Now employers may penalize for health conditions that haven't happened yet

The genomics industry is picking up a head of steam. With it come fears that employees could be penalized for conditions they don't have yet but could develop.

So far we know that in employment issues, you can be discriminated against for anything you say on a social networking site, anything you ‘like' on Facebook, how your name is spelled, how old you are, how much you weigh, if you have kids, and oh, the list goes on and on.

What if I told you now there was a way you could be discriminated against because of health problems you don't yet have but have the predisposition for? With the new genomics industry gaining a head of steam, it's not entirely out of the question.

Companies that specialize in consumer DNA analysis are popping up everywhere. Although some, like Navigenics Inc., of Foster City, California, work only through physicians and corporate wellness programs, some offer their services to everyone.

One such company is 23andme Inc., founded in Mountain View, California, by Anne Wojcicki (the wife of Google co-founder Sergey Brin). For $99, customers get a kit that allows them to collect a saliva sample from which a DNA analysis is made. After about eight weeks, customers learn their personal risk of developing numerous conditions. (What shocked me is the number of conditions that currently can be predicted through DNA analysis--The number is currently 193, but ongoing research continues to push that total up.)

Now, what does this have to do with employment? Well, what would keep an employer from taking you out of consideration for a promotion if he or she knows that that you carry the gene for breast cancer? The easy answer to that would be morals and ethics, but, well, we've seen too many cases where those characteristics don't necessarily come into play.

Is this legal? It depends. Some companies use the test results to determine parameters for corporate wellness programs. Some need them as verification for an employee who is asking for certain accommodations for a condition under the ADA. Smart companies make sure to add language in the contracts (GINA safe harbor wording) that specify they don't want details related to health conditions that don't apply to the issue at hand.

For example, if the employee is given a survey by a company, the company must make it clear that the employee doesn't have to provide genetic information to be eligible for a wellness bonus:

Here's a survey. Questions one through 20 pertain to your family medical history. You do not have to answer these questions to qualify for the $150.

The problem is if a supervisor and employee are friends on Facebook and that employee posts something about a finding from the DNA test, the supervisor can inadvertently obtain genetic information. So, yes, yet another reason to watch what you say on Facebook.