When dealing with requests for accommodation, employee absenteeism and other medical circumstances, employers are routinely faced with the challenge of balancing employee privacy interests against the operational interests of the business when determining how much medical information and what kind of medical information employers can request. The analysis typically centres on the issue of what is reasonable in the circumstances, with diagnostic information being considered to be a clear delineation point as to what employers may request and not request. At the Canadian Senate in January, the question of the protection personal health information took on a new angle, centering around an individual’s right to privacy in respect of their personal genetic information.
In recent years, the concept of “genetic discrimination” has emerged in the US, primarily centering around requests by insurers for genetic information in order to conduct insurance assessments and costings, but also involving the question as to whether employers may use genetic information as a basis on which to determine whether to offer and/or continue employment. The Canadian Coalition for Genetic Fairness (www.ccgf-cceg.ca) defines genetic discrimination as occurring “when people are treated unfairly because of actual or perceived differences in their genetic information that may cause or increase the risk to develop a disorder or disease”. In an effort to address these concerns, on May 21, 2008, President Bush signed into law the Genetic Information Nondiscrimination Act which serves to protect Americans against discrimination based on their genetic information when it comes to health insurance and employment.
In Canada, issues of discrimination and the protection of personal health information are currently addressed through provincial and federal human rights and privacy legislation, with additional protections coming through decisions of our various courts and tribunals. In 2013, the Canadian Senate began the process of codifying the protection of genetic information and the prohibition of genetic discrimination through the introduction of Bill S-218, which stalled following the prorogation of Parliament. This bill was subsequently reintroduced in 2015 by Senator James Cowan as Bill S-201: An Act to prohibit and prevent genetic discrimination. Bill S-201 was referred to the Senate’s Human Rights Committee following Second Reading on January 27, 2016, and seeks to prohibit the requirement of genetic testing and the disclosure of genetic testing results as a condition of (a) the provision of goods or services, (b) the entering into or continuance of a contract or agreement, and (c) the offering or continuance of specific terms or conditions in a contract or agreement. Exceptions to these restrictions would only apply to physicians, pharmacists or other health care practitioners who are providing health services, or to persons conducting medical, pharmaceutical or scientific research. The proposed penalties for contravention include monetary fines as well as imprisonment. In addition to the general prohibitions, Bill S-201 seeks to amend the Canada Labour Code, the Canadian Human Rights Act, the Privacy Act and PIPEDA to address and prohibit genetic discrimination, making it particularly relevant for federally regulated employers.
While this may appear to be a significant development, it is important for employers to remember that discrimination in the course of employment on the basis of disability is already prohibited in all Canadian jurisdictions. Further, it is difficult to imagine many, if any, circumstances where the disclosure of an individual’s genetic information, including their predisposition to certain genetic conditions, would be considered by a Canadian human rights tribunal, whether provincial or federal, to be a bona fide occupational requirement. As such, there is a strong argument that the current human rights and privacy regimes already offer protection against genetic discrimination in the context of employment.
We will continue to monitor the progress of Bill S-201 and will provide updates as developments arise.
By Kate McNeill-Keller, McCarthy Tétrault