E-Newsletter

June 2008

The New Federal Genetic Information Non-Discrimination Act: Its Impact on Employers and How It Compares to Wisconsin Law

On May 21, 2008, President Bush signed into law the Genetic Information Nondiscrimination Act of 2008 (GINA). GINA prohibits employment discrimination based on genetic information with respect to employment and health insurance. GINA makes it an unlawful employment practice for an employer to discriminate against an individual on the basis of genetic information in the following ways:

• requesting, requiring, or purchasing an employee's genetic information or the genetic information of an employee's family member;
  
  
• failing to hire, discharging, or otherwise discriminating against any employee with respect to compensation, terms, conditions or privileges of employment on the basis of genetic information;
  
  
• discriminating against an individual in the admission to or employment in any program for apprenticeships or other training or retraining on the basis of genetic information;
  
  
• limiting, segregating, or classifying employees in any way that would tend to deprive any employee of employment opportunities or adversely affect their status as employees on the basis of genetic information.

Wisconsin law has prohibited employment discrimination based on genetic tests since 1991. Like GINA, Wisconsin Statute Section 111.372 prohibits employers from soliciting, requesting, or administering a genetic test as a condition of employment. Both laws also prohibit an employer from utilizing genetic information or the result of a genetic test in any way that will affect an employee's terms, conditions, or privileges of employment and go on to prohibit employer retaliation against an employee who complains or files a charge based on genetic testing/information discrimination.

While there are many similarities between GINA and the state law, there are also several differences. Wisconsin law prohibits discrimination against "any person who obtains a genetic test," while GINA prohibits discrimination "because of genetic information." Therefore, GINA will most likely be construed more broadly than Wisconsin law. Further, Wisconsin law, unlike GINA, prohibits any individual from selling genetic information of an employee to an employer or from interpreting a genetic test of an employee for an employer.

While both laws have provisions addressing confidentiality, those provisions differ. Wisconsin law, unlike GINA, makes it unlawful for any person to disclose to an employer that an employee has taken a genetic test and/or the results of that test. GINA does not make it unlawful for an outside party to disclose such information to the employer. However, GINA does make it unlawful, with a few exceptions, for an employer who possesses genetic information about an employee to disclose that information to an outside party. GINA also requires an employer to keep any genetic information that it possesses in a separate file and to treat such information as a confidential medical record. Wisconsin law has no such requirement.

Both Wisconsin law and GINA have exceptions to their prohibitions on requesting or requiring genetic information or testing in the employment context. Wisconsin law makes an exception where an employee requests the genetic test, and provides written and informed consent and the test is for the purpose of (a) investigating a worker's compensation claim or (b) determining susceptibility or level of exposure to potentially toxic substances in the workplace. GINA makes an exception (a) where an employer inadvertently requests or requires medical history of the employee or family member; (b) where such information is required to comply with the certification requirements under the Family Medical Leave Act; (c) where such information is to be used for genetic monitoring of biological effects of toxic substances in the workplace; (d) where health or genetic services such as a wellness program are offered by the employer; (e) where the employee provides prior, knowing, voluntary and written authorization; and (f) where the employer purchases documents that are commercially or publicly available that include family medical histories, such as a newspaper or periodical.

Although there are several differences between GINA and Wisconsin law, GINA makes clear that where state law is more stringent than GINA, an employer must still comply with that state law.

The GINA provisions prohibiting employment discrimination based on genetic information will take effect in November 2009. As employers continue to review and audit their pre-employment and medical testing policies, it is important to make sure that there is not a genetic testing component in those policies.

For more information about discrimination or other employment law issues, contact educational services at (414)423-1330.