Edit Law: NM. SB 445. Uniform Protection of Genetic Information in Employment Act.

You do not have permission to edit this page, for the following reason:

The action you have requested is limited to users in the group: Users.

Short title:
Official text:
Country/Jurisdiction:
State or province:
Regulatory bodies:
Date enacted:
Scope of the law:
Links to court cases or regulatory ruling:
Short summary introduction:
Text of the law:	:'''SENATE BILL 445''' :'''51st legislature - STATE OF NEW MEXICO - first session, 2013''' :AN ACT :RELATING TO EMPLOYMENT; ENACTING THE UNIFORM PROTECTION OF GENETIC INFORMATION IN EMPLOYMENT ACT; AMENDING THE GENETIC INFORMATION PRIVACY ACT. :''BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:'' :'''SECTION 1.''' [NEW MATERIAL] SHORT TITLE.--Sections 1 through 26 of this act may be cited as the "Uniform Protection of Genetic Information in Employment Act". :'''SECTION 2.''' [NEW MATERIAL] DEFINITIONS.--As used in the Uniform Protection of Genetic Information in Employment Act: ::A. "credentialing authority" means a person that provides a license, registration or credential or certifies competence necessary for an individual to qualify for employment or to participate in an occupation or profession; ::B. "DNA" means deoxyribonucleic acid; ::C. "employee": :::(1) means: ::::(a) an individual who is employed, was formerly employed or is applying for employment with a person that has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year; ::::(b) an individual who uses, formerly used or is applying to use the services of an employment agency; ::::(c) a labor organization member; ::::(d) an apprentice, trainee, former apprentice, former trainee or applicant for an apprenticeship or other training or retraining program; or ::::(e) an individual or applicant considered by a credentialing authority; and :::(2) does not include an independent contractor; ::D. "employer" means a person, or an agent of a person, that employs an employee defined in Subparagraph (a) of Paragraph (1) of Subsection C of this section; ::E. "employment agency" means a person, or an agent of a person, that regularly undertakes, with or without compensation, to procure one or more employees for an employer or to procure for one or more employees opportunities to work for an employer; ::F. "employment entity" means an employer, employment agency, labor organization, credentialing authority or labor-management committee; ::G. "family medical history" means information about a manifested disease or disorder in an individual's family member; :: H. "family member" means an individual, whether living or deceased, who: :::(1) is related by blood to an employee and is or at any time was the employee's child, parent, sibling, half-sibling, niece, nephew, aunt, uncle, grandchild, grandparent, first cousin, great-grandchild, great- grandparent, first cousin once removed, great-aunt, great-uncle, great-great-grandchild or great-great-grandparent; :::(2) is covered or is eligible to be covered by an insurance or other benefit program provided to the employee by an employment entity; or :::(3) has or at any time had one of the relationships specified in Paragraph (1) of this subsection to an individual described in Paragraph (2) of this subsection; ::I. "genetic condition" includes a genetic trait and a genetic disease or disorder; ::J. "genetic counseling" includes: :::(1) providing an individual with an assessment of the individual's genetic risk for an inherited genetic condition by interpreting family medical histories; :::(2) educating an individual about the inheritance, testing, management or prevention of a genetic condition using an approach that promotes the individual's autonomy and self-direction in decision-making; :::(3) helping an individual understand the risks and benefits of testing for a genetic trait to promote informed decision-making about whether to undergo genetic testing; :::(4) communicating and interpreting test results; and :::(5) providing support, informational resources and referrals as appropriate to help an individual adapt to the medical, psychological and familial implications of having, or being at risk of having, a genetic condition; ::K. "genetic education" means the process by which an individual acquires information about an existing or suspected genetic condition of the individual or a family member of the individual; ::L. "genetic information" means information, other than information about the age or sex of an individual or a family member of the individual, about: :::(1) the individual's genetic test; :::(2) a genetic test of the family member; :::(3) the individual's family medical history; :::(4) a request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by the individual or the family member; or :::(5) a genetic test of: ::::(a) a fetus carried by the individual or the family member of the individual; or ::::(b) an embryo legally held by the individual or the family member; ::M. "genetic monitoring" means a periodic examination of an employee to evaluate acquired modification to the employee's genetic material, such as chromosomal damage or evidence of increased occurrence of mutations, that