AFFIRMATIVE EMPLOYMENT GENETIC SCREENING INHERENCY 295
AMERICANS WITH DISABILITIES ACT IS INADEQUATE
THE AMERICANS WITH DISABILITIES ACT DOES NOT PROTECT INFORMATIONAL PRIVACY
David M. Studdert, Policy Analyst, RAND Institute for Civil Justice and RAND Health; "Direct Contracts, Data Sharing and Employee Risk Selection:" American Journal of Law & Medicine , 1999, 25 Am. J. L. and Med. 233, EE2001-JGM, P.258
However, the ADA is not oriented toward protection of informational privacy. Several structural features of the Act limit its capacity to restrain employers from making use of health care data in ways that run counter to employees' interests. One limitation is that employers with fewer than 15 employees are not covered by the ADA. n196 Presently, small firms are unlikely to be heavily immersed in treatment data as part of direct contracting arrangements with providers. n197 However, they may well be in tomorrow's health insurance markets, which becomes doubly concerning because these are precisely the environs in which efforts to "de-identify" data are least likely to be effective. A second limitation is that enforcement of rights under the ADA, with the exception of those protections set out in Section 102, relies on a breach. This Article has already touched on the shortcomings intrinsic to this approach as a means of protecting the confidentiality of health care information. n198
AMERICANS WITH DISABILITIES ACT PROTECTIONS ARE INSUFFICIENT FOR GENETIC SCREENING OF EMPLOYEES
ARMOND BUDISH, The Plain Dealer March 26, 2000, SECTION: LIVING; Pg. 7L TITLE: HAVING THE WRONG GENES CAN COST YOU YOUR JOB // acs-VT2001
Even if the disabilities act is deemed to bar genetic discrimination, it will be hard to protect employees once employers possess damaging test results. If an employer fears huge medical expenses, it might find some other reason to fire or not to hire an employee.
THE AMERICAN WITH DISABILITIES ACT DOESN'T PREVENT DISCRIMINATION BASED ON GENETIC TESTING
Charles Sykes, Senior Fellow at the Wisconsin Policy Institute, THE END OF PRIVACY, 1999, EE2001-JGM,p.129-30
Similarly, the Americans with Disabilities Act bars discrimination
based on disability, but the law continues to allow preplacement medical
exams of unlimited scope, including genetic testing. The ban on preem
ployment inquiries into possible disabilities does not prevent the voluntary
disclosure of medical information about an applicant by a third party or by the applicant himself Although the law bars employers from withdrawing a job offer after the employee undergoes a preplacement medical exam, nothing prevents employers from gathering genetic data on their employees. Policymakers have reasoned that there is no reason to block employer access to such information since the employer is prohibited from using that information inappropriately. That means, according to Mark Rothstein, that company medical officers may require that individuals consent to giving blood samples as a condition of employment but "the employers need not disclose what tests are being performed on the blood and need not disclose any test results." Moreover, it is legal under the law for employers to require-again as a condition of employment-that applicants sign a release authorizing the disclosure of A of their medical records, including family histories and the results of genetic tests. Nor does the law prohibit company medical officers from sharing medical information with management, including diagnostic results about employees."