1 See OFFICE OF TECH. ASSESSMENT, U.S. CONG., GENETIC MONITORING AND SCREENING IN THE WORKPLACE 3 (1990) [hereinafter OTA 1990 REPORT] (“[G]enetic testing of employee populations involves both examining persons for evidence of induced change in their genetic material (monitoring) and identifying individuals with particular inherited traits or disorders (screening).“).

2 Atherley, , Human Rights Versus Occupational Medicine, 13 INT'L J. HEALTH SERVS. 265, 268, 269, 270 (1983)Google Scholar. A survey of industrial health care by the National Institute for Occupational Safety and Health (NIOSH) found that 49% of employees undergo some type of placement physicals and that 78% work in plants that record information on new employees’ health. Pettee, Industrial Health Records, in H. SCHUCHMAN, L. FOSTER, S. NYE, E. BROWN, J. GUTMAN, R. LANMAN & S. PETEE, CONFIDENTIALITY OF HEALTH & SOCIAL SERVICES RECORDS: THE MEETING OF LAW, ETHICS & CLINICAL ISSUES 141, 143 (1982) [hereinafter CONFIDENTIALITY OF HEALTH RECORDS].

3 Atherley, supra note 2, at 270.

4 Id. at 266, 273; OTA 1990 REPORT, supra note 1, at 4.

5 OTA 1990 REPORT, supra note 1, at 4.

6 Id. at 130.

7 See id. at 55-190 (providing general information about the medical procedures available to employers and the policy issues the procedures raise).

8 Id. at 22.

9 See id. at 41, 86 (citing Stokinger, & Scheel, , Hypersusceptibility and Genetic Problems in Occupational Medicine— A Consensus Report, 15 J. OCCUPATIONAL MED. 564 (1973)Google Scholar).

10 OTA 1990 REPORT, supra note 1, at 14.

11 Turkington, , Legal Protection for the Confidentiality of Health Care Information in Pennsylvania: Patient and Client Access; Testimonial Privileges; Damage Recovery for Unauthorized Extra-Legal Disclosure, 32 VILLANOVA L. REV. 259, 269-70 (1987)Google Scholar.

12 Recognition of the sensitivity of genetic information led to the introduction of a bill in the U.S. Congress “to safeguard individual privacy of genetic information from the misuse of records maintained by agencies … for the purpose of research, diagnosis, treatment, or identification of genetic disorders.” The bill also provided “individuals access to records concerning their genome which are maintained by agencies for any purpose.” Human Genome Privacy Act, H.R. 5612, 101st Cong., 2d Sess. (1990), 136 CONG. REC. H7623, H7624 (daily ed. Sept. 13, 1991). The bill died in committee.

13 See P. Billings, M. Kohn, M. de Cuevas & J. Beckwith, Genetic Discrimination as a Consequence of Genetic Screening 20-21 (Oct. 24, 1990) (unpublished manuscript), to be published in AM. J. HUM. GENETICS (1991).

14 See infra notes 17-37 and accompanying text.

15 See infra text accompanying notes 38-41.

16 See infra text accompanying notes 45-53.

17 The Hippocratic Oath is taken by each physician entering the medical profession. Since the fourth century B.C., physicians have pledged to respect the confidence of their patients: “And whatsoever I shall see or hear in the course of my profession, as well as outside my profession in my intercourse with men, if it be what should not be published abroad, I will never divulge, holding such things to be holy secrets.” 1 HIPPOCRATES 164-65 (W. Jones trans. 1923), reprinted in ETHICS IN MEDICINE: HISTORICAL PERSPECTIVES AND CONTEMPORARY CONCERNS 5 (S. Reiser, A. Dyck & W. Curran eds. 1977).

18 See, e.g., AMERICAN MED. ASS'N, CURRENT OPINIONS OF THE JUDICIAL COUNCIL OF THE AMERICAN MEDICAL ASSOCIATION 19 (1984) (The physician should not reveal confidential communications without the consent of the patient, unless legally compelled to do so.); see also Gellman, , Prescribing Privacy: The Uncertain Role of the Physician in the Protection of Privacy, 62 N.C.L. REV. 255 (1984)Google Scholar; J. GUTMAN, Access, in CONFIDENTIALITY OF HEALTH RECORDS, supra note 2, at 31, 36; Kobrin, , Confidentiality of Genetic Information, 30 UCLA L. REV. 1283 (1983)Google Scholar; Winslade, , Confidentiality of Medical Records, 3 J. LEGAL MED. 497 (1982)Google Scholar. All of these articles discuss the physician's dilemma of whether or not to disclose confidential information to third parties.

