information to make any adverse employment decisions. Wisc Stat, Secs 111.37(7m) and 111.372.

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