Privacy Issues in the Workplace

compensation, terms, conditions, or privileges of employment because of genetic information regarding the employee or to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as because of genetic information of the employer. Genetic information consists of: Information about an employee’s genetic tests or those of the employee’s family member; or the manifestation of a disease or disorder in the employee’s family members. Information about the sex or age of an individual is not considered genetic information. Medical Information That is Not Genetic Information: It shall not be a violation of this law to use, acquire, or disclose medical information that is not genetic information about a manifested disease, disorder, or pathological condition of an employee including a manifested disease, disease, disorder or pathological condition that may or may not have a genetic basis. IT IS ALSO AN UNLAWFUL PRACTICE FOR AN EMPLOYER TO REQUEST, REQUIRE, OR PURCHASE GENETIC INFORMATION WITH RESPECT TO AN EMPLOYEE OR AN EMPLOYEE’S FAMILY MEMBER, EXCEPT WHERE:

 the information was requested inadvertently;

 health services or genetic services are offered by the employer, including as part of a wellness program;

 the employee provides a prior knowing voluntary written authorization;

 an employer requests family medical history from the employee to comply with FMLA or applicable state laws;  the information is publicly available (but not medical databases or court records);  the information is to monitor the biological effects of toxic substances in the workplace; or  the employer conducts DNA testing for law enforcement purposes but only to the extent that such genetic information is used for DNA markers to detect sample contamination.

Under the EEOC’s final regulations regarding GINA, the inadvertent acquisitions of genetic information does not constitute a violation, such as in situations where a manager or supervisor inadvertently obtains employee genetic information through ordinary Internet searches or overhears a conversation. However, supervisors may not intentionally run a search or request information over a social networking site that is “likely to result in uncovering genetic information.” 138

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 49