19 8 J. WIGMORE, EVIDENCE § 2380, at 818-19 (J. McNaughton rev. ed. 1961). Early English law indicated that neither a voluntary vow of secrecy nor the privacy of the relation alone were sufficient to establish a privileged communication.

20 8 J. WIGMORE, supra note 19, § 2380, at 818. See Quarles v. Sutherland, 215 Tenn. 651, 389 S.W.2d 249 (1965) (physicians’ ethical requirement of confidentiality not enforceable by law).

21 Collins v. Howard, 156 F. Supp. 322 (S.D. Ga. 1957).

22 Id. at 324.

23 See, e.g., Hammonds v. Aetna Casualty & Sur. Co., 243 F. Supp. 793, 796 (N.D. Ohio 1966) (“Modern public policy, not the archaic whims of common law, demands that doctors obey their implied promise of secrecy.“); Home v. Patton, 291 Ala. 701, 706, 287 So. 2d 824, 826 (1973) (basing doctors’ duty of confidentiality on the Hippocratic Oath, and “common custom and practice“); Simonsen v. Swenson, 104 Neb. 224, 177 N.W. 831 (1920); Hague v. Williams, 37 N.J. 328, 336, 181 A.2d 345, 349 (1962) (dictum); Nationwide Mut. Ins. Co. v. Jackson, 10 Ohio App. 2d 137, 140, 226 N.E.2d 760, 767 (1967) (enforcing confidentiality because full disclosure between patient and doctor is preferable); see also supra notes 17 (containing the relevant portion of the Hippocratic Oath) & 18 (citing the American Medical Association Code of Ethics).

24 See, e.g, Hague, 37 N.J. at 335, 181 A.2d at 348 (dictum). In 1968, New Jersey created by statute its current physician-patient privilege. NJ. STAT. ANN. § 2A:84A-22.1 - 22.9 (West 1986). Note, however, that the statute would not have changed the result in Hague because, in that case, parents waived confidentiality by filing an insurance claim. Hague, 37 N.J. at 336-37, 181 A.2d at 349. In a case decided after the adoption of the statute, the New Jersey Superior Court quoted Hague's language with approval and reversed a trial court's decision to keep out evidence obtained from non-adversarial interviews with the plaintiff's physician. Lazorick v. Brown, 195 N.J. Super. 444, 451, 480 A.2d 223, 227 (App. Div. 1984).

25 See, e.g., Simonsen, 104 Neb. at 224, 177 N.W. at 831. Under testimonial privilege statutes, physicians are not permitted to testify in court about a patient's condition unless the patient has either consented to the testimony or waived his or her right to consent. E.g., N.J. STAT. ANN. § 2A:84A-22.2 (West 1986) (a patient may invoke the privilege if the judge finds the communication was confidential, and “the patient or the physician reasonably believed the communication to be necessary or helpful to enable the physician to make a diagnosis … or to prescribe or render treatment“); see Turkington, supra note 11, at 312. Numerous cases have based a duty not to disclose on the existence of a state testimonial privilege statute.

The only states that do not have testimonial privilege statutes regarding physicians and relapatients are Alabama, Connecticut, Florida, Kentucky, Maryland, New Mexico and South Carolina. However, even these states might recognize the privilege on a common law basis. See, e.g.. International Tel. & Tel. Corp. v. United Tel. Co. of Fla., 60 F.R.D. 177 (M.D. Fla. 1973) (outlining how privileges are generally established); see also supra note 23 (listing cases in which courts created a common law privilege for public policy reasons).

