Category Archives: genetic discrmination

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

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