On May 21, President Bush signed into law H.R. 493, the Genetic Information Nondiscrimination Act, which prohibits employers from discharging, refusing to hire or otherwise discriminating against employees on the basis of genetic information.

The law, known as GINA, represents a win for privacy advocates but opens a Pandora's Box for employers.

GINA applies to employment agencies and labor unions. It amends ERISA, the Employee Retirement Income Security Act, to prevent group health plans and health-insurance issuers from discriminating against people based on genetic information, and it prohibits insurers from requiring genetic tests.

The act specifically exempts employers who obtain such information under Family and Medical Leave Act (FMLA) processes.

Employers have expressed concern about the prospect of liability when they did not solicit or intend to obtain such data. For example, what about an employee who reveals that her mother has breast cancer when she requests a non-FMLA leave to care for her? What about information an employee shares in conversations with his manager about a parent's disease? These issues will probably be the cause of new litigation.

The ADA, or Americans With Disabilities Act, is another area for concern. While accommodating an employee's disability through an interactive process, the employer may acquire genetic information without any intent to do so.

GINA does provide that an employer's "inadvertent" acquisition of genetic information would not expose the employer to potential liability. The scope of the protection seems at this juncture to be vague, since "inadvertent" depends on the context.

For example, if a manager visits a sick employee in the hospital and learns that the employee's malady has a genetic basis, would that information be obtained "inadvertently"?

GINA also provides for a private right of action, with jury trial and compensatory and punitive damages patterned after Title VII of the 1964 Civil Rights Act.

The need for GINA arose in response to employees' reluctance to participate in clinical trials or to undergo genetic tests because of the fear that employers or health insurers would discriminate against them.

GINA's employment title takes effect 18 months after enactment, and the EEOC must issue final regulations within a year of enactment.

Hopefully the regulations will assist with state laws banning discrimination based on genetic data and their interplay with GINA.

Lindy Korn is a Buffalo lawyer with a solo practice and CEO of Diversity Training - Workplace Solutions Inc. She can be reached at lkorn@diversitytraining.com.