BY Shulamit Shvartsman for Lawyers.comsm
Several federal and state employment laws exist to protect you from discrimination based on disease, disability or addiction. Acts such as the Americans with Disabilities Act (ADA) prohibit discrimination based on disease or disability.
It also limits an employer's ability to ask questions related to disability or to conduct medical examinations. For example, if you found out you had cancer, your employer can't fire you for taking time off for treatment, or withdraw an offer for a job.
With the development of preventive medicine and genetic screening, these types of cases become more complex. Today, you can be screened to determine if you're more likely to develop a disease.
If you carry certain genes, you're more likely to develop certain diseases such as breast or ovarian cancer, but it isn't a guarantee you'll get them. Besides the costs of these exams, many people are hesitant to get these potentially life-saving tests because they're afraid of losing their job.
Pamela Fink is a 39-year old woman living in Connecticut. She has worked for a Stamford-based company called MXenergy for four years and had great work reviews.
Two of Pamela's sisters had breast cancer. As a result, she decided to get a genetic test to see if she was a carrier of BRCA2, the breast cancer gene. In 2009 Pamela decided to get a preventive mastectomy when she found out she had the gene.
She notified her bosses and took a medical leave of absence. Her bosses didn't object. They'd always been supportive of her in the past. However, she was in for a rude awakening when she returned to her job after the surgery.
Pamela explained that after her medical leave, she noticed that many of her work responsibilities were taken away from her. Also, her reviews went from positive to negative. She said she felt her entire position in the company had changed. The company eventually fired her claiming performance issues.
After her termination, Pamela filed a complaint with Connecticut's Commission on Human Rights and Opportunities and with the federal Equal Employment Opportunity Commission (EEOC). She claims she was fired because of the genetic test she took.
One of Pamela's allegations in the lawsuit is that her employers violated the federal Genetic Information Nondiscrimination Act (GINA).
What Is GINA?
Genetic testing is a relatively new form of preventive medical care. A patient is screened for various genes which have been found to be associated with several diseases. Genetic testing has the potential to save lives. However, if there's a chance that workers would suffer work-related consequences due to these screenings, they wouldn't take these tests. This would create health risks.
GINA went into effect in November 2008 and for this purpose. Many people were hesitant to get genetic testing because they were afraid they'd lose their job, as Pamela did. GINA protects these workers against discrimination from both health insurance companies not paying claims and employers discriminating against them based on test results.
This bill was passed after a 13-year debate. It received a unanimous Senate vote and was passed in the House by a vote of 414 to 1. This law created the hope that people can now take full advantage of such screenings without fearing prejudice.
Pamela's company has denied the allegations and refused to discuss the issue publicly. Meanwhile, this case has been receiving much attention. It's the first lawsuit in Connecticut to be brought under GINA. Since there aren't many cases nationwide, it will be interesting to see how courts deal with these relatively new legal and medical issues.
Questions for Your Attorney
- What needs to happen to know whether GINA applies to my situation?
- Do I need to have arrangements at work or through my insurance company made to get a screening?
- What happens if my employer refuses to accommodate me?