Back before I got a real job writing about dignified things, I spent years working as a temp in human resources across several industries. It taught me the ins and outs of why people get hired and fired. So when I tell you that the House bill currently facing public scrutiny allowing genetic testing of employees is a terrible idea, I’m not just saying it because it reads like a bad movie synopsis. This is the last thing a good HR department wants to do.
To start with, it’s probably not legal. Leaving aside the patchwork of state laws, our genetic records are covered by the Health Insurance Portability and Accountability Act of 1996, or HIPAA, which is extremely strict about who gets to look at your records and why. The House law claims that HIPAA, and the associated Genetic Information Nondiscrimination Act, or GINA, (not to mention the Americans with Disabilities Act) doesn’t apply to workplace wellness programs, which is where the genetic testing would be allowed, but the government is clear that genetic information is health information, and that all relevant laws apply.
Any company wants to stay well clear of HIPAA in particular. Even something seemingly as innocuous as issuing a claim in bankruptcy court or leaving a laptop lying around can spiral out into an expensive legal battle that costs thousands or even millions of dollars. As far as the government is concerned, voluntary testing or not, genetic information is health information, and that means any company testing their employees is inviting HIPAA into their office.
Keep in mind, HR departments already have privacy nightmares to worry about. As a temp running background checks and doing the filing, I was privy to a lot of sensitive information about people, and not just the usual identity theft type stuff like Social Security numbers. Visa statuses, divorce filings, wage garnishments; your HR department knows a lot about you. Adding genetic records into the mix creates all sorts of headaches, HIPAA or not.
But even if the courts do rule it’s legal, no company in their right mind would do this, just for the sake of their hiring policies. Take background checks, a huge part of my job as a temp. The first thing I was taught was you might get sued for negilgent hiring by a customer or a worker, but if you don’t hire somebody based on their background check, you might get sued by the person you turned down. That was just the start; there are a lot of places where an applicant can sue a business over their hiring procedure. And there are laws about where and when you can fire somebody, as well, which are equally easy to fall afoul of.
Keep in mind, too, that civil lawsuits have no obligation to meet the standard of a reasonable doubt. All you really have to do is prove that it’s likely what you’re claiming is true. And that leads us to the biggest can of worms: The ethical responsibility to disclose.
To understand why this is a problem, you should read this Vox article by a genetic scientist who thought it’d be cute to have his parents test their genomes. Then he discovered he had a half-brother he, and his mom, didn’t know about, destroying his parents’ marriage. Now imagine an employer learns that one of its employees has a sibling they never knew, or a potential chronic illness that hasn’t asserted itself yet, or a predisposition to pass on a genetic malady to their children, and doesn’t inform the employee.
Genetic testing is generally not something we should do frivolously. But in the workplace, it’s a landmine waiting to go off. That’s something politicians should stop and consider, before drafting laws like this.