Many employers in Canada require that their future and current employees undergo medical examinations to determine their capacity to accomplish their work. However, can employers require that future and current employees undergo a genetic test or disclose the results of such a test to determine, for example, their future capacity to accomplish their work? The federal government decided that they could not. On May 4, 2017, An Act to prohibit and prevent genetic discrimination otherwise known as the Genetic Non-Discrimination Act (hereinafter referred to as the "Act") came into force. The purpose of the Act is to protect individuals who suffer from genetic disorders or are genetically predisposed to certain diseases from being discriminated against, including in their employment. The Act implements three important legislative changes:
- It enacts new legislation which prohibits against the requirement for an individual to undergo a genetic test or disclose its results in different circumstances.
- It amends the Canada Labour Code by adding specific prohibitions against genetic testing in employment.
- It amends the Canadian Human Rights Act by adding genetic characteristics as a prohibited ground of discrimination, including in employment.
The Genetic Non-Discrimination Act
The Act establishes a general prohibition against requiring individuals 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". Furthermore, should an individual undergo a genetic test, they cannot be forced to disclose its results, nor can they face reprisals for not disclosing them. Since it is not specifically provided for in the Act, these general prohibitions could be interpreted as applying to employment contracts and agreements.
Consequences for non-compliance are significant. Violators face fines of up to $1,000,000.00 and may even face a jail sentence of a maximum of five years.
Amendments to the Canada Labour Code
To further reflect these contractual prohibitions in an employment context, the Canada Labour Code has also been modified by rendering it illegal for employers to require their employees to undergo a genetic test or to require them to disclose the results therefrom. 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 do otherwise, employees may file a complaint with an inspector and have their complaint referred to an adjudicator who may order the retraction of a disciplinary measure, the reinstatement of the employee or impose any other remedy that it deems appropriate.
Amendments to the Canadian Human Rights Act
The Act has also lead to important amendments in the Canadian Human Rights Act. Genetic characteristics are now considered to be one of the prohibited grounds of discrimination in the Canadian Human Rights Act. This means that over and above the recourses available to employees in the Act and in the amendments to the Canada Labour Code, employers can now also be the subject of a complaint to the Canadian Human Rights Commission if they discriminate against a future or current employee who refuses to undergo a genetic test or to disclose the results of such a test.
These modifications will have an important impact on federally-regulated employers to whom these laws apply. Therefore, federally-regulated employers that require future or current employees to undergo a genetic test or rely upon the results of these tests in order to make hiring or employment related decisions should alter their practices.
That being said, the constitutionality of parts of the Act will be challenged. The Québec 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, it will not contest the amendments to the Canada Labour Code and the Canadian Human Rights Act which only apply to federally-regulated employers. In the meantime, the Act as a whole remains in force.