11 May 2017
The Parliament of Canada announced, on 4 May 2017, that the Genetic Non-Discrimination Act 2017 (‘the Act’), formerly know as Bill S-201, had received Royal Assent. The Act, addressing concerns about access to and use of genetic information, limits the collection, use and disclosure of genetic test results in the employment context and introduces significant protections for employees.
Lyndsay Wasser, Partner at McMillan LLP, told DataGuidance, “Pursuant to the Act’s amendments to the Canada Labour Code 1985 (‘the Code’), even if employees agree to undergo a genetic test, or to disclose the results to their employer, the Act imposes limits on an employer’s ability to use or disclose such information. Additionally, an employer could not engage in discrimination on the basis of genetic test results, [for example] refuse to hire a person or terminate his/her employment on the basis that genetic testing [has revealed] that he/she has a high probability of developing a condition that may be inconvenient or expensive for the employer to accommodate.”
Specifically, the new subsections 247.98 (5) and (6) of the Code prohibit collection or use by, or disclosure to, employers of the results of genetic tests without the written consent of the employee. The Code applies to federal works, undertakings and businesses, such as banks and telecommunications, shipping or aerospace companies.
Wasser commented, “Even if the employee provides written consent to the collection, use and disclosure of the results of their genetic tests, according to the Personal Information Protection and Electronic Documents Act 2000 (‘PIPEDA’), a federally regulated employer still cannot collect, use or disclose more information than required for reasonable purposes. Given the restrictions on using genetic information under the Code, in many cases there may be no reasonable basis for processing genetic information. Even if there is a lawful purpose for processing such information, e.g., to provide some form of accommodation required by the employee, the employer should consider why it needs the genetic information, and that all collection, use or disclosure of the information is reasonably necessary to accomplish such a purpose.”
The Act now expressly prohibits an employer from imposing any disciplinary action because an employee refuses to undergo a genetic test
Additionally, through the new Section 247.99 of the Code, the Act also sets out a new employee complaint and adjudication procedure for dealing with contraventions of its provisions.
Jesstina McFadden, Associate at Miller Thomson LLP, outlined, “The Act now expressly prohibits an employer from imposing any disciplinary action or terminating, suspending, laying-off, demoting or imposing financial and other penalties on an employee based on the results of any genetic testing, or because an employee exercises the right to refuse to undergo a genetic test requested by an employer or refuses to disclose the results of a genetic test. However, in my experience, employers do not generally ask for information about an employee’s genetic makeup, particularly at the outset of employment. Companies generally accept that there are limits to the information they can ask for, and the information that they need to know about an employee’s medical history in order to determine their fitness for a position, or accommodate an employee based on a disability.”
Similarly, the Act’s amendments to the Canadian Human Rights Act 1977 (‘CHRA’) also include a wide prohibition of discrimination based on a person’s genetic characteristics. Prior to the amendments, no federal laws included such a clause.
McFadden concluded, “It remains to be seen how the amendments to the Code and CHRA work in practice, particularly where an employee exercises the right not to undergo testing in circumstances where an employer can establish that requiring information about one’s genetic characteristics is subject to a bona fide occupational requirement defence. The federal Government has been critical of the overlapping and, in its view, duplicative, protections introduced by the Act and have cited the risk for inconsistent application as a concern.”
The Government has stated that it may refer the Act to the Supreme Court of Canada for its opinion on its constitutionality. However, the Office of the Privacy Commissioner of Canada has outlined that the Act will remain in place until this occurs.
Kaveh Lahooti | Privacy Analyst