Competing interests

Employers’ interests

29.38 There are a number of reasons employers seek to collect and use medical information about employees. Employers have a legitimate interest in ensuring that an applicant or employee is able to perform the inherent requirements of the job. This includes the ability to work safely. For some positions the inherent requirements of the job will include a certain level of fitness, for example, positions in the defence forces.

29.39 Employers also have an interest in ensuring a productive workforce and in limiting unnecessary overheads. An employee with a susceptibility to a genetic disorder—whether workplace related or otherwise—has the potential to give rise to productivity losses and costs associated with sick leave, employing and training temporary or permanent replacements, potentially higher workers’ compensation premiums, and potential legal liability for injuries to employees or the public.[30]

29.40 It has been suggested that employers may come under pressure from insurers to conduct genetic testing on their workforce. In consultations, Comcare indicated that workers’ compensation premiums are calculated, under its scheme, on the basis of an agency’s claims history over the last four years, ranging from 0.5% to 3.6% of payroll.[31] Employers may be prompted to use genetic information to reduce the number of employee claims and so keep premiums low.

29.41 Employers may also seek to collect and use medical information to comply with their duties under occupational health and safety legislation, namely, to protect the health and safety of their employees and third parties.[32]

29.42 Health screening and surveillance also involve cost, however, and these costs must be weighed against any potential benefits. Costs involved in using genetic tests for screening or monitoring are currently relatively high and the predictive value of many tests is low. As a result genetic testing is not widely used in Australian workplaces at present.

29.43 One issue that arises in this context is whether genetic information should be used to ‘inform’ employees of risks, or to ‘protect’ them from risks in the workplace.[33] If a susceptible employee chooses to accept an identified occupational health risk, should the employer be liable if the employee subsequently develops the condition about which he or she was warned? According to Roger Jansson and others:

Genetic testing may result in a Catch-22 for employers: greater liability for known harms of exposure to susceptible workers, but claims by workers of discrimination if employers try to protect them from exposures.[34]

29.44 On the other hand, if employers are allowed to shift the responsibility for workplace hazards to employees, this might increase the incentive for employers to exclude susceptible employees from the workforce, rather than minimise environmental risks for all employees.[35] Occupational health and safety issues are discussed in Chapter 32.

Employees’ interests

29.45 The collection and use of genetic information by employers raises a number of issues for job applicants and employees, including privacy and discrimination concerns.

29.46 While the collection of genetic information for medical or research purposes is generally based on informed decision making by the person supplying the sample, a number of commentators have indicated that there are difficulties with applying this principle in the employment context. The voluntariness of consent given by a job applicant or employee may be undermined by the unequal bargaining power in the workplace.[36] In addition, employment testing has the potential to compromise an individual’s ‘right not to know’ whether he or she has a genetic susceptibility or predisposition.

29.47 In these circumstances, it is particularly important that genetic information is collected from job applicants and employees and stored, used and disclosed in appropriate ways. Contractual and equitable principles offer some privacy protection,[37] as does the Privacy Act 1988 (Cth). However, serious concerns have been raised in relation to the exemption from the National Privacy Principles for personal information contained in ‘employee records’.[38] This issue is discussed further in Chapter 34.

29.48 Given the sensitive nature of genetic information, employees also have an interest in ensuring that requests for genetic information are limited to those situations in which the information is necessary for a legitimate purpose. It is also important that appropriate procedures are put in place for the collection and use of genetic information in the employment context including, for example, the involvement of appropriate medical professionals and counsellors. These issues are discussed further in Chapter 31.

29.49 A further concern of employees is whether employers have sufficient expertise to interpret genetic information appropriately, given its complexity and variable predictive value. A related concern is that employers may rely on genetic information to discriminate unfairly against job applicants and employees. For example, employers might seek to exclude ‘high risk’ individuals from the workplace on the basis of their susceptibility to workplace related conditions, or because of risks unrelated to workplace exposure. On the other hand, genetic information has the potential to benefit applicants and employees who may be able to use this information to make career choices to avoid exposure to hazardous substances.

29.50 Job applicants or employees may also be concerned about discrimination by third parties, such as other employers or insurers, if the genetic information is disclosed to them. This raises both privacy and discrimination issues, which are discussed further in the following chapters.

The public interest

29.51 Employers, job applicants and employees have an interest in the appropriate regulation and use of genetic information in the employment context. The community also has an interest in reducing the incidence of occupational injury and disease and the resulting burden on the health care, workers’ compensation and social welfare systems.[39] Appropriate use of genetic information in employment may contribute to these outcomes, although there is a danger that use of genetic information to screen or monitor employees may shift the focus of employers’ efforts from minimising exposure to harmful agents in the workplace to the exclusion of high risk individuals from the workplace.[40] As noted above, the community also has an interest in ensuring that individuals are not unfairly excluded from work and from contributing to the community financially and in other ways through their participation in the workforce.

29.52 As discussed in Chapter 26 in relation to insurance, the use of genetic information by third parties such as insurers and employers also has the potential to deter individuals from taking genetic tests. This may impact both on individual health outcomes and on public health outcomes where individuals are deterred from participating in population screening programs or medical research.

29.53 It has also been suggested that there is a public interest in the protection of individual privacy: while privacy is usually defined in individual terms, the cumulative effect of the invasion of individual privacy has an impact on society as a whole.[41]

29.54 In the remaining chapters in Part H of this Report, the Inquiry examines these issues and considers whether the existing regulatory framework draws an appropriate balance between the various interests of employers, employees and the community as a whole. Chapters 30 and 31 examine the anti-discrimination framework. Chapter 32 focuses on the occupational health and safety framework. Chapter 33 considers issues associated with workers’ compensation and Chapter 34 considers issues associated with the protection of genetic privacy in employment.

[30] M Otlowski, Implications of Genetic Testing for Australian Employment Law and Practice (2001) Centre for Law and Genetics, Hobart, 9–10.

[31] Comcare, Consultation, Canberra, 7 November 2002.

[32] See Ch 32 for more detail.

[33] R Jansson and others, Genetic Testing in the Workplace: Implications for Public Policy (2000), Institute for Public Health Genetics, Health Policy Analysis Program, Department of Health Services, School of Law, Department of Economics, University of Washington, Seattle, 37. This tension is also evident in the debate about the exclusion of pregnant women from positions involving exposure to lead substances.

[34] Ibid, 36.

[35] Ibid, 38.

[36] For example, see E Draper, ‘The Screening of America: The Social and Legal Framework of Employers’ Use of Genetic Information’ (1999) 20 Berkeley Journal of Employment & Labour Law 286, 294; M Otlowski, Implications of Genetic Testing for Australian Employment Law and Practice (2001) Centre for Law and Genetics, Hobart, 12–13, 39–40.

[37] M Otlowski, Implications of Genetic Testing for Australian Employment Law and Practice (2001) Centre for Law and Genetics, Hobart, 76–77.

[38]Privacy Act 1988 (Cth) s 7B(3).

[39] Nuffield Council on Bioethics, Genetic Screening Ethical Issues (1993), Nuffield Council on Bioethics, London [6.8].

[40] M Otlowski, Implications of Genetic Testing for Australian Employment Law and Practice (2001) Centre for Law and Genetics, Hobart, 45.

[41] Ibid.