Genes are the building blocks of life, shaping our physical traits, personal characteristics, and our biological make-up, and the field of genetic testing and mapping is advancing rapidly. With a simple cheek swab, health care professionals can now often predict whether an individual is predisposed to developing a particular disease or medical condition.
While such scientific advances can enable individuals to take proactive steps to avoid adverse health consequences, genetic testing also brings with it the risk that individuals may be discriminated against on the basis of the personal information within their genetic codes, either in the workplace, in the context of insurance policies, or elsewhere. Furthermore, the concern with potential genetic discrimination may dissuade individuals from undergoing genetic testing, sacrificing a valuable opportunity to discover a potential health risk and take appropriate steps to mitigate it.
The Genetic Non-Discrimination Act
On the basis of these concerns, the Canadian government recently enacted the Genetic Non-Discrimination Act, S.C. 2017, c. 3 (the “Act”), which came into force on May 4, 2017.
The Act ushers in three significant changes aimed at eliminating discrimination based on genetic characteristics in Canada:
- Prohibition against genetic testing conditions in agreements
The Act prohibits persons other than health care practitioners and medical researchers from requiring an individual to undergo a genetic test or disclose the results of a genetic test as a condition of:
a. providing goods or services to that individual;
b. entering into or continuing a contract or agreement with that individual; or
c. offering specific conditions in a contract or agreement with that individual.
Although this aspect of the Act is cast in broad and general terms, concerns have been expressed that this prohibition is an unconstitutional attack on the insurance industry (which is a matter falling within provincial jurisdiction) and will likely be tested in court.
2. Prohibitions relating to genetic testing added to Canada Labour Code (“Code”)
The Act adds new provisions to the Code, prohibiting employers from requiring employees to undergo or to disclose a “genetic test”, defined as “a test that analyzes the employee’s DNA, RNA or chromosomes for purposes such as the prediction of disease or vertical transmission risks, or monitoring, diagnosis or prognosis”, or from taking any disciplinary action against an employee:
a. because the employee refused a request to undergo a genetic test;
b. because the employee refused to disclose the results of a genetic test; or
c. on the basis of the results of a genetic test.
Employers are also prohibited from collecting or using the results of a genetic test without the written consent of the employee, and third parties are prohibited from disclosing the results or existence of a genetic test to an employer without the employee’s written consent.
3. New prohibited ground of discrimination added to Canadian Human Rights Act (“CHRA”)
Finally, the Act adds to the CHRA the new prohibited ground of “genetic characteristics”. Though “genetic characteristics” is not defined, the Act includes a provision clarifying that, where the form of discrimination is based on the refusal of a request to undergo a genetic test or to disclose the results of a genetic test, the discrimination shall be deemed to be on the ground of genetic characteristics. This clarification was made, at least in part, in response to concerns that the term “genetic characteristics” might be interpreted in an overly broad manner, as almost any trait could be considered to be based, at least to some degree, on genetics. However, it will be up to the Canadian Human Rights Tribunal to further delineate the scope of discrimination in connection with the new ground of “genetic characteristics”.
The changes introduced by the Act bring Canada in line with all other G7 nations. The full scope of their impact on workplaces in Canada remains to be seen. We will continue to monitor the consequences created by the Act and keep you abreast of relevant developments. If you have any questions about how the new requirements and prohibitions discussed above may affect your business, do not hesitate to contact one of the members of our Labour and Employment group.
*drafted with the assistance of articling student, Connor Bildfell.