By Nelson S.B. No. 12
77R1010 PB-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to a prohibition of discrimination based on the use of
1-3 certain medical information in the determination of eligibility for
1-4 employment or an occupational license.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. The heading to Subchapter H, Chapter 21, Labor
1-7 Code, is amended to read as follows:
1-8 SUBCHAPTER H. DISCRIMINATORY USE OF MEDICAL
1-9 [GENETIC] INFORMATION
1-10 SECTION 2. Section 21.401, Labor Code, is amended to read as
1-11 follows:
1-12 Sec. 21.401. DEFINITIONS. In this subchapter:
1-13 (1) "DNA" means deoxyribonucleic acid.
1-14 (2) "Genetic characteristic" means a scientifically or
1-15 medically identifiable gene or chromosome, or an alteration of such
1-16 a gene or chromosome, that:
1-17 (A) is scientifically or medically believed to:
1-18 (i) predispose an individual to a disease,
1-19 disorder, or syndrome; or
1-20 (ii) be associated with a statistically
1-21 significant increased risk of development of a disease, disorder,
1-22 or syndrome; and
1-23 (B) is not associated with any symptom of an
1-24 ongoing disease, disorder, or syndrome affecting an individual on
2-1 the date that genetic information is obtained regarding that
2-2 individual.
2-3 (3) "Genetic information" means information that is:
2-4 (A) obtained from or based on a scientific or
2-5 medical determination of the presence or absence in an individual
2-6 of a genetic characteristic; or
2-7 (B) derived from the results of a genetic test
2-8 performed on that individual.
2-9 (4) [(3)] "Genetic test" means a presymptomatic
2-10 laboratory test of an individual's genes, gene products, [DNA, RNA,
2-11 proteins,] or chromosomes to determine the presence or absence of a
2-12 gene, or to identify by analysis of the individual's DNA, RNA,
2-13 proteins, or chromosomes, [the] genetic mutations or alterations
2-14 [in the DNA, RNA, proteins, or chromosomes] that are associated
2-15 with a statistically increased risk to develop [predisposition for]
2-16 a clinically recognized disease, [or] disorder, or syndrome or to
2-17 be a carrier of such a disease, disorder, or syndrome. The term
2-18 does not include a blood test, cholesterol test, urine test, or
2-19 other physical test used for a purpose other than determining the
2-20 presence or absence of a gene in a specific individual[:]
2-21 [(A) a routine physical examination or a routine
2-22 test performed as a part of a physical examination;]
2-23 [(B) a chemical, blood, or urine analysis;]
2-24 [(C) a test to determine drug use; or]
2-25 [(D) a test for the presence of the human
2-26 immunodeficiency virus].
2-27 (5) "Medical information" means information regarding
3-1 the diagnosis or treatment of an individual for a mental or
3-2 physical condition, disease, or disorder. The term includes
3-3 genetic information, demographic information, or a blood, urine, or
3-4 tissue sample taken from an individual as part of a physical
3-5 examination of that individual.
3-6 (6) [(4)] "RNA" means ribonucleic acid.
3-7 SECTION 3. Section 21.402, Labor Code, is amended to read as
3-8 follows:
3-9 Sec. 21.402. DISCRIMINATORY USE OF MEDICAL [GENETIC]
3-10 INFORMATION PROHIBITED. (a) Except as provided by Section 21.4025,
3-11 an [An] employer commits an unlawful employment practice if the
3-12 employer fails or refuses to hire, discharges, or otherwise
3-13 discriminates against an individual with respect to compensation or
3-14 the terms, conditions, or privileges of employment:
3-15 (1) on the basis of medical [genetic] information
3-16 concerning the individual; or
3-17 (2) because of the refusal of the individual to submit
3-18 to a genetic test.
3-19 (b) Except as provided by Section 21.4025, a [A] labor
3-20 organization commits an unlawful employment practice if the labor
3-21 organization excludes or expels from membership or otherwise
3-22 discriminates against an individual:
3-23 (1) on the basis of medical [genetic] information
3-24 concerning the individual; or
3-25 (2) because of the refusal of the individual to submit
3-26 to a genetic test.
