July 28, 2014
The mapping of the genetic code of human life: it sounds improbable, thestuff of science fiction. But it’s now possible to test people forpredisposition to diseases, and as the practice becomes more widespread andpractical, an array of issues -- scientific, moral, and political -- willemerge. And add to that employment-law complexities. Already, observers arewarning that legislation must be put in place to protect the privacy rights ofindividuals. Will employers deliberately screen out candidates who have a highlikelihood of contracting certain diseases? Can they? What are the pragmaticuses of genetic testing, if any? Frank Morris, an expert disability attorney inthe Washington, D.C., office of employment-law firm Epstein Becker & Green,offers a peek at the future.
We now have the possibility of meaningfully doing this. Up until now, youcould do genetic testing for a few very specific conditions. Now you have theprospect of doing it in a much more generalized fashion. So you could takeyour two-page list of everything that might go wrong with the genetic code anddetermine whether or not any individual has any problems. So the question ofall-out testing will arise. What does the mapping of genetic codes mean to employers? As we fully learn what the gene coding will mean in terms of susceptibilityto potential diseases, there are many within the employer community that wouldhave an interest, for better and for worse reasons. Among the worse would beto try to simply screen so as to have better insurance-risk profiles. I thinkthere’s a pretty good argument that the ADA might very well prevent that. Ifnot, there would be legislation quickly introduced to address the situation ifa widespread practice arose of employers trying to base employment on thegenetic testing of potential employees. So there may be a complete ban on using genetic testing in employmentdecisions? On one level, you’d ask what possible interest does an employerlegitimately have here, and in the larger number of cases that’s probablytrue. On a different side, consider an individual who’s flying a 747 jetwith 300 passengers on board who may be subject to catastrophic events of aphysical or mental nature. Wouldn’t society at one level say to an employer,"You should be using every tool in your possession to screen out thosewho would put at risk those 300 passengers"? So here’s where it getsinteresting. So certain jobs may elicit testing more than others? You can quickly posit certain jobs and situations. Any job where a medicalproblem would make it difficult or dangerous for the person to perform.Consider an employer that manufactures chemicals. Wouldn’t it be great toknow if a certain person ought not to be employed producing a particularchemical agent? Because of testing, we can know that that individual has agenetic structure that makes him susceptible to illness if exposed over longperiods to this chemical. I’m not saying there’s a violation of OSHA inthe manufacturing process, but that the lawful five-parts-per-billion standardthat protects 99.9 percent of the population might not protect Thomas Smith. Should an employer be able to find that out and screen out Thomas Smith fromthat job? That has two implications. On a base money level, if the employerdoesn’t test, and Thomas Smith becomes disabled, for the next 30 years,disability benefits are going to be paid to him. At another level, if theemployer doesn’t test, the company gives Thomas Smith a job that leaves himunable to enjoy a full and happy life because the company didn’t use theknowledge available. Is there concern that legitimate testing will lead to non-legitimatetesting? Society is not going to allow you to have genetic testing just so you canhave less utilization of your health plan. It just won’t happen, andemployers shouldn’t be going there anyway. But there are issues, even inlegitimate testing. The whole notion of doing any testing opens up the wholeissue of what happens to that information and the potential for adverserelease. It happens. I had a case not long ago of an individual who was HIVpositive. The person’s medical claim forms came through the HR office, andthe individual who normally processed those was out. The paperwork sat in thetop of the in box for days, so individuals who came into the office and werevaguely snoopy saw that information, and pretty soon everyone in this facilityknew the employee was HIV positive. So when you have this kind of situation,you open the possibilities that something inadvertent would happen and theinformation would be disclosed. The ADA requires employers to keep medicalinformation separate from other employee personnel files. But you could seethe mischief that could quickly arise if we have employers who have access togenetic testing of their employees, and then that information were improperlydisclosed. What are the employer liabilities of not using genetic testing? Let’s say we don’t test. And we have a medically triggered event that wemight have had pertinent information about had we tested. Now the airplane hascrashed and killed 300 people. We know there will be a lot of lawsuits filedthe next afternoon. Will one of the claims be that we were negligent in notusing every available screening device to make sure we had the most qualified-- including physical and mental capacity -- pilot corps available? And whilebefore the accident most people would be saying we shouldn’t be going there,after the accident there would certainly be a lot of people saying we mostabsolutely should have gone there. So what’s the responsible approach for employers to take right now? The employer community needs to become proactive and make it clear that itdoes not want to use genetic testing for improper purposes. Perhaps employersshould work with the EEOC, with Congress, to delineate certain situationswhere, because of health and safety concerns, testing should occur. Theyshould establish protocols to protect the privacy of individuals and protectagainst abuse in the use of information. But they need to establish aframework rather than having one employer be out there on the firing linetrying to do the right thing, and then having people after the fact saying,While we applaud your goal, the way you did it was wrong, and therefore -- 10million bucks. The way employers are going to have to approach this verydifficult issue, which cuts across lots of interest groups and lots ofinterests, is to try to get a consensus, get the issue broadly considered, andcome up with safe-harbor circumstances where testing would be permissible, andsafe-harbor procedures for doing so. How do you see that fleshing out? It should be approached much the way we handle substance-abuse screening.There are protocols for screening and certain labs that have been certified togive accurate results. And if you follow the appropriate protocols and use acertified lab, then generally speaking, there will be no adverse consequencesfrom having a substance-abuse testing program. While this may be certainlymore difficult than coming up with the protocol for a substance-abuse testingprogram, the goal nonetheless would be to establish a carefully considered,broadly accepted protocol within those limited circumstances where it’sappropriate.
- How practical is testing right now?
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