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Reckless use of genetic testing in the workplace runs the risk of abusing employees’ rights, according to a report from the American College of Occupational and Environmental Medicine (ACOEM), which calls for more stringent standards on the use of the rapidly developing tests.
The Elk Grove Village, IL-based ACOEM points to the recent suit brought by the U.S. Equal Employment Opportunity Commission (EEOC) challenging an employer’s use of genetic testing as a strong example of the need for clearer guidelines limiting the use of genetic testing in the workplace. In a recent statement, ACOEM calls for the development of specific guidelines to control the use of genetic testing by private employers.
The EEOC sued the railroad, charging that the genetic testing violated the Americans with Disabilities Act. It was the first time the EEOC had challenged genetic testing. That lawsuit is still pending, but a workers’ union brought another suit against the Burlington Northern Santa Fe Railroad, alleging that it secretly subjected employees to genetic testing.
The railroad agreed to stop genetic testing of employees represented by the Brotherhood of Maintenance of Way and the Brotherhood of Locomotive Engineers, and recently settled the union lawsuit. Previously, the company agreed to stop the testing and said it had been only a pilot program anyway. The railroad apologized at that time. (See Occupational Health Management, April 2001.)
"EEOC sought the preliminary injunction to prevent irreparable harm to employees who faced the impossible choice of potentially losing their jobs or revealing their genetic makeup," EEOC chairwoman Ida L. Castro said in a statement. "Our swift action in this case allows Burlington Northern employees subjected to genetic testing to continue work free of retaliation and future invasions of privacy" in violation of the Americans with Disabilities Act.
Burlington Northern also agreed to destroy the test results and blood samples from the 18 workers who were tested, but as part of the settlement, the railroad agreed to preserve evidence in the case until several charges of discrimination filed with the EEOC are resolved. The EEOC is continuing its investigation on behalf of 20 to 30 workers who were either subjected to genetic testing or were retaliated against for failing to submit blood samples. The commission said it may seek compensatory and punitive damages of up to $300,000 per individual.
The order was recently entered in U.S. District Court in Sioux City, IA, and will remain in place until the EEOC completes its investigation. The results also will be purged from the employees’ records, according to a copy of the settlement made public. The railroad also said it would seek federal legislation to limit the scope of genetic testing by employers. As part of the settlement, the railroad denied violating any laws.
There was no mention of damages in the settlement other than the railroad agreeing to pay $39,500 in legal fees. The settlement appears to be the end of the railroad’s problem, but it may only have ignited a debate that other employers will have to confront. Based in Fort Worth, TX, Burlington Northern was conducting the testing to see if employees were predisposed to carpal tunnel syndrome.
The settlement of the union lawsuit does not affect the EEOC lawsuit, according to an EEOC spokeswoman. She says the EEOC lawsuit seeks a court order that bars all genetic testing of workers and prevents genetic test-based discrimination. The testing, which began a year ago, involved employees who filed claims for carpal tunnel syndrome. The railway, which has about 40,000 employees, said of the 125 workers who filed claims for carpal tunnel syndrome since March 2000, 18 were tested. The tests looked for a genetic trait called chromosome 17 deletion.
Some studies have suggested that trait is more likely to produce some forms of carpal tunnel syndrome. Burlington Northern’s testing program came to light when workers from Nebraska, North Dakota, and Minnesota complained to the Brotherhood of Maintenance of Way.
The EEOC charged that a worker who refused to provide a blood sample after filing an injury claim was threatened with termination. The railway countered that no one was disciplined, and that it intended that the nature of the tests be disclosed to affected workers.
Robert Goldberg, MD, president of ACOEM, says the railroad lawsuits bring attention to an issue that could lead to the abuse of employee rights. "This particular case illustrates the great potential for the misuse of genetic testing in the workplace," Goldberg says. "Genetic testing involves the most private, confidential information about oneself, and should not be used to support discrimination in employability or insurability. Federal agencies are already barred from using genetic information in hiring and promotion practices; such guidelines should extend to all employers."
Adopted in 1994, ACOEM’s official position on genetic testing states such testing should not be performed on current or prospective employees unless it is clear that the genetic trait being screened for would directly affect job performance or would predispose a worker to significant, consistent adverse outcomes following an otherwise acceptable workplace exposure. ACOEM also recommends insurability decisions of employees by employers or others should not be based on genetic status or be used to make decisions on the issuance or pricing of health care insurance. (For full text of the ACOEM position statement on genetic testing, see "ACOEM deals with genetic screening in workplace," in this issue.)
"Employees should be informed of work-related genetic tests and should be able to participate on a voluntary basis," Goldberg says. "Employees must have a guarantee that test results will not be disclosed to others without their consent, and they should have the right to obtain their test results."
ACOEM’s Code of Ethical Conduct prohibits physicians from releasing specific test results to employers, but does permit information that is derived from specific tests that would impact an employee’s fitness to perform a particular job to be given to employers. Goldberg explains that although workplace medical records may be considered the property of the employer, this ownership does not abrogate any of the principles of medical confidentiality.
"The custodian of the workplace medical records, including genetic test information, should always be the physician or responsible health care provider," Goldberg says. "Access to the record should be controlled by the custodian."