3-27 (c) Except as provided by Section 21.4025, an [An]
4-1 employment agency commits an unlawful employment practice if the
4-2 employment agency classifies or refers for employment, fails or
4-3 refuses to refer for employment, or otherwise discriminates against
4-4 an individual:
4-5 (1) on the basis of medical [genetic] information
4-6 concerning the individual; or
4-7 (2) because of the refusal of the individual to submit
4-8 to a genetic test.
4-9 (d) Except as provided by Section 21.4025, an [An] employer,
4-10 labor organization, or employment agency commits an unlawful
4-11 employment practice if the employer, labor organization, or
4-12 employment agency limits, segregates, or classifies an employee,
4-13 member, or applicant for employment or membership in a way that
4-14 would deprive or tend to deprive the employee, member, or applicant
4-15 of employment opportunities or otherwise adversely affect the
4-16 status of the employee, member, or applicant:
4-17 (1) on the basis of medical [genetic] information
4-18 concerning the employee, member, or applicant; or
4-19 (2) because of the refusal of the employee, member, or
4-20 applicant to submit to a genetic test.
4-21 SECTION 4. Subchapter H, Chapter 21, Labor Code, is amended
4-22 by adding Section 21.4025 to read as follows:
4-23 Sec. 21.4025. EXCEPTIONS. (a) It is not an unfair
4-24 employment practice for an employer, labor organization, or
4-25 employment agency to require or request an applicant for employment
4-26 to undergo a medical examination, which may include a medical
4-27 history, to determine the applicant's ability to perform the
5-1 position of employment, if:
5-2 (1) an offer of employment has been made contingent on
5-3 the ability of the applicant to meet the physical or mental
5-4 requirements of the position;
5-5 (2) the examination tests only for essential
5-6 job-related abilities; and
5-7 (3) the examination, other than an examination for
5-8 workers' compensation purposes under Title 5, is required of each
5-9 individual conditionally offered employment for the position,
5-10 regardless of disability.
5-11 (b) It is not an unfair employment practice for an employer,
5-12 labor organization, or employment agency to require or request an
5-13 employee to undergo a medical examination to obtain medical
5-14 information necessary to:
5-15 (1) assess the employee's continuing ability to
5-16 perform the position of employment;
5-17 (2) assess the need, and develop a method, to
5-18 reasonably accommodate a health condition of the employee;
5-19 (3) comply with a uniform drug testing policy adopted
5-20 by the employer, labor organization, or employment agency;
5-21 (4) comply with a requirement adopted under a law,
5-22 rule, or regulation adopted by a local government, this state, or
5-23 the United States; or
5-24 (5) implement another legitimate business reason not
5-25 otherwise prohibited by law.
5-26 (c) Medical information obtained under this section shall be
5-27 collected on separate forms, maintained in separate files, and
6-1 treated as confidential as provided by Section 21.403.
6-2 SECTION 5. Sections 21.403(a) and (b), Labor Code, are
6-3 amended to read as follows:
6-4 (a) Except as provided by Subsections (c) and (d), medical
6-5 [genetic] information is confidential and privileged regardless of
6-6 the source of the information. A person who holds that information
6-7 may not disclose or be compelled to disclose, by subpoena or
6-8 otherwise, medical [genetic] information about an individual unless
6-9 the disclosure is specifically authorized by the individual as
6-10 provided by Subsection (b). This subsection applies to a
6-11 redisclosure of medical [genetic] information by a secondary
6-12 recipient of the information after disclosure of the information by
6-13 an initial recipient.
6-14 (b) An individual or the legal representative of an
6-15 individual may authorize the disclosure of medical [genetic]
6-16 information relating to that individual through a written
6-17 authorization that includes:
6-18 (1) a description of the information to be disclosed;
6-19 (2) the name of the person to whom the disclosure is
6-20 made; and
6-21 (3) the purpose for the disclosure.
6-22 SECTION 6. Article 9031, Revised Statutes, as added by
6-23 Section 2, Chapter 1215, Acts of the 75th Legislature, Regular
6-24 Session, 1997, is renumbered as Article 9032, Revised Statutes, and
6-25 amended to read as follows:
6-26 Art. 9032 [9031]. PROHIBITED USE OF MEDICAL [GENETIC]
6-27 INFORMATION.
