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THIS WEEK'S E-TIP: Genetic Testing: Understanding the Issues
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THIS WEEK'S E-TIP: Genetic Testing: Understanding the Issues

Genetic testing has its appeal, such as potentially targeting at-risk
employees for early treatment and lowering health insurance costs. But,
most experts agree that these advantages are outweighed by the risk of
ADA and privacy claims and employee ill will.
 
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THIS WEEK'S E-TIP: Genetic Testing: Understanding the Issues

Scientific advancements in medical testing are raising new questions for
employers. Genetic tests now can help predict an individual's
susceptibility for contracting various cancers, Huntington's Disease,
cystic fibrosis, muscular dystrophy, and many other conditions.

Arguably, employers could use this information to identify both
employees and applicants who may become prematurely unable to work,
as well as those who are likely to incur substantial health care bills. And,
they could even refuse to hire, fail to promote, or fire individuals whose
genetic information puts them into one of these two categories.

So, given the personal and speculative nature of the information
provided by genetic testing, is it really appropriate in the workplace? At
least for now, the answer is a firm no. As discussed below, the risks of
collecting and using genetic information far outweigh any benefits to
employers. Find out three strategies you can implement to limit your
exposure to genetic information.

Testing Still Relatively Rare for Employers

The debate over employer use of genetic information is still largely
theoretical since most employers do not seem to be conducting this type
of medical testing. The American Management Association's 2004
Workplace Testing: Medical Testing survey indicated that just 13% of the
surveyed employers tested applicants regarding their family medical
history, and only 3.2% actually used this information to make hiring
decisions.

Still, a few high-profile cases keep genetic testing in the news. IBM
made headlines by announcing last October that it would not use genetic
information in its employment decisions. Around the same time, the
Chicago Bulls professional basketball team was widely criticized for
asking one of its players, Eddy Curry, to undergo a DNA test to
determine whether he was predisposed to hypertropic cardiomyopathy, a
heart disease believed to have caused the deaths of college basketball
player Hank Gathers and professional Reggie Lewis in the 1990s. The
Bulls were concerned about Curry's health after he had suffered two
incidents of heart pains while playing. Curry declined the test and was
traded to the New York Knicks.

Further, in May 2002, the Equal Employment Opportunity Commission
(EEOC) settled a case involving Burlington Northern Santa Fe Railroad
for $2.2 million. The EEOC alleged that Burlington Northern violated the
Americans with Disabilities Act (ADA) when it collected blood samples
from at least 36 employees who had filed work-related carpal tunnel
injury claims. The railroad sought to test these employees for a genetic
marker that shows a predisposition to carpal tunnel syndrome and did so
without their knowledge or consent. Although the company did not admit
that it violated the ADA or discriminated against employees, it agreed to
stop using genetic tests and to train its medical and claims personnel on
ADA issues.

ADA and Title VII Provide Some Protections

As Burlington Northern discovered, genetic testing raises workplace
discrimination issues even though it is not specifically prohibited under
federal employment laws. For example, while the ADA does not
reference genetic information, it does prohibit employers from
discriminating against individuals who are "regarded as" disabled.
According to the EEOC's internal Compliance Manual, employers that
discriminate against individuals on the basis of genetic information are
regarding the individuals as disabled, in violation of the ADA.

The ADA also limits the use of medical inquiries, which includes genetic
testing and questions about a person's genetic history. Thus, under the
ADA, you cannot ask about an applicant's genetic history or conduct a
genetic test prior to making a conditional offer of employment. Post
offer, you can ask all new employees to submit to a genetic test or
answer questions about their families' health history prior to their
employment. However, the ADA also severely restricts how you can use
this type of information. Specifically, you may not rescind a job offer
based on any medical condition you discover unless you can show that
the employee, even with reasonable accommodation, could not perform
the essential functions of the job or would pose a significant risk of
substantial harm to himself or others.

Finally, the ADA prohibits medical inquiries of current employees unless
they are job-related and consistent with business necessity. The EEOC
also indicated in the Burlington Northern settlement that it takes the
position that even the "mere testing" of an employee's DNA might violate
the ADA. So, as a practical matter, it would be difficult to prove that any
sort of genetic testing would meet these standards.

Title VII of the Civil Rights Act also may limit the collection and use of
genetic information since some genetic diseases have been found to be
more prevalent in certain racial and ethnic groups, such as sickle cell
anemia in individuals of African descent or Tay-Sachs disease in
Ashkenazi Jews. Thus, any use of genetic information that appears to
screen out or target a protected group could violate Title VII.
 
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States Take Lead on Testing Restrictions

As noted above, many advocates of tight restrictions on the use of
genetic information do not believe that the ADA and Title VII offer
adequate protection against potential abuse. As a result, both the House
and Senate have considered bills to prohibit employers from
discriminating based on genetic information. However, the bills have
languished in Congress and are not scheduled for any further action.

In contrast, states have been much more successful, and aggressive, in
protecting genetic information. Already, over 30 states restrict the use of
genetic information in the workplace, including California, New Jersey,
Washington, and Wisconsin. In addition, over 40 states prohibit insurers
from discriminating based on genetic information. So, you should be
concerned about state regulation and check to see what, if any,
restrictions apply to your organization.

Three Strategies to Limit Genetic Information Collection

Although the predictive potential of genetic advances may be appealing,
it is difficult in the current environment to envision any situation in which
you can safely test for or collect genetic information. The risk of ADA
and state discrimination claims and the potential effect on employee
morale far outweigh any potential gains.

And, as a practical matter, any positive test results generally show only a
predisposition for a particular condition. They cannot yet predict
accurately who will actually contract a disease. Accordingly, your best
practice regarding genetic testing is very simple – don't do it. Here are
three suggestions for limiting your organization's exposure:
  1. Do not collect genetic information. It may sound obvious, but the
    best way to stay out of trouble is simply to limit contact with genetic
    information. Remember, asking even casual questions about an
    employee's family medical history is as much a minefield as actually
    conducting genetic testing.
  2. Develop a written policy on medical testing. Even though the
    ADA allows almost unlimited medical testing at the post offer stage, you
    should focus applicant medical examinations on fitness to perform the
    job. Similarly, employee testing should be limited to medical exams that
    are job-related and consistent with business necessity.
  3. Do not make decisions based on genetic information. Even if
    you do not collect genetic information formally, you cannot entirely avoid
    getting some genetic information in the daily course of business, such as
    from disability leave forms and accommodation requests. So make sure
    you do not even appear to consider the information when making
    employment decisions. Keeping medical information in separate,
    confidential files (as required by the ADA) can help ensure that decision-
    makers do not have access to it when making employment
    recommendations.
 
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Subscribers to the Personnel Policy Manual and HR Policy Answers on
CD can find more information on ADA restrictions on medical inquiries
and tests in Medical Procedures, Chapter 203, notes 9 and 10.

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