Part H. Employment

30. Genetic Discrimination in Employment

30–1 Employers should not collect or use genetic information in relation to job applicants or employees, except in the limited circumstances where this is consistent with privacy, anti-discrimination, and occupational health and safety legislation, as amended in accordance with the Recommendations in this Report. (See Chapters 31 to 34.)

31. Inherent Requirements of the Job

31–1 The Commonwealth should amend the Disability Discrimination Act 1992 (Cth) (DDA), the Human Rights and Equal Opportunities Commission Act 1984 (Cth) and the Workplace Relations Act 1996 (Cth) to provide that, except where it is reasonable to do so, the assessment of an applicant or employee’s ability to perform the inherent requirements of a job should not include an assessment of whether he or she will be unable to perform the inherent requirements in the future on the basis of his or her genetic status.

31–2 Where genetic information is used to assess an applicant or employee’s ability to perform the inherent requirements of a job, employers should develop clearly defined job descriptions that identify these inherent requirements. Employers should also develop policies to ensure that genetic information is used for these purposes only in relevant and reasonable circumstances.

31–3 The Commonwealth should amend the DDA to prohibit an employer from requesting or requiring genetic information from a job applicant or employee except where the information is reasonably required for a purpose that does not involve unlawful discrimination, such as ensuring that a person is able to perform the inherent requirements of the job.

31–4 The Human Rights and Equal Opportunity Commission, in consultation with the Human Genetics Commission of Australia and other stakeholders, should develop guidelines dealing with the collection and use of genetic information in employment. The Attorney-General should consider the development of Disability Standards in this area pursuant to the DDA.

32. Occupational Health and Safety

32–1 The Human Genetics Commission of Australia (HGCA) should establish procedures to assess and make recommendations on whether particular genetic tests should be used in employment for screening for susceptibility to work-related conditions. In assessing particular genetic tests, the HGCA should consider whether:

• there is strong evidence of a clear connection between the working environment and the development of the condition;
• the condition may seriously endanger the health or safety of employees; and
• the test is a scientifically reliable method of screening for the condition.

32–2 The HGCA and the National Occupational Health and Safety Commission (NOHSC) should collaborate with other stakeholders to develop national guidelines for the conduct of genetic screening for susceptibility to work-related conditions. The guidelines should indicate:

· that genetic screening of job applicants and employees for susceptibility to work-related conditions should not be conducted if the danger can be eliminated or significantly reduced by reasonable measures taken by the employer to reduce the environmental risk;

• that employers should use genetic tests only where they have been recommended for that purpose by the HGCA;
• how genetic test results are to be interpreted;
• that screening should not be conducted on a job applicant until the applicant has been made an offer of employment;
• that screening should be conducted on a voluntary basis except in those rare circumstances in which the HGCA has recommended that screening be mandatory;
• the circumstances in which family medical history may be collected and used;
• what provision should be made for genetic counselling of those undergoing testing;
• appropriate responses by employers where genetic screening reveals relevant susceptibilities; and
• what measures should be taken to ensure the confidentiality of screening results.

32–3 NOHSC should consider adopting the national guidelines on the conduct of genetic screening for susceptibility to work-related conditions as a national code of practice. NOHSC should ensure that the National Priority Action Plans developed under the National OHS Strategy 2002–2012 reflect these developments.

32–4 Within the framework of the National Hazardous Substances Regulatory Package, NOHSC, in consultation with the HGCA and other stakeholders, should develop a national code of practice for the conduct of genetic monitoring of employees exposed to hazardous substances in the workplace. Under this code of practice, genetic monitoring of employees should be conducted only where:

• there is strong evidence of a connection between the working environment and the development of the condition;
• the condition may seriously endanger the health or safety of employees; and
• there is a scientifically reliable method of screening for the condition.

32–5 The HGCA and NOHSC should collaborate with other stakeholders to develop national guidelines for the collection and use of genetic information from applicants and employees for the protection of third party safety. The guidelines should indicate that genetic information from an applicant or employee should not be collected or used for the protection of third party safety if the danger can be eliminated or significantly reduced by other reasonable measures taken by the employer. Where this is not possible, genetic information should be collected or used only where:

• the applicant or employee’s condition poses a real risk of serious danger to the health or safety of third parties; and
• there is a scientifically reliable method of screening for the condition.

32–6 NOHSC should consider adopting the national guidelines on the collection and use of genetic information for the protection of third party safety as a national code of practice. NOHSC should ensure that the National Priority Action Plans developed under the National OHS Strategy 2002–2012 reflect these developments.

33. Workers’ Compensation

33–1 The Human Genetics Commission of Australia, in consultation with the Heads of Workplace Safety and Compensation Authorities, should develop a policy regarding the appropriate use of genetic information in the assessment of workers’ compensation claims.

34. Employment and Genetic Privacy

34–1 The Commonwealth should amend the Privacy Act 1988 (Cth) (Privacy Act) to ensure that employee records are subject to the protections of the Act, to the extent that they contain genetic information.

34–2 The Commonwealth Attorney-General’s Department and the Department of Employment and Workplace Relations, in their pending inter-departmental review of the employee records exemption, should consider whether the Privacy Act should be amended to ensure that employee records are subject to the protections of the Act, to the extent that they contain health information other than genetic information.