Legal Insider: Congressional Committee Passes Genetic Testing for Employees

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Plaza America that specializes in federal employee, security clearance, retirement, and private sector employee matters.

By John V. Berry, Esq.

On March 8, Congress moved forward with bill H.R. 1313, sponsored by Rep. Virginia Foxx (R-N.C.), to enable employers to obtain genetic information about an applicant or employee.

Presently, genetic testing of employees and prospective employees, on anything other than a voluntary basis, is illegal. Genetic testing of employees currently is protected by the Americans with Disabilities Act (ADA) and the 2008 Genetic Information Nondiscrimination Act (GINA). The bill, which was approved by the House Committee on Education and the Workforce, is part of the Preserving Employee Wellness Programs Act and would allow employers to impose penalties of up to 30 percent of the total cost of the employee’s health insurance on those who choose to keep such information private from their employer.

Congress enacted GINA to prohibit discrimination by health insurers and employers based on the genetic information that people carry in their DNA. GINA currently contains an exception, however, that allows employees to voluntarily provide their genetic information as part of a voluntary wellness program. If passed, the bill would change the nature of the voluntariness of providing genetic information and make it clear that employers who offer wellness programs, and also require genetic testing as part of these programs, can legally charge workers who refuse to take the genetic test a higher price for health insurance than workers who will.

If enacted by the full House and Senate, H.R. 1313 would effectively repeal the fundamental genetic and health privacy protections in GINA and the ADA. The new provisions would permit employers, under the guise of workplace wellness programs, to ask employees questions about genetic examinations taken by themselves or their families. Further, an employer could make inquiries about the medical history of employees and other family members. GINA’s requirement that employee genetic information collected as part of a wellness plan only be shared with medical professionals would no longer apply. This could open the door to discrimination by employers on the basis of genetic examinations or family histories.

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