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.