|Issue No 122||07 December 2001|
Wearing the Right Genes to Work?
Matt Brooks tracks the DNA trail to discover genetic testing in the workplace is already here.
Experts call it the human genetic information age, a period with unprecedented potential to both SAVE and WRECK lives. According to the Australian Law Reform Commission and the Australian Health Ethics Committee's joint community consultation issue paper 'Protection of Human Genetic Information', released earlier this month, a balance must be found between safeguarding genetic technology from discriminatory misuse and using its enormous medical and scientific potential.
The public debate paper raises a number of ethical questions concerning the use of genetic testing for pre-employment screening and for reducing employer's exposure to both workers compensation claims and increasing premiums.
In February the federal Attorney General asked the Australian Law Reform Commission (ALRC) and Australian Health Ethics Committee (AHEC) investigate what type of regulation would be required to safeguard the future use of human genetic samples and the information these contained. The two federal agencies were asked to specifically consider the protection of privacy, the protection from discrimination and the establishment of ethical guidelines for the world's best practice in using genetic information. The joint inquiry is considering these three themes in relation to a number of contexts in which genetic information may be applied, including workers compensation and workers compensation insurance. Assisted by a recently established Advisory Council, consisting of medical, legal, public administration, employment and insurance experts, the ALRC and AHEC established a three stage, 16-month, framework for the inquiry.
Genetic Testing for Employment
In the latter stages of the 20th century medical and psychological testing of job applicants became common place throughout Australian workplaces, with some employers also including mandatory drug screening. This trend is why civil liberty and employee groups believe it is just a matter of time before genetic testing is also a matter of course in the workplace. However, as Dr Breen, Chair of AHEC says, it is a matter of identifying potential misuse and then legislating against it, rather than viewing it is as inevitable.
"At this stage it is more of a case of potential misuse rather than actual misuse," Dr Breen said.
Genetic testing for employment may only be of theoretical concern in this country at present but there is abundant evidence of increasing societal apprehension surrounding the issue. Perhaps a lack of any real knowledge about the subject fuels these fears.
"The Australian public needs to form a greater understanding of the issue and become educated on how employers may seek to access genetic information," The ALRC's Associate Professor Brian Opeskin said.
Further technological developments, making it easier and cheaper to genetically test employees and job applicants, but no present legislation to safeguard against such, have alarm bells ringing.
There is widespread community concern over employer's powerful potential to misuse genetic information. In Australia a Sydney Morning Herald internet poll found 93.5% of respondents wanted the Government to ban genetic testing in the employment, insurance and banking sectors until detailed legislation was in place.
A 1998 United States national survey found a similar trend, with 85% wanting employers prohibited from testing for, or obtaining, genetic information. Of those polled 36% said they would refuse genetic tests and 27% would definitely refuse genetic tests if employers and insurers could access the information.
"There is the potential for employers to want to genetically test employees and there is nothing to stop that happening now. The community wants, in fact demands, legislation and ethical codes of conduct be put in place as soon as possible," Associate Professor Opeskin said.
Two types of genetic testing for the workforce
The two types of genetic testing which have direct applications to Australian workers are genetic screening, which is conducted just prior to an offer of employment and genetic monitoring, conducted routinely during employment.
Genetic screening involves testing a job applicant so 'high risk' individuals can be identified and excluded from an employer's workforce. The testing may be 'susceptibility screening', which identifies a gene, or genes, that may in to which the person operates. Secondly, the testing may involve simply screening an individual to identify potential genetic disorders, unrelated to the workplace, but which may lead to future workers compensation claims.
This type of genetic exclusion is not unknown. Indeed, it is only the actual testing which is new. In the 19th century 'visible' testing was commonplace in many labour intensive industries. For example, once it was proved labourers exposed to tar, creosote and other petroleum based products had a significantly increased rate of developing skin cancer - and pale skinned workers were at even greater risk, it was common practice for fair skinned people to be rejected from any petroleum based industry.
More recently, a United States laboratory was found to be testing its administrative staff for sickle cell anaemia, pregnancy and syphilis, without the workers knowledge, or consent.
In workplaces where exposure to hazardous substances is routine, ongoing health monitoring is standard OHS practice, or should be. However, combining this with regular genetic updates poses some serious privacy and anti-discrimination issues. Making it even more complex is the fact genetic monitoring can, and probably will, save lives.
The OHS Case for Genetic Monitoring
Periodic examination of the gene's of an employee exposed to harmful substances will help determine how much change is taking place to them as a result of their work environment. This change is referred to as "modifications' and these include chromosomal damage and molecular mutations. When such modifications are clearly visible via genetic monitoring the employer should take preventative action by relocating the employee within the workplace, or removing them from it altogether. This is a positive example of genetic monitoring, according to Dr Breen.
