Public Act 095-0927
 		





SB2399 Enrolled
LRB095 19767 KBJ 46141 b






    AN ACT concerning health.

 
    Be it enacted by the People of the State of Illinois,
 
represented in the General Assembly:



 
    Section 5. The Genetic Information Privacy Act is amended  
by changing Sections 10, 15, 25, and 40 and by adding Section 
50 as follows:
 



    (410 ILCS 513/10)



    Sec. 10. Definitions. As used in this Act:

    "Employer" means the State of Illinois, any unit of local 
government, and any board, commission, department, 
institution, or school district, any party to a public 
contract, any joint apprenticeship or training committee 
within the State, and every other person employing employees 
within the State.
    "Employment agency" means both public and private 
employment agencies and any person, labor organization, or 
labor union having a hiring hall or hiring office regularly 
undertaking, with or without compensation, to procure 
opportunities to work, or to procure, recruit, refer, or place 
employees.
    "Family member" means, with respect to an individual, (i) 
the spouse of the individual; (ii) a dependent child of the 
individual, including a child who is born to or placed for 
adoption with the individual; (iii) any other person qualifying 
as a covered dependent under a managed care plan; and (iv) all 
other individuals related by blood or law to the individual or 
the spouse or child described in subsections (i) through (iii) 
of this definition.
    "Genetic information" means, with respect to any 
individual, information about (i) the individual's genetic 
tests; (ii) the genetic tests of a family member of the 
individual; and
(iii) the manifestation or possible 
manifestation of a disease or disorder in a family member of 
the individual.  Genetic information does not include 
information about the sex or age of any individual.
    "Genetic monitoring" means the periodic examination of 
employees to evaluate acquired modifications to their 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 toxic substances in the 
workplace in order to identify, evaluate, and respond to 
effects of or control adverse environmental exposures in the 
workplace.
    "Genetic services" means a genetic test, genetic 
counseling, including obtaining, interpreting, or assessing 
genetic information, or genetic education. 
    "Genetic testing" and "genetic test" mean means a test or 
analysis of human a person's
genes, gene products, DNA, RNA, or 
chromosomes, proteins, or metabolites that detect genotypes, 
mutations, chromosomal changes, for abnormalities, or 
deficiencies,
including carrier status, that (i) are linked to 
physical or mental disorders
or
impairments, (ii) indicate a 
susceptibility to illness, disease, impairment,
or other 
disorders, whether physical or mental, or (iii) demonstrate 
genetic or
chromosomal damage due to environmental factors.  
Genetic testing and genetic tests do does not
include routine 
physical measurements; chemical, blood and urine analyses that

are widely accepted and in use in clinical practice; tests for 
use of drugs;
and tests for the presence of the human 
immunodeficiency virus; analyses of proteins or metabolites 
that do not detect genotypes, mutations, chromosomal changes, 
abnormalities, or deficiencies; or analyses of proteins or 
metabolites that are directly related to a manifested disease, 
disorder, or pathological condition that could reasonably be 
detected by a health care professional with appropriate 
training and expertise in the field of medicine involved.

    "Insurer" means (i) an entity that transacts an insurance 
business and (ii) a
managed care plan.

    "Licensing agency" means a board, commission, committee, 
council, department, or officers, except a judicial officer, in 
this State or any political subdivision authorized to grant, 
deny, renew, revoke, suspend, annul, withdraw, or amend a 
license or certificate of registration.
    "Labor organization" includes any organization, labor 
union, craft union, or any voluntary unincorporated 
association designed to further the cause of the rights of 
union labor that is constituted for the purpose, in whole or in 
part, of collective bargaining or of dealing with employers 
concerning grievances, terms or conditions of employment, or 
apprenticeships or applications for apprenticeships, or of 
other mutual aid or protection in connection with employment, 
including apprenticeships or applications for apprenticeships. 
    "Managed care plan" means a plan that establishes, 
operates, or maintains a
network of health care providers that 
have entered into agreements with the
plan to provide health 
care services to enrollees where the plan has the
ultimate and 
direct contractual obligation to the enrollee to arrange for 
the
provision of or pay for services
through:


        (1) organizational arrangements for ongoing quality 
    assurance,
utilization review programs, or dispute 
    resolution; or


        (2) financial incentives for persons enrolled in the 
    plan to use the
participating providers and procedures 
    covered by the plan.

    A managed care plan may be established or operated by any 
entity including
a licensed insurance company, hospital or 
medical service plan, health
maintenance organization, limited 
health service organization, preferred
provider organization, 
third party administrator, or an employer or employee

organization.

(Source: P.A. 90-25, eff. 1-1-98.)

 



    (410 ILCS 513/15)



    Sec. 15. Confidentiality of genetic information. 

