BILL REQ. #:  H-3730.2 

Read first time 01/20/2004.   Referred to Committee on Financial Institutions & Insurance.

     AN ACT Relating to genetic information; amending RCW 48.18.480, 49.60.020, 49.60.040, 49.60.180, 49.60.190, and 49.60.200; adding a new section to chapter 49.44 RCW; adding a new chapter to Title 7 RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature finds and declares the following:
     (1) Every individual possesses a fundamental right of privacy with respect to his or her genetic information;
     (2) Genetic information is uniquely private and personal information that should not be collected, retained, or disclosed without the individual's authorization;
     (3) The improper collection, retention, or disclosure of genetic information can lead to significant harm to the individual, including stigmatization and discrimination in areas such as employment and insurance;
     (4) Current legal protections may be inadequate to protect genetic privacy;
     (5) Therefore, the purpose of this act is to prohibit the disclosure of genetic information without the consent of the individual to whom the information pertains; prohibit discrimination based on genetic information in employment decisions; and prohibit the use of genetic information to discriminate in the life insurance contract.

NEW SECTION.  Sec. 2   (1) An individual's genetic information is the property of the individual. A person may not obtain, use, store, or disclose for any purpose an individual's genetic information without first obtaining the individual's informed consent to do so.
     (2) Informed consent requires:
     (a) An explanation of the purpose for which the genetic information is being obtained;
     (b) Identification of the entity obtaining the genetic information;
     (c) Disclosure of any entity with whom the genetic information may be shared, including disclosure that the genetic information may be shared in the future with an unknown entity;
     (d) A statement of the expected duration that the genetic information may be kept;
     (e) A description of reasonably foreseeable risks or harm associated with providing the genetic information;
     (f) An explanation of how the genetic information will be maintained and whether the physical sample will be destroyed or stored, including how and where it will be stored;
     (g) A statement describing any reasonably expected benefits or advantages associated with providing the genetic information;
     (h) A statement describing any confidentiality or privacy protections for the genetic information;
     (i) Identification of an individual contact and contact information from whom further information may be obtained or reported relative to the genetic information;
     (j) Provisions explaining whether the genetic information may be expunged or removed from the entity that obtained it and the method to do it;
     (k) The exclusion of any exculpatory provisions from liability against the entity obtaining the genetic information; and
     (l) A disclosure that providing genetic information is voluntary.
     (3) Informed consent must be granted in writing each time genetic information is obtained, used, stored, or disclosed. However, an individual may grant continuous informed consent for the ongoing use and storage of genetic information for research purposes. For continuous informed consent to be granted, the individual must specifically designate that his or her consent is continuous and ongoing. Alternatively, an individual may grant informed consent for a specified length of time if he or she specifically states the period of time for which informed consent will be valid. Continuous informed consent applies only to the use and storage of genetic information. Obtaining and/or disclosure of genetic information requires informed consent for each occurrence.
     (4) An individual's informed consent is not required:
     (a) In criminal matters if the genetic information is obtained or used during a criminal investigation, trial, appeal, or pursuant to specific common law or statutory authority, or a lawfully issued court order. Once a criminal conviction is final, a report that was not admitted into evidence, identifying a specific individual by analysis of genetic information obtained in the course of an investigation, shall be destroyed if the individual is found to be uninvolved in the commission of the criminal act or acts;
     (b) In situations where the individual requires emergency medical care as long as the individual, or his or her representative in death cases, is informed in a timely manner after the emergency that the genetic information was obtained;
     (c) In situations where an individual's bodily fluids are obtained without consent pursuant to specific statutory requirement mandating testing;
     (d) In situations where the individual is deceased and the entity requesting the genetic information establishes in a court of law that obtaining individually identifiable genetic information benefits public health, safety, and welfare, and outweighs the harm to the individual's privacy interests, or the person requesting the genetic information is a next of kin requesting the genetic information for purposes of health care or other purpose that outweighs the harm to the individual's privacy interests, or the entity requesting the genetic information has been authorized by an institutional review board to use the genetic information pursuant to an approved protocol;
     (e) Subject to this section, if the entity or person is a health care provider or facility, under chapter 70.02 RCW and is subject to the federal health insurance portability and accountability act privacy rules;
     (f) Subject to this section, if the person obtains an individual's genetic information in a form that does not identify that individual or there is no reasonable basis to believe the information can be used to identify an individual;
     (g) Subject to this section, if the person who obtains genetic information is acting according to the provisions of an institutional review board established under federal law;
     (h) In death investigations for purposes of identifying the decedent;
     (i) In matters of parentage proceedings under chapter 26.26 RCW. Genetic information may not be released or disclosed for any purpose other than that which is relevant to the parentage proceeding without a court order or informed consent of the individual who furnished the specimen; and
     (j) When the division of child support has issued an order for genetic testing pursuant to RCW 74.20.360. Genetic information may not be released or disclosed for any purpose not relevant to the division of child support's order without a court order or the informed consent of the individual who furnished the specimen.
     (5) For the purposes of this section, "genetic information" means information about inherited characteristics that is derived from a DNA-based or other laboratory test, family history, or medical examination.

