ANNAPOLIS – A bill prohibiting employers from using a worker’s genetic information to refuse or limit a workers’ compensation claim was introduced in the House of Delegates last week.
The bill prohibits discrimination in workers’ compensation coverage, benefits or determination of disability, because of an employee’s genetic information. And workers’ compensation insurers would not be able to cancel, limit or refuse a policy.
“This is a civil rights bill that protects the rights of workers,” said Delegate Tony E. Fulton, D-Baltimore.
Fulton’s bill is one of the first in the country on workers’ compensation and genetics. It expands a Maryland law, passed last year, which prohibits employers from discriminating against a person, because of genetic information or refusal to take or disclose a genetic test.
No cases of genetic discrimination in workers’ compensation have been reported, but Fulton said his bill is “a preventative measure.”
The concern, Fulton said, is for the potential misuse of genetic information regarding workers’ compensation. Employees may be discriminated against because they have a higher-than-average risk for a disorder.
Cheye Calvo, the National Conference of State Legislatures’ expert on employment and insurance issues, testified at a General Assembly joint committee hearing on the bill in October, saying it was the first hearing on genetics discrimination and workers’ compensation in the nation.
Genetics policy debates have focused on health insurance and employment decisions, Calvo said.
It is unclear whether Maryland’s genetics employment law covers workers’ compensation, he said, “because it hasn’t gotten tested.”
“The criteria for workers’ compensation is whether the workplace contributed to the injury,” Calvo said. “It’s rare that disorders are entirely genetic.”
In some states, including Maryland, “employers would need to prove the workplace didn’t contribute at all.” Other states, he said, have different standards for responsibility.
“Genetic testing to investigate workers’ compensation claims would aim to diagnose conditions already present rather than predicting possible future illness,” Calvo said.
Forty-five states have passed laws restricting the use of genetic information by health insurers and 28 states have genetics employment laws, including Maryland, Calvo said.
This bill protects employees from “being punished for something that doesn’t exist. Something that is simply a possibility,” said Mitchell A. Greenberg, a Baltimore attorney and chairman of the Workers’ Compensation Section for the Maryland Trial Lawyers Association.
“Our knowledge of genetics isn’t nearly good enough to affect someone’s life like this. Allowing employers to discriminate in this fashion puts a huge burden on society,” Greenberg said.
Workers’ compensation is “a no-fault system,” Greenberg said. Employers cover medical costs and a percentage of lost wages for work-related injuries, and employees give up their right to sue.
Employers must insure employees in all states except Texas.
Without a specific ban against its use, employers may argue that an employee’s genetic predisposition for a disorder disqualifies the claim as work- related, limiting or eliminating the employer’s responsibility, Greenberg said.
Denying workers’ compensation claims because of genetic probability “screws society as a whole,” Greenberg said.
Through lost wages and medical costs, people may become dependent on social services, he said.
“Basically the taxpayers will pay. Workers’ compensation is about getting people back to work.”
Fulton also introduced the bill last year, but it died in committee.
“People didn’t really know what the bill did,” Fulton said, adding that the idea is very new. “It’s an uphill battle when people don’t know.”
Interim hearings on the bill, he said, “decreased the fear factor,” giving the bill a better chance of passing this year.