may have developed in the course of employment due to exposure to workplace conditions, conducted to identify, evaluate and respond to the effects of, or control adverse environmental exposures in, the workplace; ::N. "genetic service" means a genetic test, genetic counseling or genetic education; ::O. "genetic test" means an analysis of human DNA, RNA, chromosomes, proteins or metabolites that detects genotypes, mutations or chromosomal changes. "Genetic test" does not include an analysis of proteins or metabolites that does not detect genotypes, mutations or chromosomal changes; ::P. "individually identifiable genetic information" means an individual's genetic information that includes an identification of the individual or information that could reasonably be used to identify the individual; ::Q. "labor-management committee" means a person, or an agent of a person, that establishes, offers or controls apprenticeship or other training or retraining programs; :: R. "labor organization" means an organization, or an agent of the organization, in which employees participate, that exists for the purpose, in whole or in part, of dealing with an employer concerning grievances, labor disputes, wages, rates of pay, hours or other terms or conditions of employment; ::S. "labor organization member" means a member, a former member or an applicant for membership in a labor organization; ::T. "manifested" means that a disease, disorder or pathological condition of an individual has been or reasonably could be diagnosed by a health care professional with appropriate training and expertise in the relevant field of medicine. "Manifested" does not include a disease, disorder or pathological condition if the diagnosis is based principally on genetic information; ::U. "person" means an individual, corporation, business trust, statutory trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency or instrumentality or any other legal or commercial entity; ::V. "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form; ::W. "RNA" means ribonucleic acid; ::X. "sign" means, with present intent to authenticate or adopt a record: :::(1) to execute or adopt a tangible symbol; or :::(2) to attach to or logically associate with the record an electronic symbol, sound or process; and ::Y. "tribunal" means a court, arbitral tribunal or administrative agency acting in an adjudicatory capacity. :'''SECTION 3.''' [NEW MATERIAL] APPLICABILITY.-- ::A. The provisions of the Uniform Protection of Genetic Information in Employment Act on employee access to genetic information in Section 18 of that act, confidentiality and retention of genetic information in Section 19 of that act and disclosure of genetic information in Sections 20 and 21 of that act apply to genetic information possessed by an employment entity regardless of when the information was acquired. ::B. The provisions of the Uniform Protection of Genetic Information in Employment Act on acquisition of genetic information by an employment entity in Sections 5 through 12 of that act, genetic testing in Section 13 of that act, authorization by an employee or a family member of an employee for acquisition or testing in Sections 14 through 16 of that act and use of genetic information in Section 17 of that act apply only to actions taken on or after January 1, 2014. :'''SECTION 4.''' [NEW MATERIAL] MEDICAL INFORMATION THAT IS NOT GENETIC INFORMATION.--An employment entity's acquisition, use, retention or disclosure of medical information that is not genetic information about a manifested disease, disorder or pathological condition of an employee or a family member of an employee does not violate the Uniform Protection of Genetic Information in Employment Act even if the manifested disease, disorder or pathological condition has or may have a genetic basis. :{{SectionHarm\|Section='''SECTION 5.''' [NEW MATERIAL] GENERAL PROHIBITION ON ACQUISITION OF GENETIC INFORMATION--INADVERTENTLY OBTAINED GENETIC INFORMATION.--\|Harms= Interrogation, Decisional Interference}} ::A. Except as otherwise provided in the Uniform Protection of Genetic Information in Employment Act, an employment entity shall not: :::(1) request, require, purchase or otherwise acquire genetic information of an employee or a family member of the employee; or :::(2) unless allowed by law other than the Uniform Protection of Genetic Information in Employment Act, require, offer or provide a genetic test to an employee or a family member of the employee. ::B. It is not a violation of the Uniform Protection of Genetic Information in Employment Act if an employment entity inadvertently requests or acquires genetic information of an employee or a family member of the employee. ::C. An employment entity, upon learning that it has inadvertently acquired genetic information of an employee or a family member of the employee, shall promptly: :::(1) destroy the genetic information if it is contained in a record; :::(2) take appropriate action to prevent any use by the employment entity or any other person of the genetic information; :::(3) inform the employee that the employment entity inadvertently obtained the genetic information and that the genetic information has been destroyed; and :::(4) allow the employee access to the employee's personnel file, or another analogous record, to confirm that the employment entity has not retained genetic information of the employee or family member of the employee. :{{SectionHarm\|Section='''SECTION 6.''' [NEW MATERIAL] EXCEPTION FOR VOLUNTARY SUBMISSION OF GENETIC INFORMATION BY EMPLOYEE.