IN THE NEWS – PRESIDENT SIGNS BILL PROHIBITING GENETIC TESTING DISCRIMINATION IN EMPLOYMENT

President Bush signed legislation on Wednesday, May 21 making it illegal for employers to refuse to hire, fail to promote, or discharge employees based on the results of genetic testing. The Genetic Information Nondiscrimination Act of 2008 protects individuals whose test results reveal a propensity for a certain type of medical condition, or identify that person as a carrier for a genetically transmitted disease or disorder, from having that information used to deny them either employment or insurance coverage.

There are already genetic tests available that predict the future onset of Huntington’s disease, and a predisposition toward various forms of cancer. Genetic tests identify whether a person is a carrier for Tay-Sachs disease or Sickle Cell Anemia. Other genetic tests predict the likely effectiveness of various forms of drug treatments for conditions such as heart disease, asthma and cancer, providing a valuable aid to doctors in determining a personalized course of treatment. Researchers are currently developing genetic tests that will identify risk factors for a wide range of conditions, including Alzheimer’s disease, various forms of mental illness, heart disease and diabetes. Preventative genetic testing has the potential to assist many people in lifestyle changes that could delay, reduce or even stop altogether the onset of these conditions.

The problem in the workplace is that this information could also be used to screen employees, weeding out individuals who are statistically more likely to cause a disproportionate burden on the company’s health insurance plan, or be less productive in the future due to the need for medical leave. Until this week, the law was unclear and often contradictory on the issue of what, if any, use of this information was acceptable in the employment arena. Although the EEOC has taken the position that genetic predisposition to certain diseases qualifies as a disability protected under the Americans with Disabilities Act, courts had not uniformly adopted that view. Various states enacted laws in this area (Florida, for example, has a statute prohibiting employment discrimination based on the presence of the sickle-cell trait, but requires only that the individual receive notice that any other results of genetic testing were used as the basis for denial of insurance coverage or employment).

This new law will at least provide uniformity in the restriction of use of genetic testing results in the employment context, and hopefully pave the way to a healthier workforce through personalized preventative measures.