Employers are always trying to create for a more productive and efficient workplace. Along with this comes a search to mitigate risk when hiring employees. One of the growing trends to achieve this is genetic testing. The benefit is that employees would not be working in an environment in which they might be susceptible to a particular workplace condition – a big plus for workplace health and safety. The downsides of testing are a high potential for discrimination, concerns over the tests efficacy and overall privacy issues.

“Employers must ask themselves if the benefits of genetic testing outweigh risks like discrimination claims and privacy issues, and if so, how am I going to manage those risks,” says Angus Macinnis, a senior lawyer at StevensVuaran lawyers, who has practised in employment law for more than 15 years.

Currently an employer can ask a job applicant or employee to provide medical history or any genetic test information in order to identify if that person is susceptible to a particular work-related condition. In rare circumstances, the employer can choose to not hire someone because of their genetic predisposition towards a disease.

For example, individuals with a genetic deficiency in the production of alpha-1 antitrypsin are more susceptible to lung disease if exposed to dusty work environments. Therefore, asking someone with this condition to sort materials in a dusty storeroom doesn’t make sense.

The subject of genetic testing at work is starting to make its way into courts. The Equal Employment Opportunity Commission in the US heard it’s first case related to violations of the Genetic Information Nondiscrimination Act (GINA) last year. And in Australia, the Human Rights Equal Opportunity Commission has received three complaints so far involving genetic testing and issues of employment. These cases, and more, came about at various stages, pre- and post-employment.

But are the genetic tests actually reliable and predictive of a disease? Many conditions are multi-factorial and are caused by a combination of environmental and genetic interactions. Isolating just one of these interactions and being conclusive about its outcome is difficult at best.

Another issue is the potential for employers to test for other genetic mutations that could affect a worker’s employment. Such results could prevent the employment of a candidate. For this reason, the Australian Law Reform Commission recommends that genetic tests should only be issued once a preferred candidate is selected. By minimising those being tested, the risks to privacy and the potential for unlawful discrimination based on the results are mitigated.

Speaking of, privacy is another concern for genetic testing, as many would not feel comfortable with their employer having their genetic information stored on file.

“Employers who are going to collect genetic information need to be very clear about what they are going to do with the information once collected,” argues Macinnis. “In my view, the consequences of wrongful disclosure of genetic information would make it very hard for any employer to justify retaining employees’ genetic information as a matter of course.”

Genetic testing currently poses interesting ethical questions in employment law, but as the actual testing is expensive and can often be inconclusive there isn’t a clear path for the future. But with technology advancing, genetic testing will become cheaper and more accurate and no doubt the debate about whether or not it should be used will grow.