Good Information for Employers To Know: Practical Examples Of Genetic Tests That Are Covered By GINA

It is important for employers to know what constitutes a “genetic test” under GINA because GINA restricts employers from requesting, requiring or purchasing genetic testing information, with limited exceptions. “Genetic tests” are defined by GINA as an analysis of human DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or chromosomal changes. 29 C.F.R. §1635.3(f)(1). For example, a test to determine whether an individual has the genetic variants associated with a predisposition to breast cancer; Huntington’s disease; DNA testing to detect genetic markers associated with information about ancestry; DNA testing that reveals family history, such as paternity tests; and carrier screenings of adults using genetic analysis to determine the risk of conditions such as cystic fibrosis, sickle cell anemia, spinal muscular atrophy are all considered “genetic tests” under GINA. EEOC: Background Information on EEOC Final Rule on Title II of GINA, question 6.

Examples of tests that are not genetic tests include: an analysis of proteins or metabolites that does not detect genotypes, mutations or chromosomal changes; a medical examination that tests for the presence of a virus that is not composed of human DNA, RNA, chromosomes, proteins, or metabolites; a test for infectious and communicable disease that may be transmitted through food handling; complete blood counts, cholesterol tests, or liver-function tests; a HIV test; and a test for the presence of drugs or alcohol. EEOC: Background Information on EEOC Final Rule on Title II of GINA, question 6; 29 C.F.R. §1635.3(f)(2). Similarly, functional capacity evaluations, pre-employment physicals, fitness for duty evaluations, and post offer medical examinations are not barred by GINA unless such examinations include tests involving DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or chromosomal changes.

For more information regarding GINA or any other important federal statute, please contact Robert Seybert at rseybert@baylorevnen.com or any of the firm’s employment law attorneys at (402) 475-1075.