Privacy, bias laws present hurdles

Efforts to utilize genetic testing in the workers compensation sector face challenges as a result of privacy concerns and fears that employees’ genetic material could be used to discriminate against them, experts say.

Large insurers are leading the way in examining the possible uses of genetic testing in workers comp, but implementation is still a ways off because of privacy concerns, said Bert Randall, president of Baltimore law firm Franklin & Prokopik P.C.

“This is one of the many areas where employment statutes and regulations overlap with workers comp statutes and schemes,” he said.

When considering genetic testing in a workers comp case, an employer must be sure that the request will not lead to a federal Genetic Information Nondiscrimination Act or similar state violation, and that a test result doesn’t trigger an Americans with Disabilities Act violation, said Mr. Randall.

Even if the genetic information is collected in purely voluntary circumstances and is compliant with GINA and related state statutes, employers still could be opening themselves up to litigation if the employee claims that the gathered information was used as the basis for discrimination, Mr. Randall said.

“Simply by possessing that information raises their risk and allows one other avenue for an aggrieved employee to file a lawsuit,” Mr. Randall said.

Joseph Lazzarotti, principal in the Berkley Heights, New Jersey, office of Jackson Lewis P.C., said an area of concern in using genetic testing in workers compensation is that sometimes records are generated and wind up in the hands of the employer.

“Employers can find themselves having a lot of access to information that’s not needed,” and if that possession occurs, GINA and oftentimes more stringent state laws come into play, he said.

Albert Lin, Martin Luther King Jr. professor of law at University of California, Davis’ School of Law, who has studied the legal implications surrounding toxicogenomics — or genetic testing to determine susceptibility to toxins — said in workers compensation, asking people to subject themselves to a test has ethical implications, privacy concerns, and apprehension about what someone might do with that information.

“If an employer has access (to someone’s genetic information),” there are concerns that it could be used in a way that is discriminatory, said Mr. Lin.

Pre-GINA, courts still favored the protection of genetic information. In 2001, the U.S. Equal Employment Opportunity Commission settled a complaint the agency filed against Burlington Northern Santa Fe Railway Co. for requiring about 20 employees who sought workers compensation for carpal tunnel to submit to a genetic test to see if they had a chromosome deletion claimed to cause carpal tunnel.

GINA took effect in 2008.

More recently, in 2017, the Louisiana Department of Insurance’s Workers Compensation Advisory Council voted to draft a cease and desist letter to a genetic testing lab after a workers compensation patient accused the testing lab and third-party administrator Broadspire Services Inc., a subsidiary of Atlanta-based claims management firm Crawford & Co., of requiring him to undergo pharmacogenetic testing to check for genetic variants related to metabolizing pain medications. Broadspire responded in a memo to the council that the testing was recommended by the physician and completely voluntary.