26 Twenty-one states protect the relationship between a patient and his or her physician by providing that the disclosure of confidential information by the physician is a ground for revocation of the medical license or a basis for other disciplinary action. ARIZ. REV. STAT. ANN. §§ 32-1401 (20)(b), -1451 (Supp. 1990); ARK. STAT. ANN. § 17-93-409(15) (1987); CAL. Bus. & PROF. CODE §§ 2227, 2228 (West Supp. 1991) & 2263 (West Supp. 1990); DEL. CODE ANN. tit. 24, § 1731(a), (b)(12) (1987); IDAHO CODE § 54-1814(13) (1988); III. ANN. STAT. ch. III, para. 4400-22(A)(30) (Smith-Hurd Supp. 1990); KAN. STAT. ANN. § 65.2836(c) (Supp. 1989); KY. REV. STAT. ANN. § 311-595 (Baldwin Supp. 1990); ME. REV. STAT. ANN. tit. 32, § 3282-A(2) (Supp. 1990); MICH. COMP. LAWS ANN. § 333.16221(e)(ii) (West Supp. 1990); MINN. STAT. ANN. § 147-091(l)(m) (West 1989); NEB. REV. STAT. §§ 71-147(10), 71-148(9) (1990); NEV. REV. STAT. ANN. § 630-3065(1) (1989); N.M. STAT. ANN. § 61-6-15(D)(5) (1989); N.D. CENT. CODE § 43-17-31(13) (Supp. 1990); OHIO REV. CODE ANN. § 4731.22(B)(4) (Baldwin 1987); OKLA. STAT. ANN. tit. 59, §§ 503, 509(4) (West 1989); OR. REV. STAT. § 677.190(5) (1989); S.D. CODIFIED LAWS ANN. §§ 36-4-29 (1986) & 36-4-30(4) (Supp. 1990); TENN. CODE ANN. § 63-1-120(15) (1990); UTAH CODE ANN. §§ 58-12-35(l)(a), 56-12-36(3) (1990). The Virginia law has an exception that may be relevant in some instances to the disclosure of information about an individual's genetic status. In Virginia, physicians may not be subject to disciplinary action for communicating to state agencies the identity of “any person under age twenty-two who has a physical or mental handicapping condition.” VA. CODE ANN. § 54-276.11 (1982).

Of these 21 states, 15 punish only willful or intentional disclosures. Arizona, supra; Arkansas, supra; CAL. BUS. & PROF. CODE § 2263, supra; DEL. CODE ANN. tit. 24, § 1731(b) (12) (1981); KAN. STAT. ANN. § 65-2837(b)(6) (1985); KY. REV. STAT. ANN. § 311-595(15); ME. REV. STAT. ANN. tit. 32, § 3282-A(2)(f); Minnesota, supra; NEB. REV. STAT. § 71-148(9); Nevada, supra; Ohio, supra; OKLA. STAT. ANN. tit. 59, § 509(4); S.D. CODIFIED LAWS ANN. § 36-4-30(4) (Supp. 1990); Tennessee, supra; UTAH CODE ANN. § 58-12-36(3) (1990). Four other states provide that negligent disclosure as well as willful disclosure is a ground for discipline. Illinois, supra; New Mexico, supra; North Dakota, supra; Oregon, supra. The remaining two states do not differentiate between degrees of violation of confidence. Idaho, supra; Michigan, supra. These types of statutes, too, have been used by courts as the basis for recognizing a duty not to disclose. See, e.g., Hammonds, 243 F. Supp. at 793.

27 See PROSSER AND KEETON ON THE LAW OF TORTS 856-63 ((D. Dobbs, R. Keeton, W. Keeton & D. Owen eds. 1984 & Supp. 1988) [hereinafter-PROSSER & KEETON]; see also Newman, , Privacy in Personal Medical Information: A Diagnosis, 33 U. FLA. L. REV. 394 (1981)Google Scholar. As of 1981 the tort of invasion of privacy had been rejected only in Rhode Island, Nebraska and Wisconsin. Newman, supra, at 403 n.60. However, all three of these states now recognize it by statute. R.I. GEN. LAWS § 9-1-28.1 (1985); NEB. REV. STAT. § 20-201 (1987); Wis. STAT. ANN. § 895.50 (West 1987).

28 See Hammonds, 243 F. Supp. at 793; Home v. Patton, 291 Ala. 701, 287 So. 2d 824 (1973).

29 Hammonds, 243 F. Supp. at 801.

30 MacDonald v. Clinger, 84 A.D.2d 482, 485, 444 N.Y.S.2d 801, 804 (1982) (quoting Doe v. Roe, 93 Misc. 2d 201, 210, 400 N.Y.S.2d 668, 674 (1977)). Contract remedies, such as compensation for damages or an injunction, may be used to enforce the condition of confidentiality.

