A health care center in Phoenix recently addressed the question of whether it could legally obtain DNA from its male employees.

The facility needed to determine whether any of its workers was responsible for impregnating a woman who had been living at the facility in a vegetative state for 10 years following a drowning.

The facility believed that testing the DNA of the male employees, along with the DNA of the baby, would uncover the person guilty of the misconduct.

A local Arizona paper reported that the company relied on legal advice that the law prohibited the company from collecting the genetic information of employees.

The company engaged law enforcement, who issued subpoenas for the collection of genetic information from the male employees at the facility.

Collecting DNA of an employee violates the Genetic Information Nondiscrimination Act, a federal law passed in 2008 prohibiting genetic information discrimination in employment.

Under the federal law, employers cannot use genetic information to make employment decisions. The law further restricts employers from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.

The Equal Employment Opportunity Commission enforces the employment provisions of the federal genetics law.

When the law was passed, many wondered how and why this would even come up in an employment setting.

Then a few years ago, the case referred to in court as the “devious defecator” brought the law to the forefront.

That case involved an Atlanta company which, in 2012, faced the dilemma of determining who was responsible for defecating in the warehouse of its facility. It decided to conduct genetic testing of employees to match the fecal matter to the genetic information of one or more employees.

In doing so, the company took cheek swabs from the mouth of employees whom it suspected of defecating in the warehouse.

Two employees who were subjected to the testing, but were exonerated, said they suffered humiliation and discrimination, and sued the employer for violation of the federal statute.

While the employer did not plan to use the information for any purpose other than catching the culprit, the court determined that the actions of the employer violated the technical prohibitions of the law. The court held that even though the company did not use the DNA test to identify any genetic traits or to discriminate, the court said the law was clear that you cannot take the genetic test of an employee under these facts.

A jury awarded the men $2.25 million for the company’s violation.

Under the law, employers cannot discriminate against an employee because of genetic information, harass an employee due to genetic information, or retaliate against an employee for expressing rights under the law.

Employers also cannot disclose confidential genetic information.

There are some narrow exceptions to collecting genetic information. Some include where managers inadvertently overhear information about a family member’s illness, genetic information obtained as part of certain wellness programs, collecting family medical history pursuant to federally administered leave laws, and publicly available information.

In addition, there are some extremely narrow circumstances such as those limited employers that require genetic monitoring due to certain toxic substances, and genetic information, or those that engage in DNA testing for law enforcement such as a forensic lab, but the DNA markers can only be used for quality control to detect sample contamination.

Absent these narrow exceptions, employers should not inquire, acquire or, if made aware, use against any employee genetic information.

Karen Michael is an attorney with Richmond-based KarenMichael PLC. She can be reached at kmichael@karenmichaelconsulting.com.

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