In 1998, the Illinois legislature passed the Genetic Information Privacy Act (GIPA). Until recently, claims under the statute were rare. However, perhaps riding the coattails of favorable decisions under the Illinois Biometric Information Privacy Act, plaintiffs have begun to pursue claims for statutory damages under GIPA. In light of the steep statutory penalties, transportation and logistics providers should be aware of the law and its requirements and take steps to comply with the statute when applicable.

What is GIPA?

GIPA governs the collection of genetic information by employers and other entities. To that end,  GIPA prohibits employers from “directly or indirectly” soliciting, requesting, or requiring the submission of genetic information of a person or the family member of a person “as a condition of employment or preemployment application.” GIPA incorporates the definition of “genetic information” used by the HIPAA Privacy Rule, which includes “genetic tests” and “the manifestation of a disease or disorder in family members of such individual.”  GIPA provides a private right of action to “any person aggrieved by a violation of GIPA” and provides statutory penalties of $2,500 per violation for negligent violations and $15,000 per violation for reckless violations.

Recent Developments in GIPA Litigation Allow Claims to Proceed

To date, plaintiffs have pursued claims against entities that require individuals to submit to a pre-employment physical examination during which a doctor asks the individual about the individual’s family medical history. In this circumstance, plaintiffs allege that this is an indirect solicitation of “genetic information” from the individual. Two recent decisions—McKnight v. United Airlines, Inc. and Taylor v. Union Pacific Railroad Company—have allowed these claims to proceed past a motion to dismiss. While future litigation will continue to shape the interpretation of GIPA claims, here are several takeaways from these early decisions:

• GIPA’s Standing Requirements are Similar to Claims Under BIPA. Specifically, the Taylor court used prior BIPA decisions to determine that GIPA provided similar privacy rights to individuals as under BIPA and, as a result, a plaintiff can pursue statutory penalties under GIPA by alleging a violation of those rights.

• Family Medical History Can Qualify as “Genetic Information.” In both McKnight and Taylor, the Court rejected the defendant’s argument that family medical history did not qualify as genetic information under GIPA. The Court reasoned that GIPA relies on HIPPA’s definition of “genetic information” and looked to interpretations of GIPA’s federal counterpart — the Genetic Information Nondiscrimination Act — and other resources as instructive to interpreting GIPA. There is parallel language in both statutes regarding “the manifestation of a disease or disorder.” Using that parallel, the Court found that this language was limited to diseases and disorders “suggesting an individual’s genetic predisposition” to the condition. Therefore, if an employer requests family medical history relating to cancer, heart disease, diabetes, and other hereditary conditions, it is making a request for genetic information under GIPA.

• GIPA Can Apply to Non-Illinois Residents. In McKnight, the Court held that simply being an out-of-state resident did not prevent the plaintiff from bringing a claim under GIPA. Specifically, the Court held that an out-of-state plaintiff can sue under GIPA if “the circumstances that relate to the disputed transaction occur[red] primarily and substantially in Illinois.” The Court noted that a central focus of this inquiry is where the company policy is carried out. And if that policy is carried out in Illinois, that may be sufficient for an out-of-state plaintiff to bring a claim. 

• Federal Preemption Remains an Open Issue. Notably for transportation and logistics companies, the McKnight decision notes that “contrary federal laws may preempt GIPA.” However, that issue remains an open question that will need to be addressed in future litigation. 

Given these recent GIPA rulings, Illinois employers should keep a close watch on GIPA developments and exercise caution when requiring employees to submit to physical exams, inquiries, or screenings that are not required by federal law. Companies should review current hiring policies and procedures for compliance with this state genetic privacy law.

Scopelitis has a robust Workplace and Data Privacy Practice that is familiar with drafting privacy-related policies and defending individual and class action litigation involving privacy issues. If you have questions about GIPA, BIPA, or any other privacy-related matter, please contact Chip Andrewscavage, Shannon Cohen, or Dylan Goetsch.