--An employment entity may acquire and use an employee's genetic information if:\|Harms= Interrogation, Decisional Interference}} ::A. the employee voluntarily submits the genetic information to the employment entity and authorizes the employment entity's acquisition and use of the information in accordance with Section 14 of the Uniform Protection of Genetic Information in Employment Act; and :: B. the employment entity uses the genetic information only for the purpose authorized by the employee. :'''SECTION 7.''' [NEW MATERIAL] EXCEPTION FOR INFORMATION UNDER FAMILY AND MEDICAL LEAVE ACT.--An employment entity may request or require relevant family medical history from an employee: ::A. to comply with the certification provisions of the federal Family and Medical Leave Act of 1993, 29 U.S.C. Section 2613; or ::B. under a policy of the employment entity that is applicable to all employees and that permits an employee to use leave to care for a sick family member and requires an employee to substantiate the need for leave by providing information about the health condition of the family member. :'''SECTION 8.''' [NEW MATERIAL] EXCEPTION FOR INFORMATION IN PUBLIC DOCUMENT.-- ::A. Except as otherwise provided in Subsection B of this section, an employment entity may obtain a document that is publicly available, including a newspaper, magazine, periodical or book, even if it contains genetic information of an employee or family member of an employee. ::B. An employment entity shall not obtain genetic information of an employee or a family member of an employee by purchasing medical or court record databases. :'''SECTION 9.''' [NEW MATERIAL] EXCEPTION FOR INFORMATION AND TESTING FOR VOLUNTARY HEALTH OR GENETIC SERVICES.--An employment entity may acquire genetic information of an employee or a family member of the employee and may offer and provide genetic testing to the employee or family member in accordance with Section 13 of the Uniform Protection of Genetic Information in Employment Act for use in providing voluntary health or genetic services to the employee or family member, including as part of a voluntary wellness program, if: ::A. the employee or family member of the employee authorizes the employment entity to acquire genetic information or provide genetic testing in accordance with Section 14 of the Uniform Protection of Genetic Information in Employment Act; ::B. individually identifiable genetic information of the employee or family member is used only to provide health and genetic services to the employee or family member; ::C. individually identifiable genetic information is provided only to one or more of the following: :::(1) the employee or, if a family member is receiving genetic services, only to the family member; :::(2) a health care professional, if designated by the employee or family member; and :::(3) a licensed health care professional or board-certified genetic counselor involved in providing the employment entity's genetic services; and ::D. except for a disclosure pursuant to Paragraph (3) of Subsection C of this section, genetic information shall not be disclosed to the employment entity except in an aggregate form that does not disclose the identity of the individual employee or family member. :{{SectionHarm\|Section='''SECTION 10.''' [NEW MATERIAL] EXCEPTION FOR INFORMATION AND TESTING FOR GENETIC MONITORING.\|Harms= Surveillance, Interrogation, Identification}} ::--An employment entity may acquire an employee's genetic information and may offer and provide genetic testing to an employee to conduct genetic monitoring of the biological effects of workplace conditions if: ::A. the employment entity provides notice in a record of the genetic monitoring to the employee; ::B. the genetic monitoring is: :::(1) required by state or federal law; or :::(2) authorized by the employee in accordance with Section 14 of the Uniform Protection of Genetic Information in Employment Act; ::C. the genetic monitoring is in compliance with: :::(1) federal genetic monitoring law, including the federal Occupational Safety and Health Act of 1970, 29 U.S.C. Section 651 et seq., the Federal Mine Safety and Health Act of 1977, 30 U.S.C. Section 801 et seq., or the federal Atomic Energy Act of 1954, 42 U.S.C. Section 2011 et seq., and regulations adopted pursuant to those acts; and ::(2) the state's genetic monitoring law, including rules adopted pursuant to the federal Occupational Safety and Health Act of 1970, 29 U.S.C. Section 651 et seq.; ::D. the employment entity pays for the genetic testing and the genetic counseling required by Section 13 of the Uniform Protection of Genetic Information in Employment Act; ::E. individually identifiable genetic information is provided only to one or more of the following: :::(1) the employee; :::(2) a health care professional if designated by the employee; and :::(3) a licensed health care professional or board-certified genetic counselor involved in providing the employment entity's monitoring program; and ::{{SectionHarm\|Section=F. except for disclosure pursuant to Paragraph (3) of Subsection C of this section, genetic information shall not be disclosed to the employment entity except in an aggregate form that does not disclose the identity of the employee.