Medical examinations of future and present employees are commonly required by Canadian employers to verify a person’s capacity to do the work. However, Since May 2017, however, federally regulated employers can no longer require that future and present employees undergo genetic testing or disclose the results to determine, for example, whether they will be able to do their work in the future.
Indeed, last May, an Act to prohibit and prevent genetic discrimination (S.C. 2017) otherwise known as the Genetic Non-Discrimination Act came into force. The objective of the Act is to protect persons who suffer from genetic disorders or are genetically predisposed to certain diseases from discrimination, including in their employment. The Act implements three significant legislative modifications. It introduces:
- New legislation that prohibits the requirement for an individual to undergo genetic testing in various circumstances;
- Amendments to the Canada Labour Code by adding specific prohibitions against genetic testing in employment; and
- Amendments to the Canadian Human Rights Act by adding genetic characteristics as a prohibited ground of discrimination, including in employment.
Genetic Non-Discrimination Act
The primary rule established by the Act is the general prohibition against requiring individuals to undergo a genetic test as a condition for “providing goods or services,” “entering or continuing a contract or agreement,” or “offering or continuing specific terms or conditions in a contract or agreement” (s. 3).
Furthermore, should individuals undergo a genetic test, they cannot be forced to disclose its results nor can they face reprisals for not disclosing them. Since it is not specifically provided for in the Act, these general prohibitions could be interpreted as applying to employment contracts and agreements.
Consequences for noncompliance are significant. Violators face fines of up to $1 million and may even face a maximum jail sentence of five years.
Amendments to the Canada Labour Code
To further reflect these contractual prohibitions in an employment context, the Canada Labour Code has also been modified by rendering it illegal for employers to require their employees to undergo a genetic test or to require them to disclose their results. It is also now illegal for employers to impose any disciplinary measure in the event that an employee refuses to undergo or disclose the results of a genetic test.
Should an employer do otherwise, employees may file a complaint with an inspector and have their complaint referred to an adjudicator who may order the retraction of a disciplinary measure, the reinstatement of the employee, or impose any other remedy that it deems appropriate.
Amendments to the Canadian Human Rights Act
The Act has also led to important amendments in the Canadian Human Rights Act. Genetic characteristics are now considered to be one of the prohibited grounds of discrimination in the Canadian Human Rights Act.
This means that over and above the recourses available to employees in the Act and in the amendments to the Canada Labour Code, employers can now also be the subject of a complaint to the Canadian Human Rights Commission if they discriminate against a future or current employee based on genetic characteristics.
These modifications will have an important impact on federally regulated employers to whom these laws apply. Therefore, federally regulated employers that require future or current employees to undergo a genetic test or rely upon the results of these tests to make hiring or employment-related decisions should alter their practices.
That being said, the constitutionality of parts of the Act will be challenged. The Québec government has already announced that it intends to challenge the constitutionality of parts of the Act at the Quebec Court of Appeal by claiming that they impede on the province’s jurisdiction over civil and property rights.
However, it will not contest the amendments to the Canada Labour Code and the Canadian Human Rights Act that apply only to federally regulated employers. In the meantime, the Act as a whole remains in force.
We will keep you informed of any developments in regard to this Act.