Canadian HR Reporter

April 3, 2017

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

Issue link: https://digital.hrreporter.com/i/802101

Contents of this Issue

Navigation

Page 7 of 19

CANADIAN HR REPORTER April 3, 2017 8 NEWS both the Canada Labour Code and the Canadian Human Rights Act in prohibiting any person "from requiring an individual to undergo a genetic test or disclose the results of a genetic test as a condition of providing goods or services to, entering into or con- tinuing a contract or agreement with, or offering specific condi- tions in a contract or agreement with, the individual," with excep- tions for health-care practitioners and researchers. While current human rights, occupational health and safety, labour and employment laws do provide strong protection against discrimination on the basis of ge- netic testing, the desire to make the protection explicit is under- standable, said Karen Jensen, a partner at Norton Rose Fulbright Canada in Ottawa. "As genetic testing becomes more sophisticated, accurate and prevalent, the need to address concerns about the use that can be made of this information is legitimate." Insurance industry concerns But the life and health insurance industry is extremely disappointed with the development, said Wendy Hope, vice-president of external relations at the Canadian Life and Health Insurance Association (CL- HIA) in Ottawa, in a statement. "e industry agrees with the federal government's position — as expressed by the Prime Minis- ter and the Minister of Justice, as well as a number of provinces — that an important element of the bill is unconstitutional." e insurance industry also has a longstanding code related to ge- netic testing that ensures no one will be required to undergo a ge- netic test as a condition for insur- ance coverage, she said. e group also said recently it would not ask for genetic testing information for life insurance applications below $250,000. e CLHIA also cited unin- tended consequences to the leg- islation, such as the affordability of insurance. is sentiment has been echoed by the Canadian In- stitute of Actuaries. In a 2016 re- port, it said prohibiting life insur- ance companies from accessing the results of genetic tests for the purpose of underwriting a poten- tial insured would "create an im- balance of information" and aver- age critical illness insurance (CI) claim rates would likely increase by about 26 per cent overall, or 16 per cent for males and 41 per cent for females ages 30 to 65. "ere would be a concomitant increase in CI premium rates," it said. e baseline assumption in the model was that 75 per cent of peo- ple who tested positive would ap- ply for $250,000 of insurance, and the rest would not seek additional insurance. "e greater the publicity sur- rounding the prohibition, the higher will be the proportion buy- ing CI," said the CIA. In 2014, the institute also said term life insurance premium rates could go up by 30 per cent for males and 50 per cent for females. "The CIA does not support mandatory genetic testing," said Jacques Tremblay, president of the CIA. "at said, we do believe that if relevant test results are avail- able, they must be shared with the insurer in order to preserve the integrity and proper functioning of the insurance mechanism and, ultimately, to protect consumers against costly anti-selection." However, also in 2014, the Of- fice of the Privacy Commissioner of Canada commissioned two papers by experts in actuarial sci- ence and economics, and they agreed "the impact of a ban on the use of genetic test results by the life and health insurance industry would not have a significant im- pact on insurers or the efficient operation of insurance markets… erefore, collection and use of existing genetic test results by insurance companies would not appear to be necessary for the legitimate business needs of the industry at the present time." Other research out of the Unit- ed Kingdom has found similar results, said Bev Heim-Myers, CEO of the Huntington Society of Canada in Kitchener, Ont. "When the insurance industry said everybody is going to run out and top up their life insurance policies to exorbitant amounts because they have access to that information… people didn't. It's not a good investment because (the testing) is predictive and... it could or could not be (right)." For years, the insurance in- dustry has had access to a lot of information, such as modifiable risk factors and family history, she said. "ey are desperate to hold on to this information, yet in other jurisdictions that have respected the rights of their own constitu- ents and rights of individuals, and have not held onto this in- formation, their communities are healthier, insurance premiums have gone down and people have been able to make informed deci- sions about their health moving forward." Human rights issues A lot of the genetic carriers are linked to specific communities of people, said Jillian Friedman, a law- yer at Friedman Law in Montreal. "For example, in the Ashkenazi Jewish community, there's a much higher likelihood to carry genetic predispositions to different dis- eases or conditions, and that ap- plies to other populations as well," she said. "To think you might be prevented from (getting) insur- ance because you have that genetic marker… that just adds a whole other dimension, ethically too." Just because a person