Predictive Health Information and Employment Discrimination under the ADA and GINA

M.A. Rothstein , Medical Screening and the Employee Health Cost Crisis (Washington, DC: BNA Books, 1989): at 1.

42 U.S.C. §§ 12101-12213.

42 U.S.C. §§ 300gg-300gg-2.

42 U.S.C. § 2000ff.

Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act, Pub. L. No. 111-148, 124 Stat. 119-1025 (2010).

E.C. Nice , “Challenges for Omics Technologies in the Implementation of Personalized Medicine,” Expert Review of Precision Medicine and Drug Development 3, no. 4 (2018): 229-231.

G. Currie and C. Delles , “The Future of ‘Omics” in Hypertension,” Canadian Journal of Cardiology 33, no. 5 (2017): 601-610.

L.P. Sugrue and R.S. Desikan , “What Are Polygenic Scores and Why Are They Important?” Journal of the American Medical Association 321, no. 18 (2019): 1820-1821.

A.R. Martin et al., “Clinical Use of Current Polygenic Risk Scores May Exacerbate Health Disparities,” Nature Genetics 51, no. 4 (2019): 584-591.

M.W. Logue et al., “Use of an Alzheimer’s Polygenic Risk Score to Identify Mild Cognitive Impairment in Adults in their 50s,” Molecular Psychiatry 24, no. 3 (2019): 421-430.

J. Elliott et al., “Predictive Accuracy of a Polygenic Risk Score-Enhanced Prediction Model vs a Clinical Risk Score for Coronary Artery Disease,” Journal of the American Medical Association 323, no. 7 (2020): 636-645 (polygenic risk score when added to pooled cohort equations resulted in “significant, yet modest” improvement in predictive accuracy).

A. Torkamani and E. Topol , “Polygenic Risk Scores Expand to Obesity,” Cell 177, no. 3 (2019): 518-520.

The All of Us Research Program Investigators, “The ‘All of Us’ Research Program,” New England Journal of Medicine 381, no. 7 (2019): 668-676.

M.A. Rothstein , “Structural Challenges of Precision Medicine,” Journal of Law, Medicine & Ethics 45, no. 1 (2017): 274-279, 276.

B.A. Areheart and J.L. Roberts , “GINA, Big Data, and the Future of Employee Privacy,” Yale Law Journal 128, no. 3 (2019): 710-790.

S. Hoffman , “What Genetic Testing Teaches about Predictive Analytics Regulation,” North Carolina Law Review 98, no. 1 (2019): 123-163.

M.A. Rothstein , “Some Lingering Concerns about the Precision Medicine Initiative,” Journal of Law, Medicine & Ethics 44, no. 3 (2016): 520-526, 522.

45 C.F.R. Parts 160, 164.

M.A. Rothstein and S.A. Tovino , “Privacy Risks of Interoperable Electronic Health Records: Segmentation of Sensitive Information Will Help,” Journal of Law, Medicine & Ethics 47, no. 4 (2019): 771-777.

M.A. Rothstein and M.K. Talbott , “Compelled Disclosures of Health Records: Updated Estimates,” Journal of Law, Medicine & Ethics 45, no. 1 (2017): 149-155.

See M.A. Rothstein , Medical Screening of Workers (Washington, DC: BNA Books, 1984).

See Rothstein, supra note 1.

Presenteeism refers to a situation where employees are physically at work, but they are unable to perform their duties adequately because of illness or injury. See P. Hemp , “Presenteeism: At Work – But Out of It,” Harvard Business Review 82, no. 10 (2004): 49-58.

Discrimination against individuals because of increased health care costs would violate the Affordable Care Act and the Americans with Disabilities Act. See J.L. Roberts , “Healthism and the Law of Employment Discrimination,” Iowa Law Review 99, no. 2 (2014): 571-635.

Impaired employees are more likely to be involved in accidents causing injury to themselves or co-employees.

29 U.S.C. §§ 2601-2654.

See S. Hoffman , “Big Data and the Americans with Disabilities Act,” Hastings Law Journal 68, no. 4 (2017): 777-793, 780-784.

42 U.S.C. § 12112(a).

29 U.S.C. §§ 701-796. The Rehabilitation Act applies to federal agencies (§ 501), federal government contractors (§ 503), and recipients of federal financial assistance (§ 504).