\|Harms= Disclosure}} :{{SectionHarm\|Section='''SECTION 11.''' [NEW MATERIAL] EXCEPTION FOR CERTAIN EMPLOYERS THAT CONDUCT DNA ANALYSES.--An employer that conducts DNA analyses for law enforcement purposes at a forensic laboratory or for the purpose of identifying human remains may request or require genetic information or genetic testing of an employee to the extent necessary to analyze DNA identification markers for quality control to detect sample contamination by DNA of the employee.\|Harms= Interrogation, Decisional Interference}} :{{SectionHarm\|Section='''SECTION 12.''' [NEW MATERIAL] EXCEPTION FOR CERTAIN LEGAL PROCEEDINGS.--If an employee places the employee's health at issue in a proceeding before a tribunal in which an employment entity is a party, the employment entity may obtain in the proceeding genetic information about the employee without the employee's authorization only if: ::A. the genetic information is relevant to a claim or defense in the proceeding; ::B. on a motion by the employment entity, a tribunal orders the employee to take a genetic test or provide genetic information after finding that the genetic information is necessary in the interest of justice to resolve the proceeding and is otherwise unavailable; ::C. the employment entity pays for the genetic test if a test is ordered pursuant to Subsection B of this section; and ::D. the tribunal grants a protective order to protect the privacy of the genetic information.\|Harms= Interrogation, Decisional Interference}} :'''SECTION 13.''' [NEW MATERIAL] REQUIREMENTS FOR GENETIC TESTING.--An employment entity that provides a genetic test to an employee or family member of the employee as part of health or genetic services pursuant to Section 9 of the Uniform Protection of Genetic Information in Employment Act or for genetic monitoring pursuant to Section 10 of that act shall: ::A. provide genetic counseling about the risks and benefits of a genetic test before the individual authorizes the test pursuant to Section 14 of the Uniform Protection of Genetic Information in Employment Act unless: :::(1) the individual knowingly and voluntarily waives counseling before the authorization in a signed record that contains information about the benefits of genetic counseling; or :::(2) the test is part of genetic monitoring required by state or federal law pursuant to Paragraph (1) of Subsection B of Section 10 of the Uniform Protection of Genetic Information in Employment Act; ::B. unless the individual directs otherwise, require the testing organization to report the test result to the individual and any health care professional designated by the individual; ::C. unless the individual directs otherwise, provide genetic counseling for the individual about a test result that indicates a disease or disorder or increased risk for a disease or disorder; ::D. require the destruction of the individual's biological sample obtained for the test as soon as practicable after the test as soon as practicable after the test is completed, unless retention of the sample is: ::(1) knowingly and voluntarily authorized by the individual in a record signed by the individual; :::(2) permitted by law other than the Uniform Protection of Genetic Information in Employment Act; or :::(3) ordered by a tribunal; and ::E. require the destruction or expungement of information generated from the biological sample other than the authorized test as soon as practicable after the test is completed unless retention of the information is: :::(1) knowingly and voluntarily authorized by the individual in a record signed by the individual; :::(2) permitted by law other than the Uniform Protection of Genetic Information in Employment Act; or :::(3) ordered by a tribunal. :'''SECTION 14.''' [NEW MATERIAL] EMPLOYEE AUTHORIZATION FOR ACQUISITION OF GENETIC INFORMATION AND GENETIC TESTING.-- ::A. Except as otherwise provided by law other than the Uniform Protection of Genetic Information in Employment Act, an authorization of an employee or a family member of the employee for an employment entity to acquire the individual's genetic information or provide a genetic test shall be knowing and voluntary and indicated in a record signed by the individual before the acquisition or test. An employment entity that receives an authorization may use the genetic information or analyze a genetic test only in accordance with the authorization. The authorization shall not expand the authority of the employment entity to acquire or use genetic information or to provide genetic testing beyond that permitted by the Uniform Protection of Genetic Information in Employment Act. The authorization shall not waive any right of the individual pursuant to federal law or the law of New