Medical Breakthroughs and GINA Liability
A new breakthrough allows brain scans using radioactive dye called florbetapir to detect Alzheimer's disease. The new dye is waiting for regulatory approval and will provide the first tool for fast and definitive diagnosis of Alzheimer's disease. Today, doctors rely on memory tests, family histories and interviews with relatives to diagnose Alzheimer's. Autopsies are still needed to check for the hallmark of the disease, a protein found in the brain called beta amyloid.
A recent study was part of the final stages of testing needed to obtain approval for use in the U.S. The study involved 220 patients with illnesses such as cancer and heart disease who were at the end of their lives. The patients underwent brain scans using the florbetapir.
The test caused the protein beta amyloid to "light up" when the patient's brain was scanned. After death, the brains of the study patients were autopsied and there was strong correlation between plaques found in the brain tissues and the places where the scans using the florbetapir showed the protein was located. Kanoko Matsuyama for Bloomberg "Alzheimer's Can Be Detected With Avid's Brain Dye, Study Says," www.businessweek.com (July 12, 2010).
Commentary
According to the U.S. National Institutes of Health, as many as 5.1 million Americans may have Alzheimer's disease. Alzheimer's is the most common form of dementia in older people. Not only are older workers candidates for the disease, but also employees of all ages may some day face the challenge of caring for a loved one with Alzheimer's disease.
While the new test may prove a breakthrough for patients, families and doctors, it and other similar tests are a new source of liability for employers.
The Equal Employment Opportunity Commission (EEOC) enforces Title II of Genetics Information Nondiscrimination Act of 2008 (GINA.) Under Title II of GINA, it is illegal to discriminate against employees or applicants because of genetic information. Furthermore, GINA restricts the use and acquisition of genetic information by employers and strictly limits the disclosure of genetic information.
Genetic information includes information about the genetic tests of an individual and an individual's family members as well as information about any disease, disorder or family medical history. Family medical history is included because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future.
Thus, test results of the new Alzheimer's test as well as any family medical history regarding Alzheimer's disease are protected under GINA.
GINA forbids discrimination when it comes to all aspects of employment including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits or any other term or condition of employment. According to the EEOC, an employer may never use genetic information to make an employment decision.
GINA also makes it unlawful for an employer to disclose genetic information about applicants or employees. Employers should play close attention to the prohibition against disclosure because it creates the greatest short-term potential for litigation under the Act. Employers must keep genetic information confidential and in a separate medical file unless the information is otherwise kept in compliance with the Americans with Disabilities Act.
Finally, GINA makes it unlawful for employers to obtain genetic information outside of specific situations. It is never a best practice for an employer to request test results unless related to alcohol or drug testing.
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This informational piece is part of "News to Use" published on July 27, 2010.
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