Emerging Tech

Now employers may penalize for health conditions that haven't happened yet

The genomics industry is picking up a head of steam. With it come fears that employees could be penalized for conditions they don't have yet but could develop.

So far we know that in employment issues, you can be discriminated against for anything you say on a social networking site, anything you ‘like' on Facebook, how your name is spelled, how old you are, how much you weigh, if you have kids, and oh, the list goes on and on.

What if I told you now there was a way you could be discriminated against because of health problems you don't yet have but have the predisposition for? With the new genomics industry gaining a head of steam, it's not entirely out of the question.

Companies that specialize in consumer DNA analysis are popping up everywhere. Although some, like Navigenics Inc., of Foster City, California, work only through physicians and corporate wellness programs, some offer their services to everyone.

One such company is 23andme Inc., founded in Mountain View, California, by Anne Wojcicki (the wife of Google co-founder Sergey Brin). For $99, customers get a kit that allows them to collect a saliva sample from which a DNA analysis is made. After about eight weeks, customers learn their personal risk of developing numerous conditions. (What shocked me is the number of conditions that currently can be predicted through DNA analysis--The number is currently 193, but ongoing research continues to push that total up.)

Now, what does this have to do with employment? Well, what would keep an employer from taking you out of consideration for a promotion if he or she knows that that you carry the gene for breast cancer? The easy answer to that would be morals and ethics, but, well, we've seen too many cases where those characteristics don't necessarily come into play.

Is this legal? It depends. Some companies use the test results to determine parameters for corporate wellness programs. Some need them as verification for an employee who is asking for certain accommodations for a condition under the ADA. Smart companies make sure to add language in the contracts (GINA safe harbor wording) that specify they don't want details related to health conditions that don't apply to the issue at hand.

For example, if the employee is given a survey by a company, the company must make it clear that the employee doesn't have to provide genetic information to be eligible for a wellness bonus:

Here's a survey. Questions one through 20 pertain to your family medical history. You do not have to answer these questions to qualify for the $150.

The problem is if a supervisor and employee are friends on Facebook and that employee posts something about a finding from the DNA test, the supervisor can inadvertently obtain genetic information. So, yes, yet another reason to watch what you say on Facebook.

About

Toni Bowers is Managing Editor of TechRepublic and is the award-winning blogger of the Career Management blog. She has edited newsletters, books, and web sites pertaining to software, IT career, and IT management issues.

24 comments
Marc Erickson
Marc Erickson

Any country that has single payer medical care systems don't have this problem - because the payer is the government, who must treat all users equally. This is is sort of thing that arises in a system that countries like the United States subscribe to. In other countries, people believe that this sort of conduct is IMMORAL. Those countries believe it is immoral for a wealthy country to not find a way to provide health care for all of its citizens. Even if that includes paying the medical bills of someone who's gamed the system and will get health care they aren't allowed to receive under that jurisdiction's rules. We don't understand why you have a problem with this - if someone gets sick, they should get the necessary care that has been paid for so that they're healthy again. Because then they'll pay the taxes to pay for the care. It is beneficial to EVERYONE in the long run. Even if you use only accounting measures to quantify the results. Vancouver Computers Examiner http://www.examiner.com/x-34009-Vancouver-Computers-Examiner A Canadian Geek http://www.lockergnome.com/nexus/marcerickson Open Salon http://open.salon.com/blog/marc_erickson

gradkiss
gradkiss

I and others may send the N.S.A. a thank-you note for being so good with our privacy and consent issues...LOL

Dr_Zinj
Dr_Zinj like.author.displayName 1 Like

And consider a society where the majority of havenots are denied everything based on the whims of the few haves. Such a society instead of egalitarian capitalism becomes one of where might makes right. If it's legal to deny people their needs based on such a plethora of criteria, including their need for a viable livelihood; then those people have no legal recourse to appeal to. If the law won't give them a fair shake, then they have no incentive to stay within the bounds of law. The right thing becomes any means of taking what you need, by deception, misdirection, even by force and violence. And that's a world I'd hate to live in.

kissrocks92553
kissrocks92553

Employers who embark on this path are simply opening up themselves to lawsuits and making the road harder to travel, one day employers will set the bar so high they will hurt themselves, everyone has the right to work, if you want to discriminate because they found out your a candidate who is predisposed to a form of cancer because of your jean pool that is so incredibly unethical.

Alpha_Dog
Alpha_Dog

From our EOC poster: GENETICS Title II of the Genetic Information Nondiscrimination Act of 2008 protects applicants and employees from discrimination based on genetic information in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. GINA also restricts employers??? acquisition of genetic information and strictly limits disclosure of genetic information. Genetic information includes information about genetic tests of applicants, employees, or their family members; the manifestation of diseases or disorders in family members (family medical history); and requests for or receipt of genetic services by applicants, employees, or their family members.

Dknopp
Dknopp

And they are not supposed to discriminate as far as age too, and we all know that one is totally ignored. Take the "wellness clinics" - nothing more than data collection that they cannot get from doctors - they know you are using say... blood pressure meds or diabetes meds, so they want to fill in the rest.

bboyd
bboyd

Hope more people get to see that kind of info than is happening now. Problem is no matter how many see it certain individuals will just use the info at will anyway. Heck the whole insurance industry is built on leveraging the data of the masses.

