Genetic privacy litigation on rise

Companies that demand employees provide medical records or family medical history during pre-employment physicals or fitness-for-duty exams are being challenged under the federal Genetic Nondiscrimination Act of 2008 (GINA) and Illinois’ Genetic Information Privacy Act. Under the laws, an employer can ask for disability information or conduct medical examinations only after giving a conditional job offer and only if it does so for everyone in the same job category.

Once the employer requests such information, it must provide explicit disclosure to the worker regarding the data being collected and how they will be used to avoid violations under the laws. Companies that have been challenged for asking for family medical history have argued that general family medical history doesn’t meet the definition of genetic information and if the information is unintentionally collected, employers are protected by GINA’s safe harbor.

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