Mexico. The employment entity shall provide a copy of the authorization to the individual who signed the authorization. ::B. An authorization for an employment entity to acquire genetic information of an employee or a family member of the employee pursuant to Section 6 or 9 of the Uniform Protection of Genetic Information in Employment Act or Paragraph (2) of Subsection B of Section 10 of that act shall: :::(1) describe the type of information that will be acquired; :::(2) describe the authorized uses of the information; :::(3) describe restrictions on disclosure of the information; and :::(4) state that the individual is entitled to a copy of the authorization. ::C. An authorization for an employment entity to provide a genetic test of an employee or family member of the employee pursuant to Section 9 of the Uniform Protection of Genetic Information in Employment Act or Paragraph (2) of Subsection B of Section 10 of that act shall: :::(1) describe the test to be performed, its purpose and the authorized uses of the test result; :::(2) inform the individual that the authorized test will be analyzed only for the purposes specified in the purposes specified in the authorization; :::(3) explain the benefit of receiving genetic counseling about the risks and benefits of the test before the individual authorizes the test; :::(4) inform the individual that the employment entity is obligated to provide genetic counseling before the individual authorizes the test, unless the individual waives genetic counseling; :::(5) if the test is part of a genetic monitoring program, inform the individual that the employment entity is obligated to pay for genetic counseling before the individual authorizes the test, unless the individual waives genetic counseling; :::(6) inform the individual that the test result will be reported to the individual and a health care professional designated by the individual, unless the individual directs otherwise; :::(7) explain the benefit of receiving genetic counseling about a test result that indicates a disease or disorder or increased risk for a disease or disorder and inform the individual that the employment entity is obligated to provide genetic counseling about the test result, unless the individual waives genetic counseling; :::(8) if the test is part of a genetic monitoring program, inform the individual that the employment entity is obligated to pay for genetic counseling about a test result that indicates a disease or disorder or increased risk for a disease or disorder, unless the individual waives genetic counseling; :::(9) include an opportunity for the individual to provide directions in a record about reporting test results and genetic counseling; :::(10) inform the individual that the individual's biological sample will be destroyed as soon as practicable after the test is completed, unless the individual authorizes retention of the sample or retention is permitted by law other than the Uniform Protection of Genetic Information in Employment Act or otherwise ordered by a tribunal; :::(11) inform the individual that data generated in the testing process that are not relevant to the authorized test will be destroyed or expunged as soon as practicable after the test is completed, unless the individual authorizes retention of the information, retention is permitted by law other than the Uniform Protection of Genetic Information in Employment Act or otherwise ordered by a tribunal; :::(12) describe restrictions on disclosures of the test result; and :::(13) state that the individual is entitled to a copy of the authorization. :'''SECTION 15.''' [NEW MATERIAL] FORM FOR AUTHORIZATION FOR ACQUISITION OF GENETIC INFORMATION.--A completed and signed authorization substantially in the following form satisfies Subsection B of Section 14 of the Uniform Protection of Genetic Information in Employment Act. :{{SectionHarm\|Section='''NOTICE CONCERNING DISCLOSURE OF YOUR GENETIC INFORMATION''' :If this genetic information is provided for a voluntary genetic monitoring program or a voluntary program that provides health and genetic services, only you, a health care professional whom you designate, and health care professionals involved in providing the program will have access to your individual genetic information. Otherwise, genetic information except in an aggregate form that will not identify you. However, your genetic information may be disclosed: 1) to certain health researchers; 2) to government officials investigating compliance with laws protecting the privacy of genetic information or prohibiting genetic discrimination; 3) to a public health agency if the information concerns a life-threatening contagious disease; 4) if expressly ordered by a court, arbitral tribunal or administrative agency; or 5) if you request and authorize a disclosure.\|Harms= Disclosure}} :'''SECTION 16.''' [NEW MATERIAL] FORM FOR AUTHORIZATION OF GENETIC TESTING.