Sec. 3   RCW 48.18.480 and 1957 c 193 s 12 are each amended to read as follows:
     ((No)) An insurer shall not make or permit any unfair discrimination between insureds, prospective insureds, or subjects of insurance having substantially like insuring, risk, and exposure factors, and expense elements, in the terms or conditions of any insurance contract, or in the rate or amount of premium charged therefor, or in the benefits payable or in any other rights or privileges accruing thereunder. This ((provision shall)) section does not prohibit fair discrimination by a life insurer as between individuals having unequal expectation of life, except that insurers shall neither require nor use genetic information as a basis for that discrimination.

NEW SECTION.  Sec. 4   A new section is added to chapter 49.44 RCW to read as follows:
     It is unlawful for any person, firm, corporation, or the state of Washington, its political subdivisions, or municipal corporations to require, directly or indirectly, that any employee or prospective employee submit genetic information or submit to screening for genetic information as a condition of employment or continued employment. On the effective date of this section, if an employer possesses genetic information about an employee, it is unlawful for the employer to disclose the genetic information without the employee's informed consent.
     "Genetic information" for purposes of this chapter, means information about inherited characteristics that is derived from a DNA-based or other laboratory test, family history, or medical examination.

Sec. 5   RCW 49.60.020 and 1993 c 510 s 2 are each amended to read as follows:
     ((The provisions of)) This chapter shall be construed liberally for the accomplishment of the purposes thereof. ((Nothing contained in)) This chapter ((shall be deemed to)) does not repeal any of the provisions of any other law of this state relating to discrimination because of race, color, creed, national origin, sex, genetic information, marital status, age, or the presence of any sensory, mental, or physical disability, other than a law which purports to require or permit doing any act which is an unfair practice under this chapter. ((Nor shall anything herein contained be construed to)) This chapter does not deny the right to any person to institute any action or pursue any civil or criminal remedy based upon an alleged violation of his or her civil rights.

