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Omics is increasingly useful for many diseases, including asthma, Donovan, B.M. et al., “The Current States of Omics Technologies in the Clinical Management of Asthma and Allergic Diseases,” The Current States of Omics Technologies in the Clinical Management of Asthma and Allergic Diseases, 123, no. 6 (2019): 550–557; breast cancer, G. Judes et al., “High-Throughput ‘Omics’ Technologies: New Tools for Triple-Negative Breast Cancer,” Cancer Letters 382, no. 1 (2016): 77-85; and hypertension, Currie, G. and Delles, C., “The Future of ‘Omics” in Hypertension,” Canadian Journal of Cardiology 33, no. 5 (2017): 601-610.Google Scholar

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Rothstein, M.A., “Ethical Issues in Big Data Health Research,” Ethical Issues in Big Data Health Research, 43, no. 2 (2015): 425–429. See also Areheart, B.A. and Roberts, J.L., “GINA, Big Data, and the Future of Employee Privacy,” Yale Law Journal 128, no. 3 (2019): 710-790.Google Scholar

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See Rothstein, M.A., “The End of the HIPAA Privacy Rule?” The End of the HIPAA Privacy Rule? 44, no. 2 (2016): 352–358. See also Rothstein, M.A. and Tovino, S.A., “Privacy Risks of Interoperable Electronic Health Records: Segmentation of Sensitive Information Will Help,” Journal of Law, Medicine & Ethics 47, no. 4 (2019): 771-777.Google ScholarPubMed

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See Rothstein, M.A., Medical Screening of Workers (Washington, DC: BNA Books, 1984).Google Scholar

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Presenteeism refers to a situation where employees are physically at work, but they are unable to perform their duties adequately because of illness or injury. See Hemp, P., “Presenteeism: At Work – But Out of It,” Presenteeism: At Work – But Out of It, 82, no. 10 (2004): 49–58.Google Scholar

Discrimination against individuals because of increased health care costs would violate the Affordable Care Act and the Americans with Disabilities Act. See Roberts, J.L., “Healthism and the Law of Employment Discrimination,” Healthism and the Law of Employment Discrimination, 99, no. 2 (2014): 571–635.Google Scholar

Impaired employees are more likely to be involved in accidents causing injury to themselves or co-employees.Google Scholar

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See Hoffman, S., “Big Data and the Americans with Disabilities Act,” Hastings Law Journal 68, no. 4 (2017): 777–793, 780-784.Google Scholar

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29 U.S.C. §§ 701-796. The Rehabilitation Act applies to federal agencies (§ 501), federal government contractors (§ 503), and recipients of federal financial assistance (§ 504).Google Scholar

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Although the defendant's rationale clearly implicates the “direct threat” language of the ADA, see Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002), it is not clear that medical evidence would substantiate the fear of sudden incapacitation. Nevertheless, other cases have decided the “future risk” issue without the need to assert sudden incapacitation. See the cases cited in notes 39-40 infra.Google Scholar

Richardson v. Chicago Transit Authority, 926 F.3d 881 (7th Cir. 2019). ADA coverage for obesity remains unresolved, but some state disability discrimination statutes clearly apply to individuals with obesity. See Taylor v. Burlington Northern Railroad Holdings, Inc., 444 P.3d 606, 608 (Wash. 2019) (“obesity always qualifies as an impairment” under Washington law).Google Scholar

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See supra note 48 (discussing gaps in coverage of GINA and the ADA).Google Scholar

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GINA was enacted so that individuals would not be reluctant to undergo genetic testing, participate in genetic research, or avail themselves of genetic services. GINA § 2(5), 42 U.S.C. § 2000ff note. See Roberts, J.L., “Preempting Discrimination: Lessons from the Genetic Information Nondiscrimination Act,” Preempting Discrimination: Lessons from the Genetic Information Nondiscrimination Act, 63, no. 2 (2010): 439–490.Google Scholar

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See Rothstein, M.A., “Genetics and the Workforce of the Next Hundred Years,” Genetics and the Workforce of the Next Hundred Years, 3, no. 3 (2000): 371–402 (proposing optional, confidential genetic testing and monitoring at both the preplacement and periodic stages of employment).Google Scholar

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See 29 C.F.R. § 1630.2(i) (defining major life activities).Google Scholar

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Pregnant women are not entitled to reasonable accommodation under Title VII. Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015). See Hébert, L.C., “Disparate Impact and Pregnancy: Title VII's Other Accommodation Requirement,” Disparate Impact and Pregnancy: Title VII's Other Accommodation Requirement, 24, no. 1 (2015): 107–173.Google Scholar

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Another way of broadening the coverage of the ADA to include future health risks while also providing for reasonable accommodation is to amend section 3(2) of the ADA by adding a fourth prong to the definition of disability: “(D) having a risk of a future physical or mental impairment that would substantially limit one or more of the major life activities of such individual, having a record of such a risk, or being regarded as having such a risk.” See Rothstein, M.A., “Genetic Secrets: A Policy Framework,” Genetic Secrets: Protecting Privacy and Confidentiality in the Genetic Era, Rothstein, M.A., ed. (New Haven: Yale University Press, 1997): 451–495, 477.Google Scholar

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This provision would not apply to seasonal or temporary employment, and thus an employer might be required to hire short-term employees with more immediate future impairments. On the other extreme, the six-month rule should be a presumption that can be rebutted by an employer upon a showing that the job requirement (e.g., one-year stay at a remote location) or training period (during which time the individual is unable to obtain certification or make significant contributions to the enterprise) extends beyond six months.Google Scholar

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For example, GINA defines a genetic test as “an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations, or chromosomal changes.” 42 U.S.C. § 2000ff(7)(A). By focusing on “DNA and RNA” it omits epigenetic testing, see Rothstein, M.A., “Epigenetic Exceptionalism,” Journal of Law, Medicine & Ethics 41, no. 3 (2013): 733–736, and by limiting coverage to “human” DNA and RNA, excludes microbiome testing, see Schlaberg, R., “Microbiome Diagnostics,” Clinical Chemistry 66, no. 1 (2020): 68-76.CrossRefGoogle ScholarPubMed

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State laws prohibiting discrimination on the basis of disability or genetic information generally follow the framework of federal legislation and therefore ought to be amended in a similar fashion.Google Scholar