Category Archives: council for responsible genetics

EEOC Seeks Injunction to Stop Biometric Testing at Honeywell

Yesterday, in an extraordinary move, the EEOC filed a petition for a temporary injunction against Honeywell International, Inc. in the U.S. District Court of Minnesota. The reason? Honeywell’s implementation of biometric testing for employees and their spouses as a part of its medical insurance program. According to the EEOC petition, if employees or their spouses fail to participate in biometric testing, they will lose Honeywell’s contribution to their HSA and face up to $2500 in health insurance surcharges. The EEOC argues that Honeywell’s program, which is scheduled to start biometric testing this month, violates the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. Like its two recent wellness program lawsuits, this action, which asks the court to stop the testing, breaks new ground for the EEOC.

The ADA prohibits employers from requiring employees to submit to medical examinations that are not intended to determine whether an employee can perform the essential functions of the job. It also restricts the health-related information employers can seek or obtain and prohibits medical or health-related testing that is not job-related or consistent with a business necessity.

GINA prohibits discrimination on the basis of genetic information in “any aspect of employment.” GINA also prohibits employers from obtaining family medical history information – including for wellness programs and medical insurance – if the information could be used to affect a term or condition of employment. Medical insurance premiums are viewed by the EEOC to be a term or condition of employment. In its petition to stop Honeywell’s testing, the EEOC argues that the inducements and penalties related to spouses’ participation violate GINA.

According to its petition, the EEOC is seeking an injunction, rather than simply filing suit against Honeywell, because the agency and Honeywell employees will be “irreparably harmed” if biometric testing goes forward.

Although not referenced in the EEOC’s legal action, Honeywell might also want to take a look at laws that prohibit discrimination against employees because of their consumption of lawful products during non-work time. These laws protect employees’ right to consume products – like tobacco – while off duty, and restrict employers’ ability to discipline, discharge, or impose other negative consequences on employees because of their consumption. Statutes related to lawful consumable products vary from state to state, but some, arguably including the statute in Honeywell’s home state of Minnesota, could be the basis for additional claims against Honeywell.

At this writing, Honeywell has not responded publicly to the petition. We will watch for its response and the court’s decision with great interest, and keep you posted.

Posted by: Judy Langevin and Kate Bischoff , The Employment Law Navigator

EEOC Sues Home Care Agency for GINA Violation – Genetic Information Nondiscrimination Act

On September 17, 2014, the Equal Employment Opportunity Commission (“EEOC”) issued a press release announcing it is suing BNV Home Care Agency, Inc. (“BNV”) for practices that are prohibited by the Genetic Information Nondiscrimination Act (“GINA”).

GINA prevents employers from requesting genetic information, including family medical history, or using that information in the hiring process. According to the release, BNV asked for family medical history from a class of thousands of applicants and employees through an “Employee Health Assessment” form. BNV applicants were required to complete the form after a job offer was made, but before hire. Employees had to complete the form annually.

BNV should serve as an important reminder that neither employers nor contracted third-party providers (i.e., doctors’ offices that conduct employment-related physicals or tests on the employers’ behalf) should use forms that ask for applicants or employees to disclose family medical history. In January 2014, just ten months after the EEOC filed its first systemic lawsuit alleging violations of GINA against a nursing and rehabilitation care facility, the agency settled the case for $370,000.  At the time, the EEOC warned that, “When illegal questions are required as part of the hiring process, the EEOC will be vigilant in ensuring that no one is denied employment opportunities on a prohibited basis.” In addition, addressing emerging and developing issues in equal employment law, which includes genetic discrimination, is one of the six national priorities identified by the EEOC’s Strategic Enforcement Plan. In short, employers can be sure that the EEOC is on high alert for any employment practices that may violate GINA.

Brandon K Johnson, National Law Review

Ca Governor signs DNA Protection Act

Somebody note the date and time: Assemblyman Tim Donnelly, the conservative former gubernatorial candidate who spent much of the spring trashing Gov. Jerry Brown, just said something nice about … Gov. Jerry Brown.

