Division XV.3Genetic Testing

Marginal note:Definitions

• 247.98 (1) The following definitions apply in this Division.

  disclose

  disclose includes to authorize disclosure. (communiquer)

  genetic test

  genetic test, in relation to an employee, means a test that analyzes the employee’s DNA, RNA or chromosomes for purposes such as the prediction of disease or vertical transmission risks, or monitoring, diagnosis or prognosis. (test génétique)

• Marginal note:Genetic test

  (2) Every employee is entitled not to undergo or be required to undergo a genetic test.

• Marginal note:Disclosure of results

  (3) Every employee is entitled not to disclose or be required to disclose the results of a genetic test.

• Marginal note:Disciplinary action

  (4) No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period that the employee would, but for the exercise of the employee’s rights under this Division, have worked, or take any disciplinary action against or threaten to take any such action against an employee

  • (a) because the employee refused a request by the employer to undergo a genetic test;

  • (b) because the employee refused to disclose the results of a genetic test; or

  • (c) on the basis of the results of a genetic test undergone by the employee.

• Marginal note:Disclosure by third party

  (5) No person shall disclose to an employer that an employee has undergone a genetic test, or disclose to an employer the results of a genetic test, without the written consent of the employee.

• Marginal note:Collection or use

  (6) No employer shall collect or use the results of a genetic test without the written consent of the employee who has undergone the test.

Marginal note:Complaint to inspector

• 247.99 (1) An employee who alleges that an employer has taken action against the employee in contravention of subsection 247.98(4) may make a complaint in writing to an inspector.

• Marginal note:Time for making complaint

  (2) Subject to subsection (3), the complaint shall be made to the inspector not later than 90 days after the date on which the complainant knew, or in the inspector’s opinion ought to have known, of the action or circumstances giving rise to the complaint.

• Marginal note:Extension of time

  (3) The Minister may extend the period of time referred to in subsection (2) if the Minister is satisfied that a complaint was made in that period to a government official who had no authority to deal with the complaint but that the employee making the complaint believed the official had that authority.

• Marginal note:Inspector to assist parties

  (4) On receipt of a complaint made under subsection (1), an inspector shall endeavour to assist the parties to the complaint to settle the complaint or cause another inspector to do so.

• Marginal note:Where complaint not settled within reasonable time

  (5) Where a complaint is not settled under subsection (4) within such period as the inspector endeavouring to assist the parties pursuant to that subsection considers to be reasonable in the circumstances, the inspector shall, on the written request of the employee who made the complaint that the complaint be referred to an adjudicator under subsection (6),

  • (a) report to the Minister that the endeavour to assist the parties to settle the complaint has not succeeded; and

  • (b) deliver to the Minister the complaint made under subsection (1) and any other statements or documents the inspector has that relate to the complaint.

• Marginal note:Reference to adjudicator

  (6) The Minister may, on receipt of a report pursuant to subsection (5), appoint any person that the Minister considers appropriate as an adjudicator to hear and adjudicate on the complaint in respect of which the report was made, and refer the complaint to the adjudicator.

• Marginal note:Decision of adjudicator

  (7) An adjudicator to whom a complaint has been referred under subsection (6) shall

  • (a) consider whether the employer has contravened subsection 247.98(4) and render a decision on it; and

  • (b) send a copy of the decision with the reasons for the decision to each party to the complaint and to the Minister.

• Marginal note:Orders

  (8) If an adjudicator decides pursuant to subsection (7) that an employer has contravened subsection 247.98(4), the adjudicator may, by order, require the employer to cease contravening that subsection and may, if applicable, by order, require the employer to

  • (a) permit the employee to return to the duties of their employment;

  • (b) reinstate the former employee;

  • (c) pay to the employee or former employee compensation not exceeding the sum that, in the adjudicator’s opinion, is equivalent to the remuneration that would, but for the contravention, have been paid by the employer to the employee or former employee;

  • (d) rescind any disciplinary action taken in respect of the contravention and pay compensation to the employee, not exceeding the sum that, in the adjudicator’s opinion, is equivalent to any financial or other penalty imposed on the employee by the employer; and

  • (e) do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequences of the contravention.

• Marginal note:Application of provisions

  (9) Subsection 242(2) applies to a complaint that has been referred to an adjudicator under subsection (6), sections 243 and 244 apply to an order of an adjudicator under subsection (8), and subsection 246(1) applies to an employee who makes a complaint under subsection (1), with any necessary modifications.