Protecting Employee Genetic Information

September 18, 2017

Topics: Harassment Discrimination and Retaliation

Genetics can reveal (a) health conditions that run in families; (b) an individual’s risks of developing certain medical conditions; and (c) an individual’s risks of passing along certain health conditions to his or her children.  Many individuals obtain genetic information to make lifestyle choices and medical decisions to improve their health and the health of their families.

Employers may think that this information is helpful because it can predict which employees are less likely to be absent due to their own or their family’s medical conditions, or who are less likely to use insurance coverage for costly medical procedures or treatments.  Several laws, however, protect this type of information in the employment context.

Under federal and New York State law, employers generally are prohibited from obtaining or using employees’ “genetic information” to make employment decisions.  In certain situation, having the information at all can be problematic.

“Genetic information” includes information about the employee’s genetic tests, information about the employee’s family members’ genetic tests, the employee’s family medical history, the employee’s use of genetic counseling and other genetic services, and the employee’s participation in genetic research.

The law imposes four restrictions on employers relating to employee genetic information:

  1. Discrimination. Employers may not make any employment decisions based on employees’ genetic information.  More specifically, employers may not use genetic information to make decisions regarding hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment.  This can include learning that an applicant’s mother passed away from breast cancer, thinking that this employee, too, has the breast cancer gene, and failing to hire her for fear of absences or expensive medical treatment.  This action would be unlawful.
  2. Harassment. Employers may not harass any employee based on the employee’s genetic information.
  3. Retaliation. Employers may not retaliate against any employee who claims discrimination or harassment based on the employee’s genetic information.
  4. Obtaining and Keeping Information. Employers may not obtain or acquire their employees’ genetic information, with some narrow exceptions that we will not discuss here.  To the extent that employers obtain genetic information of their employees, employers must keep that information confidential and in a separate medical file.  Employers may not disclose their employees’ genetic information unless they are required to do so by a government agency or court order.

Employers should consult with counsel regarding employment policies and practices that best address the needs of the company while complying with federal, state and local laws applicable to the company’s place of business.