Brown on Friday signed Donnelly’s AB 1697, the DNA Protection Act, which prohibits using the state’s criminal-justice DNA database from being used as a source of material for testing, research or experiments by any person, agency or entity seeking to find a causal link between genetics and behavior or health.

“I would like to thank Governor Brown for standing with me once again to defend the civil liberties of all Californians,” Donnelly, R-Twin Peaks, said in a news release. “California will continue to use DNA samples for forensics, missing persons, collecting evidence or other legal means. With AB1697 now law, we have prevented government from abusing our privacy. We have protected the civil rights of all Californians from this high tech tyranny.”

Donnelly said the new law is critical to protecting those who’ve been arrested from the government’s genetic snooping.

“Currently, the government of California has hoarded over 1.8 million DNA samples,” he said. “As the cost of DNA sequencing decreases and the ability to process large amounts of data increases, the state has the unprecedented ability to link genetics with criminal activity. While this may sound like the movie ‘Minority Report,’ it is no longer science fiction. Thanks to AB1697 becoming law, the DNA of every Californian will be safe from being violated by an ever-intrusive government.”

The bill certainly wasn’t controversial. The Assembly passed it 78-0, and the state Senate passed it 33-0.

Josh Richman , Mercury News

FBI seeks to add Rapid DNA to biometric database

This week, the U.S. Federal Bureau of Investigation announced a plan to accelerate the collection of DNA profiles for the government’s massive new biometric identification database.

The FBI Laboratory, along with the Bureau’s Criminal Justice Information Services Division, have said that they are actively collaborating to develop a streamlined approach towards automating DNA collection processes from qualifying “arrestees” and offenders that are in custody during arrest, booking or conviction.

The goal of the FBI plan is to integrate “Rapid DNA” technology into the the agency’s biometrics-driven Next Generation Identification (NGI) system. Rapid DNA is defined as the use of portable cheek swab DNA machines in the field that can be used by law enforcement officers to initiate expedited DNA analysis. Portable DNA machines are designed to make suspect matches within 90 minutes by police officers in the field, rather than requiring days of processing by technicians in specialized laboratories.

The benefit of Rapid DNA for law enforcement is that an officer can run a test while an “arrestee” is in temporary custody. If there is a database match, then the law enforcement agency can move to place the suspect in immediate custody.

In a 2013 decision, the U.S. Supreme Court ruled that when police officers make an arrest for a serious offense, supported by probable cause, the capture and analysis of a cheek swab of an arrestee’s DNA is akin to capturing fingerprints or taking photographs. It therefore constitutes a legitimate and reasonable police booking procedure according to the high court. Due to confirmed judicial support for the practice, the FBI has moved to investigate how its can facilitate the integration of Rapid DNA analysis into the FBI’s Combined DNA Index (CODIS) database and NGI systems.

NGI, which debuted recently, aims to expand the federal government’s identification databases beyond its 110 million fingerprint records. As reported previously, NGI is designed to advance the Bureau’s biometrics identification services, providing an incremental replacement of its current integrated automated fingerprint identification system with a multi-modal biometric database, which includes voice, iris and facial recognition.

The Next Generation Identification program is therefore designed to advance the integration strategies and indexing of additional biometric data that will provide the framework for a future multi-modal system that will facilitate biometric fusion identification techniques. Part of the FBI’s vision will be to extend DNA into the criminal booking environment. As a consequence, the agency will hold a presentation with potential vendors in November that will elaborate its goals and objectives concerning the addition of Rapid DNA capacity to the database.

In statements to Nextgov, FBI spokeswoman Ann Todd said that Rapid DNA “will simply expedite the analysis and submission of lawfully obtained samples to the state and national DNA databases.”

She noted “the FBI will continue to apply cutting-edge technology to combat crime and protect the United States,” but “at the same time, the FBI [will remain] vigilant in upholding the Constitution, the rule of law and protecting privacy rights and civil liberties.”

Though the FBI and Justice Department have constitutional clarity surrounding the use and addition of rapid DNA during the booking procedure, the FBI will still require legislation from Congress to permit Rapid DNA results to added to the FBI’s databases. Current legislation states that CODIS database entries must be processed by an accredited laboratory.

