GENE-ANALYTICAL EXAMINATION AS A PRECONDITION OF EMPLOYMENT?
Last December, the German Federal Ministry of Labour and Social Affairs presented a draft bill on "safety and health protection in work". The draft became known to the public only months later. The law aims at the implementation of three EC directives through 59 paragraphs. Quite incidentally, the draft further provides for the admissibility of so-called "preventive" gene-analytical examinations of employees.
According to the draft such examinations are permitted, provided the persons concerned have been informed about job-related health risks and about the examination as a such, as well as on condition that a "legal regulation" allows the examination. The physician carrying out the "preventive examination" may use the gene test for other purposes if a legal regulation allows this.
The employer is informed about the result of the examination, even against the will of the employee concerned. If and when the gene-analysis gives rise to doubts regarding job-related health risks for a particular employee that can not be eliminated by the improvment of work protection measures, this can lead to an interdiction of employment. In this case the employer is bound to offer another suitable job only if "no urgent operational reasons are opposed to this".
On request, the bodies responsible of the obligatory accident insurance, of work protection, and of the obligatory health insurance must be informed about all elements of the examination.
In the view of the Deutsche Vereinigung für Datenschutz (DVD: German Association for Data Protection) and of IKÖ, an institute of informational and communicational ecology, the planned provisions constitute a blatant breach of the the right of "informational self-determination" guaranteed by the German constitution.
According to the institutions above, this guarantee also includes the "right not to know" ones own genetical predisposition. Nobody should be forced by law, contract, or factual constraint to learn or reveal his genetical predisposition.
The code of human genes is not just a simple person-related data, nor is it an information protected by medical secrecy.
According to DVD, the particular sensitivity of genetical data lies in that
- they are inherited "fate", i.e. they can not be influenced by human will;
- using these data results in a selection of human beings opening the way for inhuman objectives not excepting eugenics;
- the uncontrolable exchange of genetical information will be difficult to prevent, once it has left the reach of the person concerned;
- the knowledge of these data does not result in a better quality of life, but in the contrary bears the risk of limiting the individual choice of behaviour to an extent that this leads to existential fear and psychosomatical health disturbances.
DVD and IKÖ further stress that by introducing mandatory genetical examinations the risk of illness is shifted off on the individual, i.e. the cause of illness is no longer seen in (work-)environmental strains, but in the individual genetical predispositions of persons. "Gene-technological examinations do not lead to the abolition of health endangering work places but to the adaption of the "production factor man" to inhuman working conditions. Gene technology is to make possible employment of healthy people in unhealthy jobs", DVD says and stresses that considering the societal proportion of forces gene-analytical examinations can but lead to genetically based stigmatisation of people.
DVD also fears that the draft bill might create a precedent for other domains of society: thus, health insurance companies could soon require "health security clearances" based on gene-analysis, before concluding a contract.
Finally, DVD criticises the draft's general clause character. Indeed, the draft bill allows genetical examination if and when a "legal regulation" (Rechtsvor-schrift) provides for it. This means that the concrete admissibility of examinations will not be defined by the law but by provisions e.g. in administrative ordinances, industrial agreements municipal statutes, etc.
Source: Stellungnahme zum Entwurf eines Arbeitsschutzrahmengesetzes, Deutsche Vereinigung für Datenschutz, 23.6.93, 7 p., in German. Contact: Thilo Weichert, Deutsche Vereinigung für Datenschutz e.V., Reuterstr.44, D-53113 Bonn, Tel:+49/228 222498; Jan Kuhlmann, Institut für Informations- und Kommunikationsökologie, Bremen University, FB 03, Postfach 330440, D-2800 Bremen 33, Tel: +49/421 2182833, Fax: +49/421 2183308Comment
In FECL No.12 Dr. Jan Holvast, director of the Dutch foundation for data protection, Waakzaamheid Persoonregistratie , wrote: "From a trust-based society we are moving to a society based on distrust. Everybody is seen as a potential defrauder, criminal or illegal alien... From a constitutional state, the Netherlands are developing towards a control state in which fundamental constitutional rights are reversed. The burden of proof will be reversed and the principle of self-incrimination will be accepted. Legal means will tend to be used for control..."
The German example above indeed shows that Holvast's observations apply not only to the Netherlands. All over Europe, the shift from the constitutional state to the control state is becoming obvious. While the process first appeared to be limited to the control of marginalised societal groups as, for instance, refugees, immigrants, drug and other delinquents and political extremists, it is now rapidly spreading into other domains as general procedural legislation, social assistance and health policies. Ever more, it will be up to the individual to prove that he is not a criminal or defrauder, that he is healthy, fit, and able to comply to the "normal standards of behaviour" required for being a useful and profitable gear in the machinery of the system. Bad times to come for the sick, he handicapped and other "deviant" people.
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