--A completed and signed authorization substantially in the following form satisfies Subsection C of Section 14 of the Uniform Protection of Genetic Information in Employment Act. :'''LIMITED AUTHORIZATION''' :Only the genetic tests that you authorize on this form will be performed on your biological sample. These tests are voluntary. :'''AVAILABILITY OF GENETIC COUNSELING BEFORE SIGNING THIS AUTHORIZATION''' :Before you complete this authorization, it is highly recommended that you receive genetic counseling. Genetic counseling will help you assess your risk for an inherited condition based on your family medical history and will help you understand the options for prevention and management of genetic conditions. It will help you understand and evaluate the risks, benefits and consequences for you and your family of having the test(s) listed below. :'''REPORTING TEST RESULTS AND GENETIC COUNSELING''' :The test results will be reported to you and to a health care professional whom you designate unless you direct otherwise. It is highly recommended that you receive genetic counseling about the test results. Genetic counseling is important for understanding the test results in the context of your medical and family history. It can also provide you with support, informational resources and referrals, as appropriate, that can help you adapt to the implications of being at risk of a genetic condition. _________________________ will provide to the test results of the individuals who authorize this test except in an aggregate form that will not identify you. However, the test results may be disclosed: 1) to certain health researchers; 2) to government officials investigating compliance with laws protecting the privacy of genetic information or prohibiting genetic discrimination; 3) if expressly ordered by a court, arbitral tribunal or administrative agency; or 4) if you request and authorize a disclosure. :'''DESTRUCTION OF YOUR BIOLOGICAL SAMPLE AND TESTING DATA''' :After the genetic test, your biological sample and data that are not necessary for the test you authorized will be destroyed as soon as practicable unless you authorize otherwise in writing or a court, arbitral tribunal or administrative agency requires retention of the sample. :'''YOUR LEGAL RIGHTS''' :By signing this authorization, you do not waive any legal rights to which you are entitled. You are entitled to a copy of this authorization. :'''SECTION 17.''' [NEW MATERIAL] PROHIBITION OF USE OF GENETIC INFORMATION.-- ::A. An employer shall not take an adverse employment action against an employee as defined in Subparagraph (a) of Paragraph (1) of Subsection C of Section 2 of the Uniform Protection of Genetic Information in Employment Act based on the employee's genetic information, including failing or refusing to hire, discharging or discriminating against the employee in regard to compensation or terms, conditions or privileges of employment. ::B. An employment agency shall not take an adverse employment action against an individual based on the individual's genetic information, including failing or refusing to refer the individual for employment or discriminating against the individual. ::C. A labor organization shall not take an adverse action against a labor organization member based on the member's genetic information, including excluding or expelling the member from membership in the organization or discriminating against the member. ::D. An employer, labor organization or labor- management committee controlling an apprenticeship or a training or retraining program shall not take an adverse employment action against an individual based on the individual's genetic information, including discriminating against the individual in admission to or employment in the program. ::E. A credentialing authority shall not take an adverse action against an individual based on the individual's genetic information, including discriminating against the individual in the provision of credentials. ::F. An employment entity shall not limit, segregate or classify an individual, or fail or refuse to refer the individual for employment, based on the individual's genetic information in a way that would deprive or tend to deprive the individual of employment opportunities or otherwise adversely affect the status of the individual as an employee. ::G. An employment agency, labor organization, labor- management training or apprenticeship program or credentialing authority shall not cause or attempt to cause an employer to discriminate against an employee in violation of the Uniform Protection of Genetic Information in Employment Act or a law of New Mexico other than the Uniform Protection of Genetic Information in Employment Act. ::H. An employment entity shall not discriminate against an employee because the employee: :::(1) opposed an act or practice made unlawful by the federal Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. Section 2000ff et seq., or the Uniform Protection of Genetic Information in Employment Act; or :::(2) made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing pursuant to the federal Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. Section 2000ff et seq., or the Uniform Protection of Genetic Information in Employment Act. :'''SECTION 18.''' [NEW MATERIAL] EMPLOYEE ACCESS TO GENETIC INFORMATION.