Genetic Testing

Introduced by Senate Majority Leader Tom Daschle (D-SD)and Rep. Louise Slaughter (D-NY), this legislation has provisions related toemployment and to health insurance.

    On the employment side, the bill would prohibit employersfrom making employment decisions based on information from genetic tests ofthe employee, or the employee’s family members, or on occurrences of diseasesor disorders in an employee or an employee’s family members.

    On the health insurance side, the bill would prohibitdiscrimination based on genetics in individual enrollment and group eligibilityor contribution rates. Also, employers would be prohibited from collecting orpurchasing genetic information about an employee or employee’s family members.The legislation provides for two exceptions — under limited circumstances,employers may monitor the genetic effects of certain toxic substances in theworkplace, and employers may provide genetic services to employees so long asthe results remain confidential.

Status
The Genetic Nondiscrimination in Health Insurance andEmployment Act was introduced in the Senate and House on February 13, 2001 andreferred to the appropriate committees. The legislation has received 24 co-sponsorsin the Senate and a majority of cosponsors, 254, in the House. Also, on July25 the Senate Health, Education, Labor and Pensions Committee held a hearingon the bill.

Impact
While employers generally agree with the premise thatgenetic information should not be used to render employment or health insurancecoverage decisions, most are concerned that the legislation as proposed is overlybroad in its coverage, damages, procedural requirements, and effect on certainprograms, such as employer-sponsored wellness programs. Additionally, employersargue that both Title VII of the Civil Rights Act, and the Americans with DisabilitiesAct, as interpreted by the courts and enforced by the Equal Employment OpportunityCommission, could be read or amended to prohibit genetic discrimination withoutthe necessity of a new, separate law.

    The proposed legislation’s prohibition against thecollecting of genetic information about employees or their family members failsto address what employers should do with information provided on routine healthinsurance claims, or discovered through unsolicited means. Moreover, the legislationwould require employers to bear the burden of proof with respect to whetherthe employer’s knowledge of genetic information was a factor in any adverseemployment action.

    Moreover, an individual pursuing a claim under thisbill could go directly to court without first seeking administrative reliefthrough the EEOC or other state or federal agency as is required under othercivil rights statues. State and federal administrative agencies actively investigatecharges brought before them and through this process help screen out frivolousclaims. Administrative agencies also promote timely resolution of claims, asthey impose more rigid filing deadlines. The proposed legislation, however,does not specify any statute of limitations, which suggests that claims couldbe brought at any time in the future without regard to how much time has passedsince the claim accrued.

    The most significant perceived impact of the proposedlegislation on employers is the potential for unlimited compensatory and punitivedamages for violations of the act. By way of contrast, both Title VII of theCivil Rights Act and the Americans with Disabilities Act cap combined compensatoryand punitive damages for the largest employers (500+ employees) at $300,000.Employers fear that the potential for such high damage awards would cause employer-defendantsto settle more cases without regard to their actual merit, setting a dangerousprecedent.

    Finally, many employer groups suggest that the proposedlegislation is not even necessary. They contend that genetic discriminationalready is protected under the ADA and, in some cases, Title VII. Specifically,in its 1995 Guidance on Disability, the EEOC states that genetic discriminationis prohibited under the “regarded as” prong of the ADA as well asother provisions prohibiting employers from requesting or obtaining certainmedical information. While these positions have not been fully addressed bythe courts, the groups contend that the potential for judicial interpretationis there, and further legislation is unnecessary.

To Learn More

• Viewthese bills, enter the bill number — for example “H.R. 602″under “Search by bill number”.
• Senatehearing

SOURCE: HewittAssociates LLC