7-1 Sec. 1. DEFINITIONS. In this article:
7-2 (1) "DNA" means deoxyribonucleic acid.
7-3 (2) "Genetic characteristic" means a scientifically or
7-4 medically identifiable gene or chromosome, or an alteration of such
7-5 a gene or chromosome, that:
7-6 (A) is scientifically or medically believed to:
7-7 (i) predispose an individual to a disease,
7-8 disorder, or syndrome; or
7-9 (ii) be associated with a statistically
7-10 significant increased risk of development of a disease, disorder,
7-11 or syndrome; and
7-12 (B) is not associated with any symptom of an
7-13 ongoing disease, disorder, or syndrome affecting an individual on
7-14 the date that genetic information is obtained regarding that
7-15 individual.
7-16 (3) "Genetic information" means information that is:
7-17 (A) obtained from or based on a scientific or
7-18 medical determination of the presence or absence in an individual
7-19 of a genetic characteristic; or
7-20 (B) derived from the results of a genetic test
7-21 performed on that individual.
7-22 (4) [(3)] "Genetic test" means a presymptomatic
7-23 laboratory test of an individual's genes, gene products, [DNA, RNA,
7-24 proteins,] or chromosomes to determine the presence or absence of a
7-25 gene, or to identify by analysis of the individual's DNA, RNA,
7-26 proteins, or chromosomes, [the] genetic mutations or alterations
7-27 [in the DNA, RNA, proteins, or chromosomes] that are associated
8-1 with a statistically increased risk to develop [predisposition for]
8-2 a clinically recognized disease, [or] disorder, or syndrome or to
8-3 be a carrier of such a disease, disorder, or syndrome. The term
8-4 does not include a blood test, cholesterol test, urine test, or
8-5 other physical test used for a purpose other than determining the
8-6 presence or absence of a gene in a specific individual[:]
8-7 [(A) a routine physical examination or a routine
8-8 test performed as a part of a physical examination;]
8-9 [(B) a chemical, blood, or urine analysis;]
8-10 [(C) a test to determine drug use; or]
8-11 [(D) a test for the presence of the human
8-12 immunodeficiency virus].
8-13 (5) [(4)] "Licensing authority" means a state agency
8-14 or political subdivision that issues an occupational license.
8-15 (6) "Medical information" means information regarding
8-16 the diagnosis or treatment of an individual for a mental or
8-17 physical condition, disease, or disorder. The term includes
8-18 genetic information, demographic information, or a blood, urine, or
8-19 tissue sample taken from an individual as part of a physical
8-20 examination of that individual.
8-21 (7) [(5)] "Occupational license" means a license,
8-22 certificate, registration, permit, or other form of authorization
8-23 required by law or rule that must be obtained by an individual to
8-24 engage in a particular business or occupation.
8-25 (8) [(6)] "Political subdivision" means a
8-26 municipality, county, or special district or authority. The term
8-27 includes a school district.
9-1 (9) [(7)] "RNA" means ribonucleic acid.
9-2 (10) [(8)] "State agency" means a department, board,
9-3 bureau, commission, committee, division, office, council, or agency
9-4 in the executive or judicial branch of state government.
9-5 Sec. 2. GENETIC TESTING REQUIREMENT PROHIBITED. A licensing
9-6 authority may not deny an application for an occupational license,
9-7 suspend, revoke, or refuse to renew an occupational license, or
9-8 take any other disciplinary action against a license holder based
9-9 on the refusal of the license applicant or license holder to:
9-10 (1) submit to a genetic test; or
9-11 (2) reveal:
9-12 (A) whether the applicant or holder has
9-13 submitted to a genetic test; or
9-14 (B) the results of any genetic test to which the
9-15 applicant or holder has submitted.
9-16 Sec. 3. INFORMATION CONFIDENTIAL; EXCEPTIONS. (a) Except as
9-17 provided by Subsections (c) and (d) of this section, medical
9-18 [genetic] information is confidential and privileged regardless of
9-19 the source of the information. A person or entity that holds that
9-20 information may not disclose or be compelled to disclose, by
9-21 subpoena or otherwise, medical [genetic] information about an
9-22 individual unless the disclosure is specifically authorized by the
9-23 individual as provided by Subsection (b) of this section. This
9-24 subsection applies to a redisclosure of medical [genetic]
9-25 information by a secondary recipient of the information after
9-26 disclosure of the information by an initial recipient.
