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(c) 2016 Jon L Gelman, All Rights Reserved.

Thursday, August 16, 2012

Should Genetic Medical Information Be Given to Workers’ Compensation Insurance Companies?

Federal law provides that employers with 15 or more employees
 cannot discriminate against employees because of genetic information.
Guest Blog by Leonard T. Jernigan, Jr. of the North Carolina Bar 

Under a 2009 Federal law called GINA (the Genetic Information Nondiscrimination Act), employers with 15 or more employees cannot discriminate against employees because of genetic information. That information may include a past or present medical history (for example: breast cancer, diabetes, depression, or colon cancer) of family members. GINA prohibits disclosure of this sensitive information by employers and prohibits the employer from even making a request for such information. If they have this information, it must be kept in a file that is separate from the regular personnel file.

The EEOC (Equal Employment Opportunity Commission) has made regulations, effective January 10, 2011, to enforce this federal statute and allows an action for damages, including punitive damages, reinstatement and back pay, and reasonable attorney’s fees.

In the workers’ compensation setting, this information is sometimes gathered by medical experts conducting independent medical exams, by nurse case managers who may seek to find out any and all medical information about the injured worker’s family as well as the injured worker, or by family physicians who have made non-work-related entries in the medical records. However, GINA has allowed an exception to the overall thrust of the legislation by stating that if the information is relevant to the workers’ compensation claim, it can be disclosed. The legislation gives no definition of the term “relevant” and makes the interaction between the health care provider, the carrier, the employer and the employee complicated, to say the least. Lawyers who represent employees and employers should be aware of GINA and protect sensitive genetic information from disclosure, and claimants should make sure their physician is aware of it as well.

Other posts to read
Aug 29, 2011
"Because only a small fraction of asbestos-exposed individuals develop malignant mesothelioma1, and because mesothelioma clustering is observed in some families, we searched for genetic predisposing factors.
May 12, 2010
A lawsuit was filed under the recently enacted Genetic Information Discrimination Act of 2008 (GINA) on behalf of a woman who underwent a prophylactic double mastectomy after testing positive for breast cancer. GINA took ...
Dec 15, 2009
Genetic predisposition to occupational illness and disease presents a complex issue in workers' compensation claims and health technology assessment. New methods now permit the identification of individuals who have ...
Jun 13, 2012
... that a truck driver may suffer cardiovascular disability as a result of exposure to carbon monoxide even though the employee had other pre-disposing risk factors including smoking, obesity, and a genetic predisposition.