October 11, 2005

Genetic Testing And Workers Comp

In yesterday's New York Times (the free section, registration required), we learn that IBM has a Chief Privacy Officer, which tells you something about the current state of affairs in corporate America. We also learn that IBM has issued a policy asserting that it will not use genetic information in hiring or in determining eligibility for health care and other benefits (including, I assume, disability and life insurance policies).

Before you offer a standing ovation to the CPO, remember that IBM has a vested interest in keeping genetic information off the table: as an information technology company with a increasing presence in the medical industry, IBM has a business stake in promoting genetic data gathering and processing.

There are quite a few employers who would be sorely tempted to use genetic information when evaluating job applicants or current employees. Employers who are self-insured for health care would love to screen out people with family histories of expensive illnesses. The EEOC has issued guidelines for federal employees on the use of genetic data, with congress contemplating related legislation to limit the misuse of this information among employers. But questionable use of genetic information can also flow the other way: individuals who learn that they have a genetic predisposition for a disabling illness have a strong incentive to load up on disability policies -- and in doing so, they can be reasonably confident that no insurance carrier can access this information for underwriting purposes!

Railroaded?
You might assume that genetic information would have no bearing on workers comp. Think again.

Back in 2002 the Burlington Northern and Santa Fe Railroad was fined $2.2 million by the Equal Employment Opportunity Commission for genetically testing (without permission) 36 employees who had filed carpal tunnel claims. The railroad was apparently trying to determine if the employees had a genetic predisposition for the malady -- and therefore might be ineligible for comp benefits. In agreeing to settle the case, the railroad denied that it violated disability laws (specifically, the ADA), but vowed not to use genetic tests in future medical examinations.

In this particular situation, ethical issues aside, I think the railroad was pumping the side car down a dead-end spur. Even if the tests had proven positive, with some of the employees having a genetic predisposition for developing carpal tunnel, the railroad would still have to pay the claims. It would be impossible for the employer to demonstrate that the repetitive demands of railroad work had nothing whatsoever to do with the eventual malady.

Personnel Practices
In comp we say that you have to take people as they come to you. Virtually all applicants walking through the door have issues that might eventually put them on your workers comp loss runs. Prudent employers will carefully define the essential requirements of each job, specifying exactly what people must do and how they must do it. Employers can ask questions to verify the applicant's experience and ability to perform these essential job functions. They can study prior job histories and references for patterns or problems. Once someone is hired, the employer can and should carefully supervise the work as it is being performed. Best practices focus on behavior and performance, leaving what's hidden in the genes appropriately beyond the scope of the employer-employee relationship. Let's hope that most employers can stay on the ethical track without requiring the services (or expense) of a Chief Privacy Officer.


| 4 Comments

4 Comments

We need to look beyond the use of DNA testing to exclude people to the idea that DNA testing can allow employers to assist employees to avoid and/or minimize the potentially devasting effects of their genetic predispositions on their lives.

After all, why does an employer offer health insurance as a benefit? It is, at least in part, in an effort to keep employees healthy to the point where they can remain focused on their work. Knowing that someone might have a predisposition to developing carpal tunnel syndrome will lead to taking measures BEFORE symptomology appears and will likely keep the employee healthy and productive.

Used correctly these tools can be a boon to giving America a healthy and educated work force...

Jim:
I agree with you in principle. However, the sticking point is in using the technology correctly. With all the money on the table, too many employers might be tempted to walk away from the problem (and the employee) and simply hire someone without a risk of carpal tunnel.
For a current example, look at the situation with Eddie Curry, a center formerly with the Chicago Bulls. He has a heart problem, so the team wanted to run a DNA test to see if he was at risk for a heart attack. He refused, claiming the DNA was none of the team's business (regardless of the risk to him). So now he plays for the NY Knicks, who are willing to accept him without knowing whether he's at risk. (Of course, if Curry should have a heart attack while playing for the Knicks, the team is bound to face liability issues...)
In the best of all worlds, all information would be freely available. In this world, the information might result in subtle and not-so-subtle forms of discrimination.
I'm sure we'll revisit this issue periodically. In the meantime, thanks for taking the time to write.

Jon
Has IBM just woken up? "Genetic Predisposition" is a protected category under the NY Human Rights Law. The HRL generally prohibits genetic testing (with limited exceptions) as a condition of employment. Even then, it cannot be the basis of an employment decision. With the large number of employers that they have in NY, it's nice to know that they have decided to comply.... Keep up the great posts! Diane

I am Irish so I am predisposed to drinking. I graduated high school in the 1970's so I am predisposed to recreational drug use. I am left handed so I am predisposed to being artistic.
What information about me is mine alone? Especially if it indicates I might do or have something during my lifetime? Information from genetic testing should be mine to use as I choose. If I contract with a Dr re something found as a result of the testing, so be it. For people to have a right to it AND use it for a predisposition is as Orwellian as it gets.

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This page contains a single entry by Jon Coppelman published on October 11, 2005 12:14 PM.

Effective occupational medicine: opinions wanted was the previous entry in this blog.

Genetic Testing, Part Two: The Heart of an Athlete is the next entry in this blog.

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