31 Horne, 291 Ala. at 711, 287 So. 2d at 832.

32 But see Whalen v. Roe, 429 U.S. 589 (1976). In Whalen, the plaintiffs challenged a New York law requiring physicians prescribing certain drugs to report the drug name, dosage and pharmacy, and the patient's name, address and age to the State Department of Health. While the Court recognized the need to protect the privacy of the physician-patient relationship, it held that the particular disclosure requirement did not violate a patient's constitutionally protected privacy right because the information was securely stored, id. at 593-95, the information was not publicly disclosed and an individual was not deprived of the right to acquire and use the medication. Id. at 603. The Court recognized “the individual interests in avoiding disclosure of personal matters.” Id. at 599. However, the Court distinguished between an individual's interest in autonomy and an individual's interest in nondisclosure; the former clearly being protected by the federal Constitution, and the latter only “arguably” rooted in the Constitution. Id. at 605.

33 Sanderson v. Bryan, 361 Pa. Super. 491, 499, 522 A.2d 1138, 1142 (1987) (State Peer Review Protection Act violated by an order giving a plaintiff access to peer review information not directly related to his or her case).

34 Id. (citations omitted).

35 See id. at 499, 522 A.2d at 1142; see also In re The June 1979 Allegheny County Investigating Grand Jury, 490 Pa. 143, 148, 415 A.2d 73, 76-77 (1980); Peninsula Counseling Center v. Rahm, 105 Wash. 2d 929, 942-43, 719 P.2d 926, 932-33 (1986) (Pearson, J., dissenting) (the Washington Constitution privacy protections were broad enough to protect individual medical records from disclosure).

36 E.g., Ex parte Mack v. Beacon Light Clinic, 461 So. 2d 799, 801 (Ala. 1984); Sanderson, 361 Pa. Super, at 499, 522 A.2d at 1142.

37 E.g., CAL. CIV. CODE § 56.10 (West 1988); MONT. CODE ANN. § 50-16-525 (1987); R.I. GEN. LAWS §§ 5-37.3-1 to .3-11 (1987); Wis. STAT. ANN. § 146.82 (West 1987).

38 See infra notes 81-82 and accompanying text (discussing cases finding that occupational physicians were not in a physician-patient relationship with the employee).

39 See supra notes 27-36 and accompanying text (discussing the success of these claims against physicians).

40 See Schultz v. Owens-Ill., 560 F.2d 849 (7th Cir. 1977) (collective bargaining agreement granted employees “uniquely personal rights“), cert, denied, 434 U.S. 1011 (1978); see also 29 U.S.C. §§ 157, 158, 158(b), 159(a) (1988) (setting forth the rights and privileges of employees in the context of the employer-employee relationship).

41 See Comment, The Union's Right to Information at the Expense of Employees’ Privacy Rights, 15 U. TOL. L. REV. 755, 762 (1984) (describing how an employee might bring an after-the-fact privacy suit against an employer; questioning the desirability of such a suit).

42 AMERICAN OCCUPATIONAL MED. ASS'N, CODE OF ETHICAL CONDUCT (1976).

43 Id. at Principle 7.

44 See supra notes 17-18 and accompanying text.

45 CAL. CIV. CODE § 56.20(a)(c) (West 1982); CONN. GEN. STAT. ANN. § 31-128f (West 1987).

46 WIS. STAT. ANN. § 101.055(7)(a) (West 1988).

47 Id. at §§ 146.82, .83.

48 MONT. CODE ANN. § 50-16-101 (1987).

49 Id. at §50-16-502(4).

50 R.I. GEN. LAWS § 5-37.3-4(a) (1988).

51 CAL. CIV. CODE § 56.20 (West 1982); R.I. GEN. LAWS § 5-37.3-4(c) (1988).

52 CAL. CIV. CODE § 56.20(a).

53 R.I. GEN. LAWS § 5-37.3-4(c).

54 See infra notes 55-74.

55 See Rothstein, , Employee Selection Based on Susceptibility to Occupational Illness, 81 MICH. L. REV. 1379, 1473 (1983)Google Scholar.

56 See, e.g., Feeney v. Young, 191 A.D. 501, 181 N.Y.S. 481 (1920). In this case, the plaintiff had given her physician permission to film a Caesarean section operation which she was to undergo, with the understanding that such film would be exhibited to medical societies and in the interest of medical science. The pictures were exhibited publicly in leading theaters as part of a motion picture Birth. The woman was allowed to bring an action for breach of a statute prohibiting advertising the name or likeness of a person without her consent.

