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
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.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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