Sec. 6   RCW 49.60.040 and 1997 c 271 s 3 are each amended to read as follows:
     As used in this chapter:
     (1) "Person" includes one or more individuals, partnerships, associations, organizations, corporations, cooperatives, legal representatives, trustees and receivers, or any group of persons; it includes any owner, lessee, proprietor, manager, agent, or employee, whether one or more natural persons; and further includes any political or civil subdivisions of the state and any agency or instrumentality of the state or of any political or civil subdivision thereof;
     (2) "Commission" means the Washington state human rights commission;
     (3) "Employer" includes any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit;
     (4) "Employee" does not include any individual employed by his or her parents, spouse, or child, or in the domestic service of any person;
     (5) "Labor organization" includes any organization which exists for the purpose, in whole or in part, of dealing with employers concerning grievances or terms or conditions of employment, or for other mutual aid or protection in connection with employment;
     (6) "Employment agency" includes any person undertaking with or without compensation to recruit, procure, refer, or place employees for an employer;
     (7) "Marital status" means the legal status of being married, single, separated, divorced, or widowed;
     (8) "National origin" includes "ancestry";
     (9) "Full enjoyment of" includes the right to purchase any service, commodity, or article of personal property offered or sold on, or by, any establishment to the public, and the admission of any person to accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement, without acts directly or indirectly causing persons of any particular race, creed, color, sex, national origin, or with any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a disabled person, to be treated as not welcome, accepted, desired, or solicited;
     (10) "Any place of public resort, accommodation, assemblage, or amusement" includes, but is not limited to, any place, licensed or unlicensed, kept for gain, hire, or reward, or where charges are made for admission, service, occupancy, or use of any property or facilities, whether conducted for the entertainment, housing, or lodging of transient guests, or for the benefit, use, or accommodation of those seeking health, recreation, or rest, or for the burial or other disposition of human remains, or for the sale of goods, merchandise, services, or personal property, or for the rendering of personal services, or for public conveyance or transportation on land, water, or in the air, including the stations and terminals thereof and the garaging of vehicles, or where food or beverages of any kind are sold for consumption on the premises, or where public amusement, entertainment, sports, or recreation of any kind is offered with or without charge, or where medical service or care is made available, or where the public gathers, congregates, or assembles for amusement, recreation, or public purposes, or public halls, public elevators, and public washrooms of buildings and structures occupied by two or more tenants, or by the owner and one or more tenants, or any public library or educational institution, or schools of special instruction, or nursery schools, or day care centers or children's camps: PROVIDED, That nothing contained in this definition shall be construed to include or apply to any institute, bona fide club, or place of accommodation, which is by its nature distinctly private, including fraternal organizations, though where public use is permitted that use shall be covered by this chapter; nor shall anything contained in this definition apply to any educational facility, columbarium, crematory, mausoleum, or cemetery operated or maintained by a bona fide religious or sectarian institution;
     (11) "Real property" includes buildings, structures, dwellings, real estate, lands, tenements, leaseholds, interests in real estate cooperatives, condominiums, and hereditaments, corporeal and incorporeal, or any interest therein;
     (12) "Real estate transaction" includes the sale, appraisal, brokering, exchange, purchase, rental, or lease of real property, transacting or applying for a real estate loan, or the provision of brokerage services;
     (13) "Dwelling" means any building, structure, or portion thereof that is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land that is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof;
     (14) "Sex" means gender;
     (15) "Aggrieved person" means any person who: (a) Claims to have been injured by an unfair practice in a real estate transaction; or (b) believes that he or she will be injured by an unfair practice in a real estate transaction that is about to occur;
     (16) "Complainant" means the person who files a complaint in a real estate transaction;
     (17) "Respondent" means any person accused in a complaint or amended complaint of an unfair practice in a real estate transaction;
     (18) "Credit transaction" includes any open or closed end credit transaction, whether in the nature of a loan, retail installment transaction, credit card issue or charge, or otherwise, and whether for personal or for business purposes, in which a service, finance, or interest charge is imposed, or which provides for repayment in scheduled payments, when such credit is extended in the regular course of any trade or commerce, including but not limited to transactions by banks, savings and loan associations or other financial lending institutions of whatever nature, stock brokers, or by a merchant or mercantile establishment which as part of its ordinary business permits or provides that payment for purchases of property or service therefrom may be deferred;
     (19) "Families with children status" means one or more individuals who have not attained the age of eighteen years being domiciled with a parent or another person having legal custody of such individual or individuals, or with the designee of such parent or other person having such legal custody, with the written permission of such parent or other person. Families with children status also applies to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of eighteen years;
     (20) "Covered multifamily dwelling" means: (a) Buildings consisting of four or more dwelling units if such buildings have one or more elevators; and (b) ground floor dwelling units in other buildings consisting of four or more dwelling units;
     (21) "Premises" means the interior or exterior spaces, parts, components, or elements of a building, including individual dwelling units and the public and common use areas of a building;
     (22) "Dog guide" means a dog that is trained for the purpose of guiding blind persons or a dog that is trained for the purpose of assisting hearing impaired persons;
     (23) "Service animal" means an animal that is trained for the purpose of assisting or accommodating a disabled person's sensory, mental, or physical disability;
     (24) "Genetic information" means information about inherited characteristics that is derived from a DNA-based or other laboratory test, family history, or medical examination.

