Genetic testing of employees as part of a hiring or firing strategy could land an employer in court. Taking the lead to avoid such a scenario, I.B.M. has decided not to use genetic information when considering hiring and firing employees as well as when determining eligibility for health care and other benefits. I.B.M. made its decision as new genetic privacy legislation is being considered by Congress.
Genetic testing has been used to determine a person’s likelihood of contracting certain life-threatening diseases, such as various forms of cancer. Employees and employee advocacy groups have been urging Congress to pass legislation that would prohibit employers from using genetic information when making employee retention and health benefit decisions. The Senate has passed a genetic information nondiscrimination bill, and the House is considering similar legislation. About 40 states have laws that address some aspect of genetic privacy and discrimination
Genetic data has often been used without workers’ knowledge. In 2002, for example, there was a $2.2 million settlement that the United States Equal Employment Opportunity Commission reached with the Burlington Northern and Santa Fe Railway Company. The railroad, it was claimed, tested or wanted to test, 36 of its employees without their knowledge or consent. According to testimony, the company performed the tests to prove that workers’ arm injuries stemmed from a rare genetic condition, not from work-related stress. The railroad, while not admitting it broke any laws, agreed to prohibit its doctors from using genetic tests during medical examinations.
Privacy provisions in the Health Insurance Portability and Accountability Act plus those in disability and civil rights laws already prohibit the use of personal medical information when making hiring, firing, and benefit decisions; however, those laws deal with existing conditions, not with ones that may develop in the future.
We regularly work with employers, creating hiring and termination programs as well as health care benefit programs that do not run afoul of federal and state laws and regulations.