57 See infra text accompanying note 204 for an example of this practice.

58 See, e.g., Urseth v. City of Dayton, 653 F. Supp. 1057 (1986). Beyond the general common law rule to that effect, a statute in Minnesota specifically provides that medical data directly related to a claim for workers’ compensation may be released without prior approval to the employee, employer or insurer who are parties to the claim. MINN. STAT. ANN. § 176.138 (West Supp. 1991). Private medical data that is not directly related to a current disability or injury may not be released, and the party that does not treat properly-released data as private is guilty of a misdemeanor. Id. A Louisiana statute similarly mandates the release of health care information relevant to the employee's injury to the employee, employer or workers’ compensation insurer in a workers’ compensation claim. LA. REV. STAT. ANN. § 23:1127(A) (West 1988). Rhode Island's Confidentiality of Health Care Information Act also has an exception for information directly related to a current claim for workers’ compensation. R.I. GEN. LAWS § 5-37.3-4(b)(11) (1987).

59 See Gellman, supra note 18, at 274.

60 To give an example of the disabilities covered, in Wisconsin, a physician who believes that his or her patient's physical or mental condition affects the patient's ability to exercise reasonable and ordinary control over a motor vehicle may report the patient's name and other information relevant to the condition to the department of transportation without the informed consent of the patient. Wis. STAT. ANN. § 146.82(3) (West 1989). In Rhode Island there is an exception to the confidentiality statute allowing reporting of health care information on an individual to the central cancer registry. R.I. GEN. LAWS § 5-37.3-4(b)(18) (1987).

61 States are increasingly interested in employees’ medical status, especially if the individual seeks state reimbursement of health care costs. For example, a proposed Wisconsin regulation would require the physician to inform the state not only that an individual has HIV related illness, but that the individual's employment has been terminated because of the HIVrelated medical condition. Wis. ADMIN. CODE § HSS 138.04(2)(a)(6)(b) (proposed 1991).

62 Eight states establish mandatory registries by statute. FLA. STAT. ANN. § 411.203(9)(b) (West 1986); FLA. ADMIN. CODE ANN. r. 10J-8.007(2) (1990), & Guideline VH(b) (1981); IND. STAT. ANN. § 16-4-10-1 (Michie 1990); MICH. COMP. LAWS § 333.5721 (1990); NJ. STAT. § 26:8-40.22 (1989); VA. CODE ANN. § 32.1-69.1 (1990); WASH. REV. CODE § 70.58.320 (1990); W. VA. CODE § 16-5-12a (Michie 1990); Wis. STAT. § 146.028 (1987-88). The Iowa statute provides that the Birth Defects Institute may establish a registry. IOWA CODE ANN. § 136A.6 (West 1989). Three states establish registries by regulation. LOUISIANA DEP't OF HEALTH & HUM. SERVS., GUIDELINES: NEONATAL SCREENING, § III(F) (1988); MD. REGS. CODE tit. 10, § 10.38.11 (1975); MINN. R. 7.1.172(c)(2)(b) (1979).

63 FLA. ADMIN. CODE ANN. r. 10J-8.007 (1990); MICH. COMP. LAWS § 333.5721 (1990); VA. CODE ANN. § 32.1-69.1 (1990).

64 See Riskin, & Reilly, , Remedies for Improper Disclosure of Genetic Data, 8 RUT.-CAM. L.J. 480, 483 (1977)Google Scholar.

65 Simonsen v. Swenson, 104 Neb. 224, 177 N.W. 831 (1920). The court noted that “no patient can expect that if his malady is found to be of a dangerously contagious nature he can still require it to be kept secret from those to whom, if there was no diclosure, such disease would be transmitted.” Id. at 228, 177 N.W. at 832.

66 Id. at 228, 177 N.W. at 832.

67 Id.

68 Id.

69 Tarasoffv. Regents of Univ. of Cal., 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976).

70 Id. at 441, 551 P.2d at 347, 131 Cal. Rptr. at 27. The court reasoned that “[t]he protective privilege ends where the public peril begins.” Id. at 442, 551 P.2d at 347, 131 Cal. Rptr. at 27.

71 Id. at 442, 551 P.2d at 347, 131 Cal. Rptr. at 27.

72 Collins v. Howard, 156 F. Supp. 322 (S.D. Ga. 1957) (dictum).

73 Id. at 325.

74 Carr v. Watkins, 227 Md. 578, 177 A.2d 841 (1962) (where no privilege exists, an action for invasion of privacy based on oral communications may be maintained).

