Recent media accounts (e.g. this report — Blood Test Predicts Alzheimer’s Disease – by CNN ) suggest that medical researchers have discovered a blood test that will help identify whether people are likely to develop Alzheimer’s Disease in their lifetime with 90% accuracy. So far, the test only has been conducted on individuals who are over 70 years old, but researchers will begin seeing whether these promising results can be obtained on people in their 40’s and 50’s. These research findings are obviously welcome news, but raise many questions assuming the test becomes more universally available. Not the least of these questions will be whether people really will want to know their fate. Any number of factors will likely play into any one person’s decision, but whether obtaining the test will have any impact on his or her employment should not be one of them.
Though it may be a long ways down the road before the Alzheimer’s blood test becomes realistic for employees in the prime of their working years, other medical research advances permitting individuals to learn their medical fate may have a more immediate impact. Indeed, at least one company already offers direct to consumer genetic testing and interpretation services. Should an employer learn of this kind of information as it relates to one of its employees, it could be exposed to potential liability if the information were to ever use it for employment purposes. While I’m convinced that the vast majority of employers would never actually make an employment decision based upon their employees’ genetic or protected health information, mere access to the information will put the employer in the position of having to prove that their decisions were not based on such information Fortunately, for both employee and employer, HIPAA would prevent the transfer of any protected health information held by the employer’s group health plan to the its human resources decision-makers or supervisors and managers. Should information cross this imaginary line, however, the employer faces potential liability not only under HIPAA but under a variety of other federal laws such as GINA (prohibiting the use of genetic information in making employment decisions), ERISA §510 (prohibiting employers from discharging or discriminating against plan participants for the purpose of interfering with the attainment of any right to which the participants may become entitled under a plan) and the ADA (prohibiting discrimination against qualified individuals with a disability.)
As medical advances continue to provide us with more information about our health, it will become increasingly more important for employers to ensure that people who make decisions regarding individuals’ employment do not have access to the individual’s health information. Employers should resist any temptation they may have to access any protected health information held by their group health plan and should ensure that all medical information held by them as employers is segregated from employee personnel files. This definitely is one of those situations where the less known the better.