Law enforcement agencies such as the FBI and the Justice Department can also expect heavy criticism from civil liberty groups. Jennifer Lynch, a senior staff attorney at the Electronic Frontier Foundation (EFF), told Nextgov that: “If the cops are stopping more African Americans or Latinos and they have the ability to collect their DNA just at a stop, then it means that the DNA database is going to be even more heavily weighted with DNA from immigrant communities and different ethnic minorities.” The EFF also is critical of the fact that DNA might be able to be tested without a warrant or without a person’s permission.

Rawlson King , Biometric Update

Canadian life and health insurers limit use of genetic test results

Canadian life and health insurers are adopting new policies on the use of genetic test results that will guide how this type of information should be used when underwriting policies. The guidelines would also restrict the type of information companies can collect.

The action by the Canadian Life and Health Insurance Association Inc.(CLHIA) demonstrates the industry’s pledge not to seek genetic testing results from research where the information wasn’t disclosed. Insurers also won’t ask for genetic test results of any other person than the policy applicant. Companies must now have a plan to address complaints related to underwriting decisions.

This adds to the long-standing voluntary ban on insurers asking applicants and policy holders to undergo genetic testing.

The CLHIA, which counts the majority of the industry as members, is clarifying its position on genetic testing less than three months after the Office of the Privacy Commissioner of Canada called on the insurers to stop asking clients for access to genetic data altogether until insurers can show the information is necessary and effective for actuarial purposes. Genetic testing has become a hot-button topic as improvements in science and technology make the process faster, more affordable and easier to access. Canadians are increasingly getting genetic testing done to determine their ancestry, for reproduction planning and to find out their genetic predisposition to diseases such as cancer.

The CLHIA says insurers should have access to medical information to accurately assess the risk profile of potential clients. The group points to research by the Canadian Institute of Actuaries that found there would be a “substantial” impact on companies if they were denied access to genetic test data.

But the intention is not to turn clients away. The insurance group said any applicant denied life or health insurance will get help looking for other coverage – either by insurers or through advisers.

Since existing life insurance policies can’t be changed by subsequent genetic testing, the CLHIA suggests consumers “consider applying and obtaining insurance before undergoing genetic testing.” This maintains the “good faith” agreement, where both parties enter into the insurance agreement with equal knowledge.

“Insurers have one opportunity to assess whether to provide insurance. Those policies can last 40 or 50 years,” said Frank Zinatelli, general counsel of the CLHIA. “If it turns out [later] that you have some genetic condition that can affect you in a negative way, we’ve already made the promise.”

Jacqueline Nelson , Globe and Mail

FBI Plans Rapid DNA Dragnets

The FBI is preparing to accelerate the collection of DNA profiles for the government’s massive new biometric identification database.

Developers of portable DNA analysis machines have been invited to a Nov. 13 presentation to learn about the bureau’s vision for incorporating their technology into the FBI’s new database.

So-called rapid DNA systems can draw up a profile in about 90 minutes.

The Next Generation Identification system, or NGI, the successor to the FBI’s criminal fingerprint database, is designed to quickly ID crooks through facial recognition, iris matching, tattoo cross-checks and vocal recordings, among other unique traits.

But critics say aggregating DNA along with all this other data makes it easier for authorities to track the general population.

Various FBI divisions “are collaborating to develop and implement foundational efforts to streamline and automate law enforcement’s DNA collection processes” including at arrest, booking and conviction, according to an Aug. 19 notice about the industry briefing. The ongoing groundwork is expected to facilitate the “integration of Rapid DNA Analysis into the FBI’s Combined DNA Index (CODIS) and Next Generation Identification (NGI) systems from the booking environment.”

CODIS is the government’s central DNA database.

Rapid DNA Has Already Helped Cops Clinch Case

Rapid DNA analysis can be performed by cops in less than two hours, rather than by technicians at a scientific lab over several days. The benefit for law enforcement is that an officer can run a cheek swab on the spot or while an arrestee is in temporary custody. If there is a database match, they can then move to lock up the suspect immediately.