Sec. 7   RCW 49.60.180 and 1997 c 271 s 10 are each amended to read as follows:
     It is an unfair practice for any employer:
     (1) To refuse to hire any person because of age, sex, marital status, race, creed, color, national origin, genetic information, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person, unless based upon a bona fide occupational qualification: PROVIDED, That the prohibition against discrimination because of such disability shall not apply if the particular disability prevents the proper performance of the particular worker involved.
     (2) To discharge or bar any person from employment because of age, sex, marital status, race, creed, color, national origin, genetic information, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person.
     (3) To discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, race, creed, color, national origin, genetic information, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person: PROVIDED, That it shall not be an unfair practice for an employer to segregate washrooms or locker facilities on the basis of sex, or to base other terms and conditions of employment on the sex of employees where the commission by regulation or ruling in a particular instance has found the employment practice to be appropriate for the practical realization of equality of opportunity between the sexes.
     (4) To print, or circulate, or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for employment, or to make any inquiry in connection with prospective employment, which expresses any limitation, specification, or discrimination as to age, sex, marital status, race, creed, color, national origin, genetic information, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person, or any intent to make any such limitation, specification, or discrimination, unless based upon a bona fide occupational qualification((: PROVIDED, Nothing contained herein shall)). This subsection does not prohibit advertising in a foreign language.
     (5) To offer a person an inducement to disclose genetic information; to question a person about his or her genetic information; to solicit submission to, require, or administer a genetic test to any person as a condition of employment; or to collect, solicit, or require disclosure of genetic information from any person as a condition of employment.

Sec. 8   RCW 49.60.190 and 1997 c 271 s 11 are each amended to read as follows:
     It is an unfair practice for any labor union or labor organization:
     (1) To deny membership and full membership rights and privileges to any person because of age, sex, marital status, race, creed, color, national origin, genetic information, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person.
     (2) To expel from membership any person because of age, sex, marital status, race, creed, color, national origin, genetic information, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person.
     (3) To discriminate against any member, employer, employee, or other person to whom a duty of representation is owed because of age, sex, marital status, race, creed, color, national origin, genetic information, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person.
     (4) To offer a person an inducement to disclose genetic information; to question a person about his or her genetic information; to solicit submission to, require, or administer a genetic test to any person as a condition of membership; or to collect, solicit, or require disclosure of genetic information from any person as a condition of membership.

Sec. 9   RCW 49.60.200 and 1997 c 271 s 12 are each amended to read as follows:
     It is an unfair practice for any employment agency:
     (1) To fail or refuse to classify properly or refer for employment, or otherwise to discriminate against, an individual because of age, sex, marital status, race, creed, color, national origin, genetic information, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person, or to print or circulate, or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for employment, or to make any inquiry in connection with prospective employment, which expresses any limitation, specification or discrimination as to age, sex, race, creed, color, or national origin, genetic information, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person, or any intent to make any such limitation, specification, or discrimination, unless based upon a bona fide occupational qualification((: PROVIDED, Nothing contained herein shall)). This subsection does not prohibit advertising in a foreign language.
     (2) To offer a person an inducement to disclose genetic information; to question a person about his or her genetic information; to solicit submission to, require, or administer a genetic test to any person as a condition of employment classification, assignment, or referral; or to collect, solicit, or require disclosure of genetic information from any person as a condition of employment classification, assignment, or referral.

NEW SECTION.  Sec. 10   Section 2 of this act constitutes a new chapter in Title 7 RCW.