--An employee may inspect, request correction of or obtain a copy of any record of an employment entity that contains genetic information of the employee. The employment entity shall permit the employee to provide genetic information in a signed record to supplement or correct genetic information in the employment entity's record. :'''SECTION 19.''' [NEW MATERIAL] CONFIDENTIALITY AND RETENTION OF GENETIC INFORMATION.--Except for genetic information that an employment entity obtains in aggregate form pursuant to Section 9 of the Uniform Protection of Genetic Information in Employment Act or pursuant to Section 10 of that act, the following rules apply: ::A. an employment entity shall treat an employee's genetic information as a confidential record; ::B. if an employment entity possesses a record of an employee's genetic information, the employment entity shall keep the record separate from the employee's personnel file; and ::C. Subsection B of this section is satisfied if an employment entity keeps the genetic information in the record in which it maintains confidential medical information subject to the federal Americans with Disabilities Act of 1990, Section 102(d)(3)(B), 42 U.S.C. Section 12112(d)(3)(B). :'''SECTION 20.''' [NEW MATERIAL] DISCLOSURE OF GENETIC INFORMATION.-- ::A. Except as otherwise permitted in Subsection B of this section, an employment entity shall not disclose genetic information of an employee or a family member of the employee. ::B. An employment entity may disclose genetic information of an employee or a family member of the employee: :::(1) to the employee or, if the genetic information is that of a family member of the employee, to the family member when authorized in a record signed by the employee or family member; :::(2) to a person that the employee or, if the genetic information is that of a family member, the family member has designated in an authorization pursuant to Subsection D of this section; :::(3) to an occupational or other health researcher if the research is conducted in compliance with federal department of health and human services regulations on the protection of human research subjects, 45 C.F.R. Part 46; :::(4) to the extent ordered by a tribunal; :::(5) in response to an official request from a government official who is investigating compliance with the Uniform Protection of Genetic Information in Employment Act or with the federal Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. Section 2000ff et seq., if the information is responsive to the official's request; :::(6) to the extent that the disclosure is made to comply with the certification provisions of Section 103 of the federal Family and Medical Leave Act of 1993, 29 U.S.C. Section 2613; :::(7) to a public health agency when the genetic information is family medical history that concerns a contagious disease that presents an imminent risk of death or life-threatening illness; or :::(8) in aggregate form in connection with health or genetic services pursuant to Section 9 of the Uniform Protection of Genetic Information in Employment Act or genetic monitoring pursuant to Section 10 of that act. ::C. Unless notice is otherwise given to an employee or, if the genetic information is that of a family member of the employee, to the family member, an employment entity of the employee shall provide notice in a record to the employee or family member whose genetic information is disclosed if the disclosure is made pursuant to Paragraph (4) or (7) of Subsection B of this section. ::D. An authorization for an employment entity to disclose genetic information of an employee or a family member of an employee pursuant to Paragraph (2) of Subsection B of this section shall be knowing and voluntary and indicated in a record signed by the employee or family member of the employee. The authorization shall: :::(1) describe the genetic information to be disclosed; :::(2) identify the person to whom the genetic information is to be disclosed; :::(3) indicate the duration of the authorization; and :::(4) state that the individual is entitled to a copy of the authorization. ::E. An employment entity that receives an authorization may disclose the genetic information only in accordance with the authorization. The authorization shall not expand the authority of the employment entity to disclose genetic information beyond that permitted by the Uniform Protection of Genetic Information in Employment Act. The authorization shall not waive any right of the employee or family member of the employee pursuant to federal law or the law of New Mexico. The employment entity shall provide a copy of the authorization to the employee or family member who signed the authorization. :'''SECTION 21.''' [NEW MATERIAL] FORM FOR AUTHORIZATION FOR DISCLOSURE OF GENETIC INFORMATION.--A completed and signed authorization substantially in the following form satisfies the authorization requirement in Subsection D of Section 20 of the Uniform Protection of Genetic Information in Employment Act. :'''SECTION 22.''' [NEW MATERIAL] RELATIONSHIP TO HEALTH REGULATIONS.--The Uniform Protection of Genetic Information in Employment Act does not prevent a covered entity under the regulations issued by the federal secretary of health and human services pursuant to Section 264(c) of the federal Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. Section 1320d-2 note, from using or disclosing health information that is authorized for a covered entity by the regulations. :'''SECTION 23.''' [NEW MATERIAL] REMEDIES.