Introduction

Medical examinations of future and present employees are commonly required by Canadian employers to verify a person's capacity to do the work. However, since May 2017, federally regulated employers can no longer require that employees undergo genetic testing or disclose the results to determine, for example, whether they will be able to do their work in future.

In May 2017 the Genetic Non-discrimination Act (SC 2017) to prohibit and prevent genetic discrimination came into force. The objective of the act is to protect persons who suffer from genetic disorders or are genetically predisposed to certain diseases from discrimination, including in their employment. The act implements three significant legislative modifications. It introduces:

  • new legislation that prohibits the requirement for an individual to undergo genetic testing in various circumstances;
  • amendments to the Canada Labour Code by adding specific prohibitions against genetic testing in employment; and
  • amendments to the Canadian Human Rights Act by adding genetic characteristics as a prohibited ground of discrimination, including in employment.

Genetic Non-discrimination Act

The primary rule established by the Genetic Non-discrimination Act is the general prohibition against requiring an individual to undergo a genetic test as a condition for "providing goods or services", "entering or continuing a contract or agreement" or "offering or continuing specific terms or conditions in a contract or agreement" (Section 3).

Further, should individuals undergo a genetic test, they cannot be forced to disclose the results nor face reprisals for not disclosing them. Since it is not specifically provided for in the act, these general prohibitions can be interpreted as applying to employment contracts and agreements.

The consequences for non-compliance are significant. Violators face fines of up to C$1 million and may even face a maximum of five years' imprisonment.

Amendments to Canada Labour Code

Reflecting these contractual prohibitions in employment, the Canada Labour Code has also been modified to render it illegal for employers to require their employees to undergo genetic testing or disclose their results. It is also now illegal for employers to impose any disciplinary measure in the event that an employee refuses to undergo or disclose the results of a genetic test.

Should an employer act otherwise, employees may file a complaint with an inspector and have their complaint referred to an adjudicator, which may order the retraction of a disciplinary measure or the reinstatement of the employee, or impose any other remedy that it deems appropriate.

Amendments to Canadian Human Rights Act

The Genetic Non-discrimination Act has also led to amendments to the Canadian Human Rights Act. Genetic characteristics are now considered to be one of the prohibited grounds of discrimination under the act.

This means that over and above the recourses available to employees under the Genetic Non-discrimination Act and the amended Canada Labour Code, employers can also be the subject of a complaint to the Canadian Human Rights Commission on the grounds of discrimination against a future or present employee based on genetic characteristics.

Comment

These modifications will have a significant impact on federally regulated employers to which these laws apply. Therefore, federally regulated employers that require employees to undergo genetic testing or rely on the results of such testing to make hiring or employment-related decisions should alter their practices.

That said, the constitutionality of parts of the Genetic Non-discrimination Act will be challenged. The Quebec government has already announced that it intends to challenge the constitutionality of parts of the act at the Quebec Court of Appeal by claiming that they impede on the province's jurisdiction over civil and property rights.

However, the government will not contest the amendments to the Canada Labour Code and the Canadian Human Rights Act that apply only to federally regulated employers.

In the meantime, the Genetic Non-discrimination Act as a whole remains in force.

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For further information on this topic please contact Michael Adams at Fasken Martineau DuMoulin LLP by telephone (+1 514 397 7400) or email (madams@fasken.com). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.