42 U.S.C. § 12102(2).

ADA Amendments Act of 2008, § 4(a)(3)(A), amending ADA § 3(2)(C), 42 U.S.C. § 12102. See generally S. Befort , “Let’s Try This Again: The ADA Amendments Act of 2008 Attempts to Reinvigorate the ‘Regarded As’ Prong of the Statutory Definition of Disability,” Utah Law Review 2010 (2010): 993-1028.

For a discussion of the ADA’s legislative history, see L.J. Davis , Enabling Acts: The Hidden Story of How the Americans with Disabilities Act Gave the Largest US Minority Its Rights (Boston, MA: Beacon Press, 2015).

941 F.3d 331 (7th Cir. 2019).

See M.A. Rothstein , J. Roberts , and T.L. Guidotti , “Limiting Occupational Medical Examinations under the Americans with Disabilities Act and the Genetic Information Nondiscrimi-nation Act,” American Journal of Law & Medicine 41, no. 4 (2015): 523-567 (2015) (discussing preplacement medical examinations).

Although the defendant’s rationale clearly implicates the “direct threat” language of the ADA, see Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002), it is not clear that medical evidence would substantiate the fear of sudden incapacitation. Nevertheless, other cases have decided the “future risk” issue without the need to assert sudden incapacitation. See the cases cited in notes 39-40 infra.

Richardson v. Chicago Transit Authority, 926 F.3d 881 (7th Cir. 2019). ADA coverage for obesity remains unresolved, but some state disability discrimination statutes clearly apply to individuals with obesity. See Taylor v. Burlington Northern Railroad Holdings, Inc., 444 P.3d 606, 608 (Wash. 2019) (“obesity always qualifies as an impairment” under Washington law).

Shell v. Burlington Northern Santa Fe Railroad Co., 941 F.3d 331, 335-336 (7th Cir. 2019).

Id. at 336.

Morriss v. BNSF Railway Co., 817 F.3d 1104, 1113 (8th Cir. 2016).

EEOC v. BNSF Railway Co., 902 F.3d 916, 923 (9th Cir. 2018).

Adair v. City of Muskogee, 823 F.3d 1297, 1306 (10th Cir. 2016). See also EEOC v. STME, LLC, 938 F.3d 1305 (11th Cir. 2019) (J. Jordan, concurring). In Darby v. Childvine, Inc., 964 F.3d441 (6th Cir. 2020)(BRCA1 mutation and precancerous cells qualified as a disability under the ADA).

EEOC Compliance Manual § 902.8, 2009 WL 4782113. This interpretation was adopted in 1995, the year an earlier version of GINA was first introduced in Congress and 13 years before GINA’s enactment. In the interest of full disclosure, in 1995 I served as Special Legislative Counsel to NIH and worked with the late EEOC Commissioner Paul Steven Miller and his staff to develop this interpretation.

29 C.F.R. Pt. 1630, App. § 1630.2(h).

Shell, 941 F.3d at 337.

School Board of Nassau County, Florida v. Arline, 480 U.S. 273, 284 (1987) (case decided under the Rehabilitation Act has been cited with approval in ADA cases).

243 F.3d 1012 (7th Cir. 2001).

Id. at 1019 (Wood, J., dissenting).

See M.A. Rothstein , “GINA, the ADA, and Genetic Discrimination in Employment,” Journal of Law, Medicine & Ethics 36, no. 4 (2008): 837-840 (arguing that gaps remain in the coverage of genetic-related impairments).

42 U.S.C. § 2000ff (4)(A).

See AE.R. Prince and B.E. Berkman , “When Does an Illness Begin: Genetic Discrimination and Disease Manifestation,” Journal of Law, Medicine & Ethics 40, no. 3 (2012): 655-664.

See supra note 5.

See supra note 48 (discussing gaps in coverage of GINA and the ADA).

See generally J.L. Roberts and E. Weeks , Healthism: Health-Status Discrimination and the Law (New York, NY: Cambridge University Press, 2018) (discussing health-status discrimination in various contexts).

See L. Rothstein , “Would the ADA Pass Today?: Disability Rights in an Age of Partisan Polarization,” Saint Louis Journal of Health Law and Policy 12, no. 2 (2019): 271-309.

