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Businesses Lobby as Genetic Nondiscrimination Bill Nears Vote

March 12, 2007 Human Resource Executive Online

Business groups say a proposed bill banning the use of genetic information in work and health-care decisions is both unnecessary and a potential boondoggle, saying it could open the door to confusing regulations and procedures, a mandate to provide genetic-health benefits and the potential for costly lawsuits.

By Stephen Barlas

Business groups are working hard, and with only minimal success thus far, to change the language in a bill which imposes a new federal standard on companies with regard to the use of genetic information of employees.

The Genetic Information Nondiscrimination Act -- approved by a committee in both the Senate and the House, and due for floor action in both soon -- would prohibit employers from using individuals' genetic information when making hiring, firing, job placement or promotion decisions.

It would also make it illegal for group-health plans and health insurers to use genetic information to deny coverage to healthy individuals or charge them extra because of their genetic make-up.

It is unclear when the bill will come up for floor votes, but observers say passage seems assured -- the Senate in previous sessions has twice passed the bill, while the Democrats now in control of the House should prevail.

All of which leaves business groups scrambling to seek modifications.

"First off, this bill is unnecessary at this time. It is basically a solution in search of a problem," says Jason Straczewski, director of human resources policy for the National Association of Manufacturers in Washington.

NAM is allied with other business trade associations under the banner of the Genetic Information Nondiscrimination in Employment Coalition, whose members, and their companies, believe genetic discrimination is unlawful. Members include the U.S. Chamber of Commerce, Society for Human Resource Management and the HR Policy Association.

Just before the Senate Health Education Labor and Pensions Committee approved its bill on Jan. 31, the GINE Coalition complained about numerous provisions, such as its establishment of a de facto federal mandate requiring employers to offer health plans covering all treatments for genetic-related conditions; opening the door to substantial damages, including compensatory and punitive damages, for paperwork violations or for failing to properly distinguish genetic information from other health-care information; and requiring organizations to follow one set of rules for handling genetic information and a different set for handling health-care information.

The Senate committee passed the bill overwhelmingly without addressing any of the coalition's concerns.

However, the House Education and Labor Committee, one of three House committees with jurisdiction, was a bit more responsive when it approved the bill by a voice vote on Feb. 14. A number of changes were made to their bill that were meant to address GINE's concerns about additional record-keeping requirements and the creation of a new federal mandate.

However, NAM's Straczewski says the committee's amendment "makes the bill a little bit better, but we are still not there."

Another concern, says Michael Eastman, executive director of labor policy for the U.S. Chamber of Commerce in Washington, is the bill would not allow employers to use consultants to handle confidential genetic-health information as they can with confidential health information subject to the Health Insurance Portability and Accountability Act.

"The bill has provisions that conflict both with HIPAA and the Americans with Disabilities Act," Eastman says.

In addition, he says, passage of the bill could impose two new sets of costs on companies.

The first would have to do with general implementation issues. He compares these potential problems with those that have arisen from implementation of the Family Medical Leave Act, which, he says, "employers have struggled with," such as the confusion over how to comply with the FMLA's provision on unscheduled absences.

The second set of potential costs could arise from lawsuits that might be filed. Eastman notes that while more than 60 percent of the employee-discrimination lawsuits filed with the Equal Employment Opportunity Commission are ruled without any merit, it costs a company between $30,000 and $50,000 per case to defend itself.