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GENETICS AND EMPLOYMENT

1/19/2010 - Tales from O’Seay’s fables . .

Last week, Bill McGuinness applied for a job as an assembler at Johnson’s Mechanical Engineering Co. in Rabbitt Hill, Kansas. He had a pretty good track record of success in his other jobs but had recently been ill and unable to work. As it turns out, his father John had been ill, as well, and had died at the relatively young age of 59. Although the company had initially seemed interested in hiring Bill, particularly after he made a good impression in the first interview, Bill quickly noticed that the interest had waned and, in the end, he was not offered a job. Someone told Bill, on the side, that the company found out about his family’s history of illness and was afraid this might affect their insurance costs. Bill wasn’t sure about that, but he did think about it . . . .

In 1962, the Nobel Prize for Physiology was awarded to Dr. James D. Watson and Dr. Francis H.C. Crick for their discovery of the structure of deoxyribonucleic acid, which we know today as DNA. DNA structure, they discovered, is in the form of two strands wrapped around each other to form a double helix. Indeed, Dr. Watson tells this story, at least his view of it, in his 1968 book, The Double Helix. The book makes for fascinating reading on a number of fronts and we recommend it to you. Not only is it a top notch adventure story about how the double helix was discovered, it also uncovers some of the inner workings of political intrigue in the scientific community. The science of genetics is on the cutting edge and is growing so fast that new uses and applications for DNA appear almost daily. When we use the term “DNA,” we are speaking of the material that carries genetic information. A gene, we are told by scientists, is a part of DNA that it is found in our cells and contains coded instructions for making everything the body needs. It also determines whether we will be tall or short, or have brown hair or blue eyes, etc. Some genes are associated with diseases and disorders and some genes have unknown uses. We have about 25,000 of them. All of us are aware of how law enforcement uses DNA to prove or disprove the guilt of an accused party, the O.J. Simpson trial notwithstanding. For example, according to the Ft. Lauderdale Sun-Sentinel, Anthony Caravella was released from jail in September of 2009, after having served 26 years of a sentence following his rape and murder conviction. Recent DNA tests showed that he was not the perpetrator and he was set free. If you are interested in genealogy and would like to know where your ancestors came from, www.familytreedna.com, among other sites, will send you a kit containing two vials of liquid and a swabber. You swab the inside of your mouth and then place this material in the vials and send them to the DNA testing laboratory, where the scientists there will analyze your DNA, send you a report of your ancestry and provide you with access to a data base where you can find out additional ancestral information and interact with others who have taken the DNA test. I, myself, have done this and can report that I have Irish ancestors with Viking roots . . . .

In the employment arena, the idea that some employers might use genetic information to discriminate against employees and candidates for employment has been around for some time and some states have passed laws prohibiting it. Effective November 21, 2009, this reached the federal level and now employers are prohibited from discriminating against employees or applicants based on genetic information. “Discrimination” means using genetic information with respect to hiring, or with respect to any terms, conditions or privileges of employment. The regulation also prohibits employers from gathering genetic information on employees (with a few narrow exceptions) and from disclosing it. The term “genetic information” includes information gained from a genetic test from the employee or the employee’s family members, and it also includes information about diseases, illnesses, medical conditions or disorders a family member may have. Thus, discrimination based on “genetic information” is now a new EEOC protected category.

From the Seay Management viewpoint, it seems to us unlikely that an employer might require an employee or candidate for employment to submit to a genetic test, as a condition of employment. On the other hand, it is entirely possible that genetic information might inadvertently appear in an employee’s medical records and that an employer might learn of an employee’s genetic condition, or that of his or her family, through informal conversation. Thus, employers must be on guard to make sure that documents containing genetic information don’t appear in the employee records.

What You Should Do Immediately.

To comply with these new regulations, Seay Management recommends that you take the following actions right away:

1. Add the term “genetic information” to your EEOC policy in your employee handbook and on your company bulletin board.

2. Secure the new EEOC poster that includes the protected category of “genetic information” and replace your current poster with this new one.

3. Don’t make any employment decision based on genetic information regarding applicants, employees or their families.

4. Don’t require employees or candidates for employment to take any genetic tests or submit any genetic information.

5. Be aware that genetic information could come in to your office inadvertently, along with other medical information.

6. Be aware that the term “genetic information” includes information about family members as well as applicants and employees.

7. Make sure that any employee medical information you have on file includes only those documents that are absolutely necessary for insurance, etc., and that you retain these documents in a separate, secure and confidential file.

In the meantime, please let us know if you have any questions about this new protected category “genetic information,” or any other Human Resources question. We appreciate having you as a friend of our firm and look forward to talking soon.



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