-- ::A. A person aggrieved by a violation of the Uniform Protection of Genetic Information in Employment Act has a cause of action for money damages or other relief. ::B. A person may seek remedies provided by law other than the Uniform Protection of Genetic Information in Employment Act. Exhaustion of administrative remedies is not required before seeking relief for a violation of the Uniform Protection of Genetic Information in Employment Act. ::C. A tribunal may allow a prevailing employee reasonable attorney fees and costs :'''SECTION 24.''' [NEW MATERIAL] NO CAUSE OF ACTION FOR DISPARATE IMPACT.--Notwithstanding any other provision of the Uniform Protection of Genetic Information in Employment Act, "disparate impact", as that term is used in 42 U.S.C. Section 2000e-2(k), does not establish a cause of action under the Uniform Protection of Genetic Information in Employment Act. :'''SECTION 25.''' [NEW MATERIAL] UNIFORMITY OF APPLICATION AND CONSTRUCTION.--In applying and construing the Uniform Protection of Genetic Information in Employment Act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it. :'''SECTION 26.''' [NEW MATERIAL] RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT.--The Uniform Protection of Genetic Information in Employment Act modifies, limits and supersedes the federal Electronic Signatures in Global and National Commerce Act, but it does not modify, limit or supersede Section 101(c) of that act or authorize electronic delivery of any of the notices described in Section 103(b) of that act. :'''SECTION 27.''' Section 24-21-3 NMSA 1978 (being Laws 1998, Chapter 77, Section 3) is amended to read: ::'''24-21-3. GENETIC ANALYSIS PROHIBITED WITHOUT INFORMED CONSENT--EXCEPTIONS.'''-- ::A. Except as provided in Subsection C of this section, no person shall obtain genetic information or samples for genetic analysis from a person without first obtaining informed and written consent from the person or the person's authorized representative. ::B. Except as provided in Subsection C of this section, genetic analysis of a person or collection, retention, transmission or use of genetic information without the informed and written consent of the person or the person's authorized representative is prohibited. ::C. A person's DNA or genetic information or the results of the person's genetic analysis may be obtained, retained, transmitted or used without the person's written and informed consent pursuant to federal or state law or regulations only: :::(1) to identify a person in the course of a criminal investigation by a law enforcement agency; :::(2) if the person has been convicted of a felony, for purposes of maintaining a DNA database for law enforcement purposes; :::(3) to identify deceased persons; :::(4) to establish parental identity; :::(5) to screen newborns; :::(6) if the DNA, genetic information or results of genetic analysis are not identified with the person or person's family members; :::(7) by a court for determination of damage awards pursuant to the Genetic Information Privacy Act; :::(8) by medical repositories or registries; :::(9) for the purpose of medical or scientific research and education, including retention of gene products, genetic information or genetic analysis if the identity of the person or person's family members is not disclosed; [or] :::(10) for the purpose of emergency medical treatment consistent with applicable law; or :::(11) as provided by the Uniform Protection of Genetic Information in Employment Act. ::D. Actions of an insurer and third parties dealing with an insurer in the ordinary course of conducting and administering the business of life, disability income or long-term care insurance are exempt from the provisions of this section if the use of genetic analysis or genetic information for underwriting purposes is based on sound actuarial principles or related to actual or reasonably anticipated experience. However, before or at the time of collecting genetic information for use in conducting and administering the business of life, disability income or long-term care insurance, the insurer shall notify in writing an applicant for insurance or the insured that the information may be used, transmitted or retained solely for the purpose of conducting and administering the business of life, disability income or long-term care insurance. ::E. Nothing in Paragraph (5), (6), (8), (9) or (10) of Subsection C of this section [3 of the Genetic Information Privacy Act] authorizes obtaining, retaining, transmitting or using a person's DNA, genetic information or the results of genetic analysis if the person [his] or the person's authorized representative or guardian, or the parent or guardian of a minor child, objects on the basis of religious tenets or practices." :'''SECTION 28.''' EFFECTIVE DATE.--The effective date of the provisions of this act is January 1, 2014.

Cancel

Edit Law: NM. SB 445. Uniform Protection of Genetic Information in Employment Act.

Navigation menu

Search