Utah Protects Employees From Genetic Testing/Information Discrimination

Effective January 1, 2003, Utah joined approximately 30 other states in precluding genetic discrimination in employment. Under the Genetic Testing Privacy Act, Utah employers engaged in hiring, promotion, retention or other related decisions may not: (1) access or take into consideration private genetic information about an individual (2) request an individual to consent to a release of private genetic information (3) request an individual or his blood relative to submit to a genetic test or (4) inquire into or otherwise take into consideration the fact that an individual or his relative has taken or refused to take a genetic test. "Private genetic information" is defined to include information derived from an "inherited gene or genes" or the "presence or absence of a specific DNA marker or markers," either of which have been obtained from a genetic test of the individual's DNA or the DNA of a blood relative.

The act includes two limited exceptions that allow an employer to seek an order compelling disclosure of private genetic information. One of those exceptions is when an individual has placed his or her health at issue in an employment-related judicial or administrative proceeding. The other exception is when the employer has a reasonable basis to believe the individual's health condition poses a "real and unjustifiable safety risk requiring a change or denial of an assignment." The employer's burden of proof is very high and any order allowing the release of the information has to be narrowly drafted to limit disclosure and maintain confidentiality.

After a six-month grace period that expires June 30, 2003, employers who violate the act are subject to a potential civil action for actual damages, plus a maximum $100,000 penalty if the violation is an intentional or willful act, or punitive damages (with no cap) if the violation is a result of a malicious act. The employee is also entitled to reasonable attorneys' fees. These damages apply to each separate violation of the act. Further, the Utah Attorney General has been given power to enforce the statute, including obtaining an injunction, imposing a fine of up to $25,000 and recovering attorneys' fees. Unlike the Utah Anti-discrimination Act, which only applies to employers with 15 or more employees, the Genetic Testing Privacy Act applies to all employers with one or more employees (using the same definition of employer as the Utah Workers' Compensation Act).

Employers in Utah should train their employees and managers on the provisions of the Genetic Testing Privacy Act. They should also include "genetic information" to the class of protected categories (race, national origin, etc...) in their anti-discrimination policies.