27 June 2023

Is an employer allowed to require genetic testing?

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  • Health / Life Sciences

An overview of the most important provisions concerning genetic tests in the employment relationship.


Adjustments to the rules on human genetic testing

The revised provisions of the Federal Act on Human Genetic Testing (HGTA) as well as the ordinance and subsidiary decrees have been in force since 1 December 2022. This has led to various changes (cf. the other magazine articles on this topic).

The amendments regarding genetic testing in employment are not substantial. Employers may continue to demand the performance of genetic tests and the disclosure of already existing genetic data only in certain cases. In practice, these possibilities have seemingly not yet been used.

The permissible scope of employers is determined on the one hand by the HGTA and on the other hand by the Code of Obligations (CO).

The requirements of the CO and HGTA regarding genetic tests in employment relationships

Starting point: pursuant to Art. 328b CO, genetic information and data may only be collected and handled in the context of employment negotiations or during an employment relationship to the extent that they relate to the suitability for the specific employment relationship.[1]

The HGTA incorporates this requirement of Art. 328b CO. According to this, genetic tests initiated in connection with an employment relationship may only be carried out to clarify medical properties that are relevant at the workplace (Art. 38 HGTA). However, the HGTA restricts the scope of application of genetic tests to the extent that employers are prohibited from requesting that genetic tests be carried out outside the medical fieldas well as from asking for or exploiting genetic data that is not medically relevant (Art. 37 HGTA).

Moreover, the HGTA fundamentally prohibits presymptomatic genetic tests as well as the disclosure or utilisation of genetic data which originate from earlier presymptomatic genetic tests. Presymptomatic test are tests whose purpose is to identify predisposition to disease before clinical symptoms emerge. Exceptionally, presymptomatic genetic tests are permitted for the prevention of occupational diseases and accidents if specific conditions are fulfilled (Art. 40 HGTA).

What applies in the event of a breach of the requirements under the CO and HGTA?

If the employer processes genetic data that does not meet the requirements of the CO and HGTA, he is basically acting in a way that violates personal rights. In this case, the employee can take civil action against the employer. The employee has contractual, personal and data law options. Non-compliance with the provisions of the HGTA is also subject to criminal law. Intentional offences are punishable by custodial sentence of up to three years or a monetary penalty (Art. 56 para. 1 HGTA).

Our health and labour law experts will be happy to assist you with questions on these topics. We look forward to hearing from you.

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[1]       BBl 2017 5706.