75 Emmett v. Eastern Dispensary & Casualty Hosp. 396 F.2d 931 (D.C. Cir. 1967); Cannell v. Medical & Surgical Clinic, 21 III. App. 3d 383, 315 N.E.2d 278 (1974) (describing the “fiducial qualities” of the physician-patient relationship).

76 See Sheets v. Burman, 322 F.2d 277, 279 (5th Cir. 1963) (where there is a fiduciary relationship, a physician's failure to disclose acts of malpractice constitutes a fraudulent concealment); Turkington, supra note 11, at 278 n.35 (arguing for a more comprehensive definition of rights and duties involved in patient-client access to health care information).

77 “ALASKA STAT. § 18.23.065 (1986); CAL. HEALTH & SAFETY CODE § 1795.12(a) (West 1990); COLO. REV. STAT. § 25-1-802(1)(a) (1989); CONN. GEN. STAT. § 20-7C(a) (1989); FLA. STAT. ANN. § 455.241(1) (West Supp. 1990); GA. CODE ANN. § 31-33-2(a) (1985); IND. CODE ANN. § 16-4-8-2(b) (West Supp. 1990); LA. REV. STAT. ANN. § 1299.96(2)(b) (West Supp. 1990); MD. HEALTH - GEN. CODE ANN. § 4-301(a)(l) (1990); MINN. STAT. ANN. § 144.335(2)(a) (West 1989); MONT. CODE ANN. § 50-16-502(2) (1989); 35 NEV. REV. STAT. § 629-061(l)(a) (1987); OKLA. STAT. ANN. tit. 76, § 19(A) (West Supp. 1991); OR. REV. STAT. § 192.530 (1989); W. VA. CODE § 16-29-1 (Supp. 1991); Wis. STAT. ANN. § 146.83(1)(a) (West Supp. 1990). The Montana law requires health care professionals to post a notice for patients explaining that their records are confidential and that patient may see his or her record. MONT. CODE ANN. § 50-16-512 (1987).

78 Wallace v. University Hosps., 164 N.E.2d 917 (1959), modified, 170 N.E.2d 261 (1960), appeal dismissed, 171 Ohio St. 487, 172 N.E.2d 459 (1961).

79 See, e.g.. Pyramid Life Ins. Co. v. Masonic Hosp. Ass'n, 191 F. Supp. 51 (W.D. Okla. 1961) (granting plaintiff insurance company an injunction restraining defendant hospital from preventing inspection and copying of hospital and medical records of policyholders).

80 Striegal v. Tofano, 92 Misc. 2d 113, 399 N.Y.S.2d 584 (1977).

81 See, e.g., Rogers v. Horvath, 65 Mich. App. 644, 237 N.W.2d 595 (1975); Johnston v. Sibley, 558 S.W.2d 135 (Tex. 1977); Lotspeich v. Chance Vought Aircraft, 369 S.W.2d 705 (Tex. 1963) (pre-employment physical indicated pulmonary disease, which was not disclosed to the job applicant).

In rare instances, the refusal to characterize the relationship as a physician-patient relationship has worked to the employee's advantage. In Chiasera v. Employees Mutual Liability Insurance Co., 101 Misc. 2d 877,422 N.Y.S.2d 341 (1979), the employee alleged that he had been injured in the course of examination by the physician for his employer's worker's compensation carrier. The court held that since there was no physician-patient relationship, suit was not barred by the running of the medical malpractice statute of limitations, but instead could be brought within the longer statute of limitations governing ordinary negligence. Id. at 879, 422 N.Y.S.2d at 342. See also New York Cent. R.R. Co. v. Wiler, 124 Ohio St. 118, 177 N.E. 205 (1931).

82 Courts holding occupational physicians or workers’ compensation physicians not liable for erroneous diagnoses reason in part that the physician “has no reason to believe that the person being examined will rely on his report.” Keene v. Wiggins, 69 Cal. App. 3d 308, 314, 138 Cal. Rptr. 3, 7 (1977). However, that assertion may not be true in the case of genetic screening or monitoring in the workplace. The health care professionals who undertake such testing and analysis may have special skills that the employees cannot readily find in physicians elsewhere. Thus, the employee may have an understandable tendency to rely on the occupational physician for an accurate evaluation of his or her genetic status. See Atchison, T. & S.F. Ry. Co. v. Perryman, 200 Okla. 266, 192 P.2d 670 (1948). In this case, the court held the company liable for failure to disclose evidence that the worker had a rare disease, Buerger's disease, which was not commonly known or recognized. The employee was uneducated and did not receive health care other than from company doctors or doctors reporting to the company.

