San Francisco Employment Privacy Law Lawyer & Attorney : Littler Mendelson Law Firm : Employment Related Privacy Issues

On April 25, 2008, the House passed H.R. 493, The Genetic Information Nondiscrimination Act of 2008 (GINA), a bill that President Bush is expected to sign barring private employers from engaging in genetic discrimination. On first read, I have spotted at least one potential trap for unsuspecting employers if the bill is enacted as drafted.

Section 206(b) of the Act permits disclosure of "genetic information" in only very limited circumstances, which do not include responding to a subpoena or a civil discovery request. Employment litigators, particularly on the defense side, commonly subpoena personnel files, including all medical information from a plaintiff's former employers -- for example, to test a plaintiff's allegation that the defendant/current employer's alleged actions caused emotional distress. Under the bill, as written, an employer who inadvertently produces "genetic information" in response to such a subpoena would violate the Act because the statute does not require a knowing disclosure to support a claim.

The possibility of an inadvertent disclosure of "genetic information" is not hypothetical. As defined in the House bill, that term encompasses "the manifestation of a disease or disorder in family members" of an employee, which could include, for example, an FMLA certification stating that an employee needs FMLA leave because a spouse or child has sickle-cell anemia or Tay-Sachs disease.

If the bill is enacted as written, employers should strongly consider screening all medical information upon receipt to determine whether that information might fall within the broad definition of "genetic information." If so, the information should be filed separately from all other medical information with a note that the information should not be produced except in response to a court order.

For a more detailed discussion of this Act, please see Littler ASAP: Genetic Antidiscrimination Law Creates New Compliance Challenges for Employers by Philip L. Gordon and Jennifer L. Mora.

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The recent death of Major League Baseball pitcher Joe Kennedy is a tragic reminder that employees die.  However, in many ways, the employment relationship lives on, albeit under different terms.  Estates may need to be administered.  Law enforcement may need to investigate the cause of death.  Children may need to know if their deceased parent was diagnosed with a genetically transmitted disease.  How are employers supposed to respond to these requests?  More pointedly, do deceased employees have any privacy rights in their health information?  The short answer is “yes”.

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The rumors are flying: The TV news ran a story last night on the evacuation and de-contamination of the local public school after one of the football players missed Saturday’s game because of infection with the MRSA Superbug.  One of your employees happens to have a son on the football team, and she called in sick on the Monday after the game.  Employees who work in the area of her cubicle have “petitioned” HR not to let the mother return to work until she has submitted written documentation from her physician that she is not infected or contagious.  Where does HR even start to unravel the privacy concerns of the mother and her child, and how should those concerns be weighed against the health interests of the mother’s co-workers? 

The legal analyses related to this issue are among the most complex in the area of workplace privacy, involving the interplay of the Americans with Disabilities Act (ADA); the Family and Medical Leave Act (FMLA); the Health Insurance Portability and Accountability Act of 1996 (HIPAA); state privacy statutes, such as California’s Confidentiality of Medical Information Act; state common law; and, at least in California, state constitutional law. 

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