42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.2(p).

GINA was enacted so that individuals would not be reluctant to undergo genetic testing, participate in genetic research, or avail themselves of genetic services. GINA § 2(5), 42 U.S.C. § 2000ff note. See J.L. Roberts , “Preempting Discrimination: Lessons from the Genetic Information Nondiscrimi-nation Act,” Vanderbilt Law Review 63, no. 2 (2010): 439-490.

M.A. Rothstein , “Genetic Exceptionalism and Legislative Pragmatism,” Hastings Center Report 35, no. 4 (2005): 27-33.

M.A. Rothstein , “Time to End the Use of Genetic Test Results in Life Insurance Underwriting,” Journal of Law, Medicine & Ethics 46, no. 3 (2018): 794-801 (arguing that banning genetic test results in life insurance underwriting will save lives because some genetically at-risk individuals decline beneficial testing and follow-up because they are worried about being excluded from life insurance coverage).

See N. Garrison et al., “Genomic Contextualism: Shifting the Rhetoric of Genetic Exceptionalism,” American Journal of Bioethics 19, no. 1 (2019): 51-63 (arguing that as policy focus shifts from genetics to genomics, contextualism rather than exceptionalism is a better analytic approach).

See E.W. Clayton et al., “The Law of Genetic Privacy: Applications, Implications, and Limitations,” Journal of Law and the Biosciences 6, no. 1 (2019): 1-36, 13-14, doi: 10.1093/jlb/lsz007.

42 U.S.C. § 2000ff-1(b)(5).

See M.A. Rothstein , “Genetics and the Workforce of the Next Hundred Years,” Columbia Business Law Review 3, no. 3 (2000): 371-402 (proposing optional, confidential genetic testing and monitoring at both the preplacement and periodic stages of employment).

See M.A. Rothstein , “Legal Conceptions of Equality in the Genomic Age,” Law & Inequality 25, no. 2 (2007): 429-463.

29 C.F.R. § 1630.j(1)(vii).

See 29 C.F.R. § 1630.2(i) (defining major life activities).

42 U.S.C. § 2000e(k).

Pregnant women are not entitled to reasonable accommodation under Title VII. Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015). See L.C. Hébert , “Disparate Impact and Pregnancy: Title VII’s Other Accommodation Requirement,” American University Journal of Gender, Social Policy & the Law 24, no. 1 (2015): 107-173.

29 U.S.C. §§ 621-634. There is no duty of reasonable accommodation under the ADEA.

Hoffman, supra note 27, at 787.

29 C.F.R. § 1630.2(o)(4).

Another way of broadening the coverage of the ADA to include future health risks while also providing for reasonable accommodation is to amend section 3(2) of the ADA by adding a fourth prong to the definition of disability: “(D) having a risk of a future physical or mental impairment that would substantially limit one or more of the major life activities of such individual, having a record of such a risk, or being regarded as having such a risk.” See M.A. Rothstein , “Genetic Secrets: A Policy Framework,” Genetic Secrets: Protecting Privacy and Confidentiality in the Genetic Era, M.A. Rothstein , ed. (New Haven: Yale University Press, 1997): 451-495, 477.

ADA Amendments Act of 2008, § 3(3) (B); 42 U.S.C. § 12102(3)(B).

This provision would not apply to seasonal or temporary employment, and thus an employer might be required to hire short-term employees with more immediate future impairments. On the other extreme, the six-month rule should be a presumption that can be rebutted by an employer upon a showing that the job requirement (e.g., one-year stay at a remote location) or training period (during which time the individual is unable to obtain certification or make significant contributions to the enterprise) extends beyond six months.

42 U.S.C. § 12112(d)(3). The current provision does not limit the scope of medical examinations and inquiries, but if a conditional offer is withdrawn based on an “employment entrance examination,” the exclusion must be job-related and consistent with business necessity. 42 U.S.C. §12112(b)(6).

42 U.S.C. § 12112(d)(4).

R. Schlaberg , “Microbiome Diagnostics,” Clinical Chemistry 66, no. 1 (2020): 68-76.

See Clayton et al., supra note 60.

See Rothstein, supra note 62.

State laws prohibiting discrimination on the basis of disability or genetic information generally follow the framework of federal legislation and therefore ought to be amended in a similar fashion.