The rapid pace of technological advances has significantly impacted the workplace and has helped employees be more efficient, accurate and safe. However, with new advancements come novel ethical issues and the means for potential exploitation of workers.
Initiatives like the Human Genome Project will make genetic testing more accessible and accurate, as well as less expensive. This may leave open for long-term disability insurers or employers to access DNA testing or results.
The benefits to employers and long-term disability insurers are clear as it will help both predict future costs. For example, an employer may want access to the DNA test results of an employee to discover their risk of illness or disease in order to reduce the costs that are incurred when employees are required to take time off due to illness.
In addition, an employer may face higher insurance premiums when supplying their employee’s with benefits based on employee illness. An employer can also increase their risk of legal claims against them when their employees become sick and require accommodation, an oft-litigated issue.
Parliament is attempting to get ahead of this issue by reintroducing Bill S-201, Genetic Non-Discrimination Act, which would prohibit discrimination on the basis of genetic makeup by the insurer and in the workplace. Currently, this bill is being debated in the Senate, and if passed will be sent to the House of Commons before it can be ratified.
If Bill S-201 passes this will prohibit a federally-regulated employer’s ability to access the results of genetic testing of its employees unless there is express written consent from the employee. The Bill will also impose quasi-criminal sanctions against an employer for genetic discrimination, which includes the potential for imprisonment.
This bill seems to create a hierarchy of human rights for federally-regulated employees, as it will impose more severe penalties against employers for discriminating on the basis of genetic make-up, as opposed to other protected grounds, such as age, gender, family status and race. This may pose application issues, as the Courts have continually held that all human rights are of equal importance. An easier method to achieve the same result would be to modify existing Human Rights legislation.
Currently, the law in Canada permits genetic testing as long as it is a bona fide occupational requirement. Although this could result in damages payable to the employee, and potential to have new workplace policies and procedures imposed on the employer, there is currently no potential for the imprisonment of an employer if any human rights are violated.
If you are an employee and you think you have been discriminated against by your employer, you should contact an employment lawyer. Monkhouse Law has helped countless employees whose rights have been violated. Please contact us today.
About the Author: Samantha Lucifora is an Employment Lawyer and Senior Associate at Monkhouse Law where she practices Employment, Human Rights and Disability Insurance Law. Samantha can be reached at firstname.lastname@example.org.
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