    (a) Except as otherwise provided in this Act, genetic 
testing and
information derived from genetic testing is 
confidential and privileged and may
be released only to the 
individual tested and to persons specifically
authorized, in 
writing in accordance with Section 30,  by that individual to

receive the information.  Except as otherwise provided in 
subsection (b) and in
Section 30, this information shall not be 
admissible as evidence, nor
discoverable in any action
of any 
kind in any court, or before any tribunal, board, agency, or 
person
pursuant to Part 21 of Article VIII of the Code of Civil 
Procedure.  No
liability shall attach
to any hospital, 
physician, or other health care provider for compliance with

the provisions of this Act including a specific written release 
by the
individual in accordance with this Act.

    (b) When a biological sample is legally obtained by a peace 
officer for use
in a criminal investigation or prosecution,

information derived from genetic testing of that sample
may be 
disclosed
for identification purposes
to appropriate law 
enforcement authorities
conducting the
investigation or 
prosecution
and may be used in accordance with Section 5-4-3 of 
the Unified Code of
Corrections.  The information may be used

for identification purposes
during the course of
the 
investigation or prosecution with respect to the individual 
tested without
the consent of the individual and shall be 
admissible as evidence in court.

    The information shall be confidential and
may be
disclosed 
only for purposes of criminal investigation or prosecution.  

    Genetic testing and genetic information derived thereof 
shall be admissible as evidence and discoverable, subject to a 
protective order, in any actions alleging a violation of this 
Act, seeking to enforce Section 30 of this Act through the 
Illinois Insurance Code, alleging discriminatory genetic 
testing or use of genetic information under the Illinois Human 
Rights Act or the Illinois Civil Rights Act of 2003, or 
requesting a workers' compensation claim under the Workers' 
Compensation Act. 
    (c) If the subject of the information requested by law 
enforcement is found
innocent of the offense or otherwise not 
criminally penalized, then the
court
records
shall be expunged 
by the court within 30 days after the final legal proceeding.
 
The court shall notify the subject of the information  of the 
expungement of
the records in writing.

    (d) Results of genetic testing that indicate that the 
individual tested is
at the time of the test afflicted with a 
disease, whether or not currently
symptomatic,
are not subject 
to the
confidentiality requirements of this Act.

(Source: P.A. 90-25, eff. 1-1-98.)

 



    (410 ILCS 513/25)



    Sec. 25. Use of genetic testing information by employers. 

    (a) An employer, employment agency, labor organization, 
and licensing agency shall treat genetic testing and genetic 
information in such a manner
that is consistent with the 
requirements of federal law, including but not
limited to the 
Genetic Information Nondiscrimination Act of 2008, the 
Americans with Disabilities Act, Title VII of the Civil Rights 
Act of 1964, the Family and Medical Leave Act of 1993, the 
Occupational Safety and Health Act of 1970, the Federal Mine 
Safety and Health Act of 1977, or the Atomic Energy Act of 
1954.  

    (b) An employer may release genetic testing information 
only in accordance
with Sections 15 and Section 30 of this Act.

    (c)  An employer, employment agency, labor organization, 
and licensing agency shall not directly or indirectly do any of 
the following:
        (1) solicit, request, require or purchase genetic 
    testing or genetic information of a person or a family 
    member of the person, or administer a genetic test to a 
    person or a family member of the person as a condition of 
    employment, preemployment application, labor organization 
    membership, or licensure;
        (2) affect the terms, conditions, or privileges of 
    employment, preemployment application, labor organization 
    membership, or licensure, or terminate the employment, 
    labor organization membership, or licensure of any person 
    because of genetic testing or genetic information with 
    respect to the employee or family member, or information 
    about a request for or the receipt of genetic testing by 
    such employee or family member of such employee;
        (3) limit, segregate, or classify employees in any way 
    that would deprive or tend to deprive any employee of 
    employment opportunities or otherwise adversely affect the 
    status of the employee as an employee because of genetic 
    testing or genetic information with respect to the employee 
    or a family member, or information about a request for or 
    the receipt of genetic testing or genetic information by 
    such employee or family member of such employee; and
        (4) retaliate through discharge or in any other manner 
    against any person alleging a violation of this Act or 
    participating in any manner in a proceeding under this Act.
    (d) An agreement between a person and an employer,


prospective employer, employment agency, labor organization,

or licensing agency, or its employees, agents, or members

offering the person employment, labor organization membership,

licensure, or any pay or benefit in return for taking a genetic

test is prohibited.
    (e) An employer shall not use genetic information or

genetic testing in furtherance of a workplace wellness program

benefiting employees unless (1) health or genetic services are 
offered by the employer, (2) the employee provides written and 
informed consent in accordance with Section 30 of this Act, (3) 
only the employee or family member if the family member is 
receiving genetic services and the licensed health care 
professional or licensed genetic counselor involved in 
providing such services receive individually identifiable 
information concerning the results of such services, and (4) 
any individually identifiable information is only available 
for purposes of such services and shall not be disclosed to the 
employer except in aggregate terms that do not disclose the 
identity of specific employees.
    (f) Nothing in this Act shall be construed to prohibit 
genetic testing of an employee who requests a genetic test and

