Describe HIPAA. Discuss the use of genetic information as a form of monitoring.

Question

What will be an ideal response?

Answer 1

Employers are limited in their collection of information through other various forms of testing, such as polygraphs or medical tests. Employers are constrained by a business necessity and relatedness standard or, in the case of polygraphs, by a requirement of reasonable suspicion. With regard to medical information specifically, employers' decisions are not only governed by the Americans with Disabilities Act but also restricted by the Health Insurance Portability and Accountability Act (HIPAA). HIPAA stipulates that employers cannot use "protected health information" in making employment decisions without prior consent. Protected health information includes all medical records or other individually identifiable health information.
In recent years, polygraph and drug testing, physical and electronic surveillance, third-party background checks, and psychological testing have all been used as means to gain information about employees. One area that is sure to provide new questions about privacy is genetic testing. Genetic testing and screening, of both employees and consumers, is a new technology that will offer businesses a wealth of information about potential employees and customers.
The Genetic Information Non-Discrimination Act (GINA) 2008 became effective in November 2009 and prohibits discriminatory treatment in employment based on genetic information.
GINA presents interesting questions since it defines "genetic information" in a more broad sense than one might imagine. Under GINA, one's genetic information is not merely information about him, but also his family's medical history, including any disease or disorder, or genetic test results of a family member. The term "family member" includes a person's dependents and relatives all the way to the fourth degree of kinship. In addition, GINA mandates that employers be extremely careful in terms of how they gather and manage employee genetic information as they are subject to similar conditions to the Americans with Disabilities Act.
GINA does provide for exceptions. For instance, an employer can collect genetic information in order to comply with the Family Medical Leave Act or to monitor the biological effects of toxic substances in the workplace. The employer may also gather publicly available genetic information, from public sources such as newspapers. Finally, though GINA contains a strict confidentiality provision, an employer may release genetic information about an employee under certain specific circumstances:

1. To the employee or member upon request;
2. To an occupational or other health researcher;
3. In response to a court order;
4. To a government official investigating compliance with this Act if the information is relevant to the investigation;
5. In connection with the employee's compliance with the certification provisions of the Family and Medical Leave Act of 1993 or such requirements under state family and medical leave laws; or
6. To a public health agency.