The Arizona Department of Public Safety uses $270,000 Rapid DNA machines developed by IntegenX and Morpho to develop investigative leads. Slides from a presentation reviewed by Nextgov indicate one potential application for the technology might include “Upload of Arrestee and Convicted Offender profiles at intake to a database (CODIS or other database).”

Rapid DNA analysis this summer helped clinch a case in South Carolina.

The Richland County Sheriff’s Department identified and tracked down a suspect in an attempted murder by using a machine to process genetic material from the suspect’s discarded clothing, authorities announced.

According to police, Brandon Berry brandished a gun and demanded money from a man on the sidewalk in the early morning hours of July 29. Police said Berry then wrestled the man, shot him in the lower body and fled. After Berry was apprehended around 11 a.m. that same morning, police said scans of Berry’s clothing contained both his and the victim’s DNA.

Booking Saliva Is Legal

The Supreme Court ruled last year that analyzing DNA from saliva, for example, is a legal part of booking a suspect, just like fingerprinting.

But Congress would have to intervene for rapid DNA results to be entered into the FBI’s databases.

Current law states DNA in CODIS must be processed at an accredited laboratory. A legislative tweak is needed to allow DNA processed by a portable machine to be entered into the FBI’s systems, bureau officials acknowledge.

But some privacy advocates warn it’s not a huge leap to go from using rapid DNA at the police station to using it out in the field on anyone’s discarded DNA.

Civil liberties groups were not invited to the November briefing, but the initiative has been discussed at various public conferences.

“The FBI invitation to vendors is essentially the same presentation with a focus on the technical specifications needed from the developers,” FBI spokeswoman Ann Todd said in an email.

Privacy Groups Worried About Police Stop-and-Swabs

Right now, congressional inaction and cost are the only difficulties standing in the way of pervasive use, said Jennifer Lynch, senior staff attorney for the Electronic Frontier Foundation.

“If you leave something behind, let’s say your trash on the sidewalk out in front of your house, then you’ve abandoned any kind of privacy interest in the trash,” she explained. “And so the cops can search through that trash without a warrant. That reasoning has been extended to DNA — if you leave your DNA behind, then the cops could get it without a warrant and test it.”

“If you consider DNA to be a form of ID, and the Supreme Court has already upheld state laws that allow officers to stop someone and ask for their ID, then this is the logical next step,” she added.

The civil liberties of minority groups, in particular, could be threatened by stop-and-swabs.

“If the cops are stopping more African Americans or Latinos and they have the ability to collect their DNA just at a stop, then it means that the DNA database is going to be even more heavily weighted with DNA from immigrant communities and different ethnic minorities,” Lynch said.

FBI officials say their program does not impact any laws currently governing the operation of CODIS. Rapid DNA techniques in booking stations, “will simply expedite the analysis and submission of lawfully obtained samples to the state and national DNA databases,” Todd, the FBI spokeswoman, said.

“The FBI will continue to apply cutting-edge technology to combat crime and protect the United States,” she added. “At the same time, the FBI remains vigilant in upholding the Constitution, the rule of law and protecting privacy rights and civil liberties.”

Not Ready to Roll Out Yet

In March, California Democratic Reps. Eric Swalwell, Mike Honda and Barbara Lee wrote a letter requesting the FBI test rapid DNA analysis at booking stations to “assess its viability for broad deployment.” They argued the shift would help ID or clear suspects quickly and free up lab resources to reduce a multiyear rape kit backlog.

FBI officials say there are multiple matters, including changing the accredited lab statute, that must be dealt with before rolling out rapid DNA matching. The machines would have to be certified, for instance, and police would have to be trained to handle the tools.

“Given the number of important issues that need to be addressed, coupled with the need for legislative changes, it is difficult to estimate when law enforcement agencies will be able to search DNA profiles developed by a rapid DNA instrument,” Todd said.

In the meantime, the potential cataloging of hordes of DNA samples in a central government database is compounding concerns about domestic espionage.

“Your DNA data could be linked to all the other biometric and biographic information about you that is already in NGI,” Lynch said. “Because we discard DNA wherever we go, this allows the government the ability to further surveil people without their knowledge.”

Aliya Sternstein , Nextgov