With overwhelming support from both the House and the Senate, President Bush signed the Genetic Information Non-discrimination Act into law in 2008. The act prohibits employers from discriminating against employees on the basis of 'genetic information' and strongly limits the ability of employers to gather genetic information on their employees. Genetic information includes the results of an individual's genetic tests, genetic tests of the individual's family members and the existence of any disease and/or disorder in the individual's family members. The act adds discrimination based upon genetic information to the list of types of discrimination prohibited under Title VII.

The act prohibits employers from not hiring, terminating, classifying or segregating an employee based upon genetic information, as well as retaliation against employees for alleging violations of the act or participating in investigations concerning alleged violations. Further, employers must be extremely cautious in how they gather and maintain any genetic information concerning employees. Information collected must be on "separate forms and in separate medical files", and such records must be kept confidential and stored in the same manner as medical records under the Americans with Disabilities Act.

Employers should update their handbooks and training programmes to make clear that genetic information is protected and that discrimination based upon genetic information is prohibited. Employers that obtain genetic information should ensure they properly have received such information, store it separately as medical information and limit access to and disclosure of the information. Supervisors need to understand the sensitivity surrounding such information and that they cannot use genetic information (howsoever obtained) in making decisions concerning employees.

For further information on this topic please contact Kevin B Leblang or Robert N Holtzman at Kramer Levin Naftalis & Frankel LLP by telephone (+1 212 715 9100) or by fax (+1 212 715 8000) or by email (kleblang@kramerlevin.com or rholtzman@kramerlevin.com).

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