9-27 (b) An individual or the legal representative of an
10-1 individual may authorize the disclosure of medical [genetic]
10-2 information relating to that individual through a written
10-3 authorization that includes:
10-4 (1) a description of the information to be disclosed;
10-5 (2) the name of the person or entity to whom the
10-6 disclosure is made; and
10-7 (3) the purpose for the disclosure.
10-8 (c) Subject to Subchapter G, Chapter 411, Government Code,
10-9 genetic information relating to an individual may be disclosed
10-10 without the authorization required under Subsection (b) of this
10-11 section if the disclosure is:
10-12 (1) authorized under a state or federal criminal law
10-13 relating to:
10-14 (A) the identification of individuals; or
10-15 (B) a criminal or juvenile proceeding, an
10-16 inquest, or a child fatality review by a multidisciplinary
10-17 child-abuse team;
10-18 (2) required under a specific order of a state or
10-19 federal court;
10-20 (3) authorized under a state or federal law to
10-21 establish paternity;
10-22 (4) made to furnish genetic information relating to a
10-23 decedent to the blood relatives of the decedent for the purpose of
10-24 medical diagnosis; or
10-25 (5) made to identify a decedent.
10-26 (d) In addition to the exceptions under Subsection (c),
10-27 genetic information relating to an individual may be disclosed
11-1 without the authorization required under Subsection (b) if:
11-2 (1) the disclosure is for information from a research
11-3 study in which the procedure for obtaining informed written consent
11-4 and use of the information is governed by national standards for
11-5 protecting participants involved in research projects, including
11-6 guidelines issued under 21 C.F.R. Part 50 and 45 C.F.R. Part 46;
11-7 (2) the information does not identify a particular
11-8 individual; and
11-9 (3) the information is provided to the Texas
11-10 Department of Health to comply with Chapter 87, Health and Safety
11-11 Code.
11-12 Sec. 4. RIGHT TO KNOW TEST RESULTS. An individual who
11-13 submits to a genetic test has the right to know the results of that
11-14 test. On the written request of the individual, the entity that
11-15 performed the test shall disclose the test results to the
11-16 individual or to a physician designated by the individual.
11-17 Sec. 5. RETENTION OF SAMPLE. A sample of genetic material
11-18 taken for a genetic test from an individual shall be destroyed
11-19 promptly after the purpose for which the sample was obtained is
11-20 accomplished unless:
11-21 (1) the sample is retained under a court order;
11-22 (2) the individual tested authorizes retention of the
11-23 sample for purposes of medical treatment or scientific research;
11-24 (3) for a sample obtained for research that is cleared
11-25 by an institutional review board, the sample is retained under the
11-26 requirements that the institutional review board imposes on a
11-27 specific research project or as authorized by the research
12-1 participant with institutional review board approval under federal
12-2 law; or
12-3 (4) the sample was obtained for a screening test
12-4 established by the Texas Department of Health and performed by that
12-5 department or by a laboratory approved by that department under
12-6 Section 33.011, Health and Safety Code.
12-7 SECTION 7. This Act takes effect September 1, 2001.
12-8 SECTION 8. Article 9031, Revised Statutes, as amended by this
12-9 Act, applies only to a license issued or renewed by a licensing
12-10 authority on or after the effective date of this Act. A license
12-11 issued or renewed before that date is governed by the law in effect
12-12 on the date the license was issued or renewed, and the former law
12-13 is continued in effect for that purpose.
12-14 SECTION 9. Subchapter H, Chapter 21, Labor Code, as amended
12-15 by this Act, applies only to a claim alleging an unlawful
12-16 employment practice that is filed with the Commission on Human
12-17 Rights on or after the effective date of this Act. A claim filed
12-18 before that date is governed by the law in effect on the date that
12-19 the claim was filed, and the former law is continued in effect for
12-20 that purpose.