Alpha_Dog
Alpha_Dog

grabbed the data right off the PDF

realvarezm
realvarezm

Is incredible how fiction is becoming everyday more real. In this movie talks about the chosen newborn improved by handling their genetics and how this will create a new kind of discrimination, but in one take of the movie, a girl just went to dinner with a prospect for boyfriend and in a napkin after the dinner she goes to a booth where they practice this test on the saliva in that napkin, in minutes she have the result of every disease the guy will suffer and the total of years to live. Frightening but that's how it will happen. The sad part is that I already have 2 kids and with the discrimination we already have is difficult to live and to add one more kind is going to be hard for them. Like a Wiseman said I fear not the future, but the people building it.

jacobus57
jacobus57

I find this had to believe, and if it is happening, indefensible. All that is required is the request, and in some cases physician verification. This is a class action suit ripe for the picking. The other thing is--why would ANYONE submit to a commercial genome sequencing? The stupidity of that action should be grounds for exclusion from the gene pool and hiring pool! Yes, people with a history of Huntington's Disease, who may have the BRCA-2 mutation, etc, have the option of PROFESSIONAL PHYSICIAN-AUTHORIZED screening, which is not only protected, but which allows the data--which can often be devastating--to be presented, managed, and followed by PROFESSIONALS. If this was ever asked of me, be it for a "wellness screening"--which is total BS, or as a condition of employment, the answer would be a resounding, unequivocal NO!

mattohare
mattohare like.author.displayName 1 Like

More and more, an employee's health is becoming the responsibility of the employer. Almost to a parental extent, too. It's not just a case that we have to deal with time off work, or poor work quality. Now we have to pay for the care as well. Everyone gets sick now and again. And, there will be the odd person with special needs. And, you know what? I'm happy to pay for that. For any loss I get in a genetic employee lottery, I'm sure I'll have a few wins as well. I do draw the line with someone that has so many bad habits that they look like an advertisement for death. I don't see that I should have myself and all the employees pay a higher price for health care because a minority choose to make their lives more expensive.

Dknopp
Dknopp

So, what is a bad lifestyle choice? I know several people who cannot say no to sweets, they are very overweight, and in their 40's, so why do they not have ...say type 2 diabetes? On the converse side I have a friend who has always been healthy always active, actually dislikes sweets, and he has type2 diabetes. The difference? The large people I know have fat that is on the outside of their abdomen while the small amount of fat that the diabetic has in IN his abdomen, a genetic trait he has from the fight or flight response physiology He is a succesful, but stressed individual and the stress hormones tend to create and concentrate his small amount of fat in his abdomen - a marker for diabetes. So the overeating overweight person with out diabetes shows bad habits the non-overweight one with diabetes does not. You need to watch yourself when it comes to peoples health it is not all about bad habits - it is primarily genetics. By the way type A personalities - the kind of people that companies love ( not a bad habit? )- tend to be very stressed, with the health problems associated with it.

mattohare
mattohare

I'm talking about some obvious things. Never exercising (to the point of driving around the corner for a packet of crisps). Smoking. Drunk every night. Stoned or high all the time. You may be able to come up with some things to look like grey areas, but there are some choices that are just bound for early harm and more sickness. I take care of myself, and I expect employees to do the same.

eye.tea
eye.tea

I wonder if the type of stress that affects "type A personality" employees who were NOT laid off in the most recent RIF is the same type of stress that could trigger an illness according to their genotype...that then affects their productivity, that then affects their employer's bottom line... I don't know. Do you feel any stress when 10% of your department is suddenly let go?

Dknopp
Dknopp

Maybe not as much as if you were the one laid off, but it is still there. Dodging the bullet over and over ( NO one is too important to not be laid off ) can wear you out. It's the cherry picking that gets to me, as you make more and more money you get more and more vulnerable to cherry picking. Interesting enough, even good stress ( getting butterfly's in your stomach because you are going out and buying that new thing, or bungee jumping ) has the same effect with the same hormones, we just do not experience the good stuff as often, or as long, as the bad stuff.

popova71
popova71

But how many employers would like to get winners only? And what if you are marked as DNA loser?

AnsuGisalas
AnsuGisalas

Specifically, it should be illegal for employers and insurance companies to obtain genetic data, and if they obtain it, it should be illegal for them to act upon it. If a person is fired and their company has genetic data on them, this should be seen as evidence of wrongful termination. The problem with insurance companies is, that they already penalize everybody for the statistical occurrences of all non-lifestyle illnesses (check out what insurance science is), so for them to further eliminate the sources of this statistical occurrence is to let them write out checks for themselves. They have to follow strict standards, on account of their importance in today's society.

mattohare
mattohare

If it is solely on DNA, then it'd be a case of decrimination based on a perceived handicap (that may not exist) without regard for ability to do the job.

Alpha_Dog
Alpha_Dog like.author.displayName 1 Like

Classify Genetic information and markers as medical information which would make it subject to HIPAA regs.

bboyd
bboyd like.author.displayName 1 Like

then its not HIPAA protected. Perhaps you got a blood chemistry screening through the company and the "wellness" director/employee took the information then all the HIPAA classifications do no good. Same with the info if you agree to make it available in some arcane license agreement. Say you want that free genetic screening. Poof, its in a salable database that you company purchases access to and now they have it outside of HIPAA protections. Or worse you go to get insurance and the Insurance company looks the data up since "they" paid for the screening database.

Alpha_Dog
Alpha_Dog like.author.displayName 1 Like

If the class of information is subject to HIPAA, the testing center and holder must abide by these regs or face an enormous fine. There is no grandfathering of information that predates the law either, nor does it matter who paid for the screening.

bboyd
bboyd like.author.displayName 1 Like

Just look back at the de-anonymization test in recent history. My favorite being the one that used the medical databases in Massachusetts. I'll dig a bit later and try and find a link.

AnsuGisalas
AnsuGisalas like.author.displayName 1 Like

Whatever you do, and whatever the need, don't use the company restroom... [b]they'll have ownership of your [i]"deposit"![/i][/b]

Alpha_Dog
Alpha_Dog like.author.displayName like.author.displayName 2 Like

...it takes all the joy out of it to know that these employers have a use for the crap I give them in return. :(

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