"There are potentially enormous benefits of genetic testing in the workplace. People genetically predisposed to certain conditions can be advised to avoid working in certain environments detrimental to their genetic make-up."
Post Chernobyl Russia has utilised genetic monitoring by testing children of workers used to clean up after the nuclear meltdown. Researchers found these children suffer seven times the mutation rate of children whose parents were not exposed to high level radiation. Genetic monitoring will continue to determine if these children's offspring show further mutations and the ongoing health implications this poses for Chernobyl workers' future generations.
The case against... conditional and disability discrimination
Discrimination, on any basis, is not new in Australian workplaces. Employers have been found guilty of discriminating against both employees and job applicants in relation to a number of conditions and/or disabilities which include colour blindness, psychiatric conditions, neurological conditions, epilepsy, RSI, prosthetic limbs and HIV/AIDS.
And it has already been established genetic testing has been used for discriminatory purposes, as Dr Breen explains: "There have been well documented cases where genetic testing was used to indirectly discriminate against particular ethnic groups, as certain groups carry a higher incidence of a particularly pre-determined condition."
If employers are allowed to genetically test their workforce, it is argued, the potential for discrimination is infinite. People, otherwise healthy at testing, may show signs of future susceptibility to a certain disease or disorder. The latest scientific evidence suggests there is no direct correlation between having a genetic susceptibility to a certain disease or disorder and actually developing it, as Associate Professor Opeskin outlines: "A genetic pre-disposition to some kind of condition does not necessarily mean a person will automatically suffer that condition at a later stage. There are multiple genes involved and very few situations are definite. It is all a case of probability and risks."
However, try telling that to an employer, civil libertarians argue.
The major concern is despite the Commonwealth's Disability Discrimination Act 1992 (DDA) which stipulates all individuals should be treated alike, except where their circumstances are so 'materially different' they justify different treatment, genetic testing will make it increasingly possible to identify a material difference. In fact, identifying a genetic material difference between one human being and another is limitless.
Workplace Relations Act
The Commonwealth's Workplace Relations Act 1996 (WRA) stipulates an employer can not determine an individual's suitability for work based on race, colour, sex, religion, physical or mental disability, birthplace, social origin and so forth. However, the employer may do so when one of these renders the employee unable to fulfil the 'inherent requirements' of the job.
This exemption is even broader than the DDA's and again, has both negative and positive aspects. One of the most obvious negative implications is unscrupulous employers may utilise genetic testing to provide evidence of a disorder that renders an individual as unable to fulfil the role's inherent requirements, where none could be found conventionally.
On the positive side, genetic testing can indicate future health problems and better determine an individual's ability to fulfil a position's inherent requirements.
It is feared employers in the future may use genetic information to minimise their workers compensation premiums. An unscrupulous employer could screen their workforce, identify possible health risks based on both general genetic information and specific genetic information highlighting employees most at risk to their particular work environment - and dismiss them.
Alternatively, employers in the future may seek to obtain waivers of liability from those employees identified via genetic testing as susceptible to future health problems, or may argue such liability was implicitly waived by the fact employees who knew they were 'at risk' chose to work regardless.
It is also possible for insurance companies providing workers compensation coverage to pressure employers to genetically test their workforce, so as to 'weed out' susceptible individuals from their workforce.
Both Norway and France have imposed stringent restrictions on genetic information, with bans on any form of genetic testing for employment already in place. Fellow European countries, Spain, Netherlands and Denmark have legislated against genetic testing unless there is an unambiguous health requirement for the job or where genetic testing is required to ensure the adequate protection of an employee's health in the workplace.
However, The United States, the United Kingdom and Australia are still grappling with the widespread implications of legislating for the genetic information age. The US has been particularly slow to act, considering the Sante Fe Railway Corporation was found guilty by the United States Equal Employment Opportunity Commission recently of undertaking workplace genetic testing of their workforce for carpal tunnel syndrome (CTS) or RSI.
The Last Word...
There are numerous other issues regarding genetic testing which have not been outlined here, including privacy implications and an individual's right to know, or not to know, as the case may be.
The issue, because of its complexity, not despite of it, is of vital importance to us all and one which Australia has taken a pro active role in addressing. This must be a good thing for both Australian employers and employees alike. Perhaps the last word should go to the AHEC's Chairperson, Dr Breen who believes the matter is a difficult, but achievable balancing act.
"It is crucial Australia achieves the best balance to protect against the misuse of genetic information, while maximising the health and scientific benefits which will flow from this amazing technology," Dr Breen said.
Matthew Brooks is Editor, Compensation Week (CCH Australia Ltd.)
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Last Modified: 15 Nov 2005