New technology provides opportunities for greatly enhanced safety in the workplace, and employers are taking advantage of this to the benefit of workers. Unfortunately, some employers are misusing new technology in efforts to undermine their employees as well.
In March 2000, the Burlington Northern and Santa Fe Railroad (BNSF) began secret DNA testing on employees who filed worker’s compensation claims for carpal tunnel syndrome. The program was stopped before BNSF had the opportunity to use the information gathered in the genetic testing, but those opposed to the program believe that this testing was intended to be used to deny claims. BNSF says they were, “trying to determine whether the injuries were work-related so that we could fix it.” However, they refused to reveal what action they would have taken based on the results.
A medical examination to determine the extent and cause of injury is a normal part of the worker’s compensation claims process. In addition to the routine medical examination, BNSF requested that the 125 employees seeking compensation for carpal tunnel syndrome submit to a blood test to screen for Chromosome 17 deletion. Studies have shown a link between Chromosome 17 deletion and the potential for developing certain types of carpal tunnel syndrome. Twenty workers submitted to the blood test.
Genetic testing can only determine a predisposition, or a potential, for developing any certain condition. It cannot predict who will actually develop the problem. “Environmental factors can contribute to disease whether someone has a genetic predisposition or not,” said Dr. Paul Billings, co-founder of GeneSage and Co., a San Francisco-based genetic information company and advisor to lawyers representing the railroad workers.
The Equal Employment Opportunity Commission (EEOC) initiated a lawsuit in protest of the program, and on April 6, 2001 a settlement was reached in which BNSF agreed to stop the testing, destroy all blood samples and related to the testing, refrain from disciplining any employee who refused to comply with the testing, and compensate the affected employees.
It has been suggested that genetic testing could be used not only to fight worker’s compensation claims, but also for employment screening. In other words, potential employees could face discrimination due to a genetic pre-disposition to a condition that the employer finds undesirable whether they ever develop the condition or not. Since current physical examinations can determine if a condition is present, and genetic pre-disposition does not mean that a person will actually develop any condition, genetic testing would be meaningless in determining whether or not a person can safely and effectively perform job duties.
Genetic predisposition is just one of many factors which can lead to injury, and environmental factors play a larger role for both those who are genetically pre-disposed for a condition and those who are not. It is not a reasonable way to determine if an injury was caused on the job. For instance, a person may have a family history of back injuries, with an underlying genetic link, but never develop a back injury unless they participate in improper lifting practices. At the same time a person who has no genetic pre-disposition to back injuries will still injury his or her back when lifting heavy objects in an unsafe manner. If an employer requires a worker to lift an object in an unsafe manner and that results in a back injury it would be unreasonable to argue that genetics, rather than the manner of lifting, caused the injury.
Currently the Genetic Information Nondiscrimination Act is being considered in congress. This bill prohibits discrimination on the basis of genetic information with respect to health insurance and employment. It is unknown at this time how the final version, if passed, will affect worker’s compensation.
If you have questions about how workers compensation affects you in your particular employment situation or if you have a workers’ compensation claim, please contact an experienced workers compensation attorney today, such as The Stipe Law Firm of Oklahoma City, Oklahoma.