Originally created 04/21/01

Minn. tackles genetic testing in workplace



MINNEAPOLIS - Robert Damyanovich didn't ask to be a prime example for the argument that Minnesota needs tougher restrictions on genetic testing at work.

The railroad worker from Nashwauk, Minn., didn't even know until February that Burlington Northern Santa Fe Railroad had tested the DNA of employees like him who blamed wrist problems on their jobs. But Damyanovich favors a bill awaiting action by the Minnesota Legislature.

It would bar employers from requiring workers to undergo such genetic tests.

"The test really was an invasion of my privacy," he said. "It's an issue of my family's privacy, too. They have taken my family tree. I don't need the railroad to tell me about what might happen to my kids or to my father and mother."

The bill's supporters say that genetic testing creates a major civil rights issue by opening questions of who should have access to information encoded in a person's cells and whether that information can justify hiring or benefits decisions.

But national groups representing employers and health insurers argue that worries about genetic privacy are overblown because discrimination hasn't been a problem. They oppose a similar bill that is stalled in Congress, arguing that new laws would impose unnecessary and costly burdens on their industries.

The Minnesota Chamber of Commerce is neutral about the basic thrust of the state bill, although it has some concerns about possible penalties, said Tom Hesse, who directs the chamber's labor management policy.

The science of genetic testing is so new that many employers haven't sorted through the implications, Hesse said, and some companies welcome limitations.

The Burlington Northern case has served as Exhibit A in discussions of the Minnesota bill.

For Damyanovich, 49, it started in 1999 when his hands were so numb they "seemed to go dead" at times. It was carpal tunnel syndrome, which he blamed on 27 years of pounding on tracks and handling vibrating equipment.

Damyanovich said that after he filed a claim with Burlington Northern and had surgery on his left hand, he received a certified letter from the railroad's headquarters in Fort Worth, Texas, ordering him to undergo additional medical tests.

At the testing lab in October, he said, "The gal kept pumping the blood out of me - seven vials of blood. ... I told my wife, 'Something's wrong. Nobody takes that much blood unless they are up to something."'

Four months later, he learned what was happening. On Feb. 9, the U.S. Equal Employment Opportunity Commission said that Burlington Northern was conducting genetic testing in violation of the Americans with Disabilities Act. The EEOC asked a federal court to put a stop to it.

Burlington Northern acknowledged that it had collected DNA from employees with carpal tunnel problems as part of an evaluation of injury claims. A study had suggested that genes may be a factor in some carpal tunnel cases. The company voluntarily suspended the program and apologized to employees.

Recently attorneys for Burlington Northern and the EEOC met to begin negotiating a court-supervised termination of the testing program, said Laurie Vasichek, an EEOC attorney in Minneapolis. The EEOC is investigating possible further legal action, she said.

Meanwhile, Burlington Northern agreed in a settlement with two unions on April 5 that genetic screening is subject to negotiations under the Railway Labor Act. The Brotherhood of Maintenance of Way Employees and the International Brotherhood of Locomotive Engineers also had sued the railroad.

The agreement also requires Burlington Northern to "acknowledge the need for national legislation limiting the use of genetic screening in employment decisions" and to lobby for passage of the bill that is before Congress.

Meanwhile, states aren't waiting for Congress to act. Twenty-two states prohibit discrimination in the workplace based on the results of genetic tests, according to the National Conference of State Legislatures.

Minnesota's move to join that trend has cleared all of the required committees with little opposition and is in line for final votes.

Under the bills, companies couldn't force workers to take genetic tests. If employees voluntarily submitted to a genetic test, the results couldn't be used for decisions about hiring, firing and promotions or demotions.