who provides written and informed consent, in accordance with

Section 30 of this Act, from taking a genetic test for the

purpose of initiating a workers' compensation
claim under the 
Workers' Compensation Act.
    (g) A purchase of commercially and publicly available

documents, including newspapers, magazines, periodicals, and

books but not including medical databases or court records or


inadvertently requesting family medical history by an

employer, employment agency, labor organization, and licensing

agency does not violate this Act.
    (h) Nothing in this Act shall be construed to prohibit an 
employer that conducts DNA analysis for law enforcement 
purposes as a forensic laboratory and that includes such 
analysis in the Combined DNA Index System pursuant to the 
federal Violent Crime Control and Law Enforcement Act of 1994 
from requesting or requiring genetic testing or genetic 
information of such employer's employees, but only to the 
extent that such genetic testing or genetic information is used 
for analysis of DNA identification markers for quality control 
to detect sample contamination.
    (i) Nothing in this Act shall be construed to prohibit an 
employer from requesting or requiring genetic information to be 
used for genetic monitoring of the biological effects of toxic 
substances in the workplace, but only if (1) the employer 
provides written notice of the genetic monitoring to the 
employee; (2) the employee provides written and informed 
consent under Section 30 of this Act or the genetic monitoring 
is required by federal or State law; (3) the employee is 
informed of individual monitoring results; (4) the monitoring 
is in compliance with any federal genetic monitoring 
regulations or State genetic monitoring regulations under the 
authority of the federal Occupational Safety and Health Act of 
1970; and (5) the employer, excluding any licensed health care 
professional or licensed genetic counselor that is involved in 
the genetic monitoring program, receives the results of the 
monitoring only in aggregate terms that do not disclose the 
identity of specific employees.
    (j) Despite lawful acquisition of genetic testing or 
genetic information under subsections (e) through (i) of this 
Section, an employer, employment  agency, labor organization, 
and licensing agency still may not use or disclose the genetic 
test or genetic information in violation of this Act.
    (k) Except as provided in subsections (e), (f), (h), and 
(i) of this Section, a person shall not knowingly sell to or 
interpret for an employer, employment agency, labor 
organization, or licensing  agency, or its employees, agents, or 
members, a genetic test of  an employee, labor organization 
member, or license holder, or of a prospective employee, 
member, or license holder. 
(Source: P.A. 90-25, eff. 1-1-98.)

 



    (410 ILCS 513/40)



    Sec. 40. Right of action. 


    (a) Any person aggrieved by a violation of this
Act
shall 
have a right of action in a State the
circuit court or as a 
supplemental claim in a federal district court against an 
offending party. A prevailing party and may recover for each 
violation:


        (1) Against any party person who negligently violates a 
    provision of this Act,
liquidated damages of $2,500 $1,000 
    or
actual damages, whichever is greater.


        (2) Against any party person who intentionally or 
    recklessly violates a
provision of this Act, liquidated

    damages of $15,000 $5,000 or actual damages, whichever is 
    greater.


        (3) Reasonable attorney's attorney fees and costs, 
    including expert witness fees and other litigation 
    expenses.


        (4) Such other relief, including an injunction, as the 
    State or federal court may deem
appropriate.

    (b) Article XL of the Illinois Insurance Code shall provide 
the exclusive
remedy for violations of Section 30 by insurers.

    (c) Notwithstanding any provisions of the law to the

contrary, any person alleging a violation of subsection (a) of 
Section 15, subsection (b)
of Section 25, Section 30, or 
Section 35 of this Act shall have a right of action in a
State 
circuit court or as a supplemental claim in a federal
district 
court to seek a preliminary injunction preventing the
release 
or disclosure of genetic testing or genetic information
pending 
the final resolution of any action under this Act. 
(Source: P.A. 90-25, eff. 1-1-98.)

 
    (410 ILCS 513/50 new)

    Sec. 50. Home rule.  Any home rule unit of local 
government, any non-home rule municipality, or any non-home 
rule county within the unincorporated territory of the county 
may enact ordinances, standards, rules, or regulations that 
protect genetic information and genetic testing in a manner or 
to an extent equal to or greater than the protection provided 
in this Act. This Section is a limitation on the concurrent 
exercise of home rule power under subsection (i) of Section 6 
of Article VII of the Illinois Constitution.