The Wall Street Journal reports that several companies are using genetic testing to help employees lose weight or learn about certain cancer markers. Sounds awesome, right? Wouldn't you like to be prepared and take precautions if you knew that you were genetically predisposed to breast cancer? Or if you knew that you were likely develop Type II Diabetes, it might inspire you to exercise more and eat less. If you're predisposed to colon cancer, you might just schedule that colonoscopy sooner rather than later.
All of this can not only save your life, but it can save your health insurance company a fortune. And who, ultimately, is paying your health insurance? Your employer. Employers see this as a way to save costs in the long run.
Personally, I'm all in favor of genetic testing, but not when the company is involved. While these companies swear on a stack of metaphorical bibles that they will never access this information, it puts the company at risk. How?
Let's say Jane decides to participate in her company's free genetic testing program. Because, hey, free testing! Her test comes back and shows that she's a genetic disaster. She has markers for Type II Diabetes, breast cancer, and colon cancer. She's a time bomb waiting to happen. Poor Jane.
Even poorer Jane, the company decides to take a different path and Jane's position is eliminated six weeks after she gets the information about her genetics. True to the company's promise, they knew nothing about her results, and these results had absolutely no influence on their decision. So, the termination is clean and not in violation of GINA.
What's GINA? That stands for the Genetic Information Nondiscrimination Act, which " prohibits the use of genetic information in making employment decisions in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment."
So, no such information was considered in Jane's layoff, so you're good. Except that, Jane was pretty upset when she got her results, and she told her co-worker, Steve. Steve casually mentioned it at lunch to his buddy, Frank, in the neighboring department. This buddy in the neighboring department was on the committee that determined which positions should be eliminated, and he recommended Jane.
Now, did her genetic information cause Frank to bring up her name? Of course not, you say. It was all about positions. Except, you're stuck with the very uncomfortable fact that the person who suggested Jane's name knew about her genetic information. Genetic information that the company had encouraged Jane to find out and had paid for.
While this isn't necessarily enough to lose a lawsuit, it's definitely enough to make you face down Jane's high priced attorney, and if the EEOC decides to make you the poster child for why we don't delve into employees' DNA, you're toast. If Jane gets her story picked up by the media, you've got a whole bunch of bad publicity.
In other words, my non-legal advice (as I'm not a lawyer), is that there are too many risks to the company involved in such a program. We're so focused on weight loss these days that we forget our main purpose as an employer is not to follow our employees around smacking candy out of their hands. Remember, while Jane's potential cancer might be very expensive, it's also very unlikely that she'll still be employed by you five years down the road. You set yourself up for legal troubles and won't even see the savings from early detection.
Stay far, far away from this type of program.