The inadvertent acquisition of genetic information during a casual conversation does not violate GINA’s prohibition of the acquisition of genetic information. Congress did not want casual conversation among coworkers regarding health to trigger federal litigation whenever someone mentioned something that might constitute protected family medical history. Thus, Congress crafted an exception to address what it called the “water cooler problem.”

A question about a family member’s general well being falls within the exception; therefore, Mary could express her concern by asking how Jill’s mother was feeling or if the cancer was caught early. However, an employer may not follow up with probing questions that are likely to result in the acquisition of genetic information. Thus, Mary should not ask whether other family members also have the condition or whether Jill has been tested for the condition.

Source:  29 CFR 1635.8(b)(1)(ii)(B)