has a genetic trait or mutation doesn't mean she's going to get the dis- ease, said Peter Engelmann, a partner at Goldblatt Partners in Ottawa. "With some, it's almost a cer- tainty, but with most diseases, it's only a possibility, so it's an increased risk, and that's one of the reasons why you don't want to be stereotyped — just because there's a higher chance of you con- tracting something doesn't mean you're going to." When it comes to human rights concerns, it's also about employ- ers using the information to avoid hiring individuals they believe are likely to have a high risk of absen- teeism, take a stress or sick leave, resign or retire early for health reasons, file workers' compensa- tion claims, require workplace accommodation or excessively use health-care benefits, said En- gelmann when he spoke in 2014 before the Standing Senate Com- mittee on Human Rights looking at Bill S-201. Employees may also be denied promotions because of their re- sults or be pressured to retire early, he said. "People should not have to choose between undergoing di- agnostic or prospective genetic testing and potentially facing re- percussions in the workplace that lead them to having to prosecute a complaint or grievance." But there are already labour laws when it comes to discrimi- nation around a handicap, said Friedman. "You already can't discriminate against somebody for having a handicap, so I don't know that I would tuck genetic discrimina- tion under the category of handi- cap, but it doesn't really matter — I would just make it clear that this is not a factor on which a de- cision could be made about an employee." A genetic characteristic may be considered a disability, said Jensen. "A disability is a condition that inhibits or restricts a person's ability to participate in the work- place. A condition may be latent or asymptomatic and the person only becomes aware of it upon receiving the results of genetic testing. is would not constitute a disability that would trigger an employer's duty to accommodate," she said. "However, if an employer were to become aware of that person's genetic (but unmanifested) char- acteristic and treated that person in a negative, differential manner based on the genetic character- istic, this would be considered discrimination on the basis of 'perceived disability.' Discrimina- tion on the basis of a perceived disability is illegal in all jurisdic- tions in Canada." ere's also a lot of protection against genetic discrimination in labour laws and federal and pro- vincial charters, said Friedman. "e general principle is an em- ployer isn't allowed to ask a pro- spective employee any personal information that isn't absolutely necessary for the job that they're being hired for. So it's difficult to imagine situations where some- body's genetic predisposition to breast cancer, for example, would have anything to do with the tasks they're going to be performing. So that's something that was already in the law, although this would just serve to reinforce that ge- netic information is definitely not something you could ask about," she said. "I see (this legislation) more as clarifying and reinforcing protec- tions that were already in the law, so it's not a huge leap from where we were before." Some may say the new law isn't needed because individuals can simply file a human rights com- plaint and claim discrimination on the basis of a perceived dis- ability, or because there are exist- ing privacy laws and requirements to keep health-care records con- fidential. But there are problems with that, said Engelmann. "First of all, with privacy com- plaints, really there's no hammer. e privacy commissioner finds a breach, and they make recom- mendations. And (secondly), on the human rights side… you have to prosecute these things on your own so if you're filing a complaint with the federal human rights commission as an individ- ual complainant, the commission will investigate the complaint but they don't provide you with a lawyer anymore; the commission only gets involved if it's a systemic complaint." Jensen — who also appeared before the standing committee in 2014 on behalf of the Canadian Association of Counsel to Em- ployers — said her personal view on the issue has changed. "Public discussions about this issue, plus my experience with a close friend who has had genetic testing done, have helped me to appreciate just how vulnerable people who want or need to en- gage in genetic testing feel, once they have the results. Lawyers can reassure employees all they like that our human rights protections in Canada are robust enough to protect employees from any mis- guided employer who thinks they can discriminate against them on the basis of genetic test results, but that does not address the deep insecurity that an employee may feel who doesn't see the words 'no discrimination on the basis of genetic testing' anywhere in our human rights laws." Discrimination a possibility GENETICS < pg. 1 "I see it as clarifying and reinforcing protections that were already in the law." Credit: Jim Young (Reuters) Molecular genetics technical specialist Jaime Wendt (right) and Mike Tschannen work in the Human and Molecular Genetics Center Sequencing Core at the Medical College of Wisconsin in Milwaukee in 2014.

Articles in this issue

Links on this page

Archives of this issue

view archives of Canadian HR Reporter - April 3, 2017