Effective March 15, 2000, the Michigan legislature amended the Michigan Persons with Disabilities Civil Rights Act (the "Act") to prohibit employers from requiring that applicants or employees submit to genetic testing or provide genetic information. Employers also are prohibited from taking any employment action based on genetic information. Applicants and employees may voluntarily provide genetic information related to health or safety in the workplace. If so, employers are not prohibited from using such volunteered information to protect an employee's health or safety in the workplace. However, employers still are prohibited from obtaining or using genetic information concerning employees, applicants and their family members for any other purpose.
Genetic information is defined broadly and includes both technical information from a genetic test as well as information about an individual's inherited characteristics which can be learned from a family history. The Act defines genetic testing as "the analysis of human DNA, RNA, chromosomes, and those proteins and metabolites used to detect heritable or somatic disease-related genotypes or karyotypes for clinical purposes." Employers are not prohibited from conducting routine physical examinations and analyses and routine chemical analyses of body fluids, such as drug tests, so long as they are not conducted specifically to determine the presence, absence or mutation of a gene or chromosome.
Enforcement of the Act, including these new provisions concerning genetics, is by a private lawsuit or through an administrative complaint to the Michigan Department of Civil Rights.
The Michigan legislature also passed three laws prohibiting insurers and HMOs from requiring members, applicants and their dependents to be genetically tested and from disclosing the results of prior tests.
Currently, there is no comparable federal statute which specifically regulates genetic testing in the workplace, though several bills proscribing discrimination on the basis of genetic testing have been introduced and are pending in Congress. However, an EEOC Commissioner and other civil rights advocates have taken the position that the federal Americans with Disabilities Act prohibits employment discrimination based on genetic information, even though there is no reference to the subject in that statute. Such proponents argue that if an employer has genetic information about an employee and makes an employment decision based on that information, then the employee is protected by ADA because the employer regards the employee as disabled.
Also, in the federal arena, an executive order issued on February 8, 2000 by President Clinton bans federal agencies from discriminating against federal employees based on genetic information.
The Health Insurance Portability and Accountability Act ("HIPAA") is a federal law which prohibits group health plans sponsored by employers from denying eligibility to employees based upon genetic information. In addition, such employee plans cannot deny coverage of a newborn's or newly adopted child's medical problems if the child is signed up for health insurance within 30 days of birth or adoption.
While there are complex issues to be resolved concerning federal preemption of state laws as applied to employer group health plans, it is clear that genetic information cannot be used as an eligibility criterion
.