83 See Greenstein v. Forrell, 143 Misc. 880, 257 N.Y.S. 673 (1932) (since physician treated patient, physician-patient relationship existed). But see Keene, 69 Cal. App. 3d at 308, 138 Cal. Rptr. at 3 (since physician merely examined worker, no physician-patient relationship existed).

84 Betesh v. United States, 400 F. Supp. 238 (D.D.C. 1974).

85 Id. at 245.

86 See PROSSER & KEETON supra note 27, at § 32. This maxim, in the context of anoccupational physician, would seem to include requiring the physician to make an understandable presentation of the information to the employee, so that the employee can act in an informed manner.

87 Hoover v. Williamson, 236 Md. 250, 253-55, 203 A.2d 861, 863-64 (1964).

88 Id. at 252-53, 203 A.2d at 862. But see Thomas v. Kenton, 425 So. 2d 396, 399-400 (La. Ct. App. 1982) (employee's complaint failed to establish physician-patient relationship; hence, doctor could not breach duty).

89 Coffee v. McDonnell-Douglas Corp., 8 Cal. 3d 551, 557, 503 P.2d 1366, 1370, 105 Cal. Rptr. 358, 362 (1972).

90 Coffee, 8 Cal. 3d at 559-62, 503 P.2d at 1372-73, 105 Cal. Rptr. at 364-65. See also James v. United States, 483 F. Supp. 581, 585 (N.D. Cal. 1980) (having made a chest X-ray an essential part of the pre-employment examination, employer failed to exercise due care when, through clerical error, the report on the X-ray was not brought to the attention of the examining physician); Betesh v. United States, 400 F. Supp. 238 (D.D.C. 1974).

91 E.g., E.I. du Pont de Nemours & Co. v. Brown, 102 F.2d 786 (3d Cir. 1939); Blue Bell Globe Mfg. Co. v. Lewis, 200 Miss. 685, 27 So. 2d 900 (1946) (employer liable where injury to employee was due in part to employer's failure to inform); Wojcik v. Aluminum Co. of Am., 18 Misc. 2d 240, 183 N.Y.S.2d 351 (1959) (employer liable for negligent, careless, reckless and willful failure to inform employee of his tubercular condition after gratuitous physical examinations revealed the condition); Atchison, T. & S.F. Ry. Co. v. Perryman, 200 Okla. 266, 192 P.2d 670 (1948).

92 E.g., Tourville v. United Aircraft Corp., 262 F.2d 570 (2d Cir. 1959).

93 E.g., Wojcik, 18 Misc. 2d at 740, 183 N.Y.S.2d at 351 (common law action may lie when tortious act was outside the scope of the worker's compensation law).

94 Johns-Manville Prod. Corp. v. Superior Court of Contra Costa County, 27 Cal. 3d 465, 476, 612 P.2d 948, 956, 165 Cal. Rptr. 858, 866 (1980).

95 Access to Employee Exposure and Medical Records, 29 C.F.R. § 1910.20 (1990).

96 Id. at § 1910.20(d)(l)(i)(A), (B). This regulation does not apply to health insurance claims records maintained separately, nor to first-aid records. In addition, the medical records of employees who have worked less than a year for the employer need not be retained if they are given to the employee upon termination of the employment. Id. at § 1910.20(d)(l)(i)(C).

97 Id. at § 1910.20(c)(4).

98 CONN. GEN. STAT. ANN. § 31-128c (West 1987); LA. REV. STAT. ANN. § 23:1125 (West 1985); MASS. GEN. LAWS ANN. ch. 149, § 19A (West 1982); MICH. COMP. LAWS ANN. § 423.501 (West Supp. 1990); OHIO REV. CODE ANN. § 4113.23 (Anderson 1991); R.I. GEN. LAWS § 5-37.3-5 (1987); Wis. STAT. ANN. § 103.13 (West 1988). The Michigan law, however, does not notifirequire the employer to release medical records if the reports are available to the employee from the doctor or medical facility involved. MICH. COMP. LAWS ANN. § 423.501(2)(c)(iii) (West Supp. 1990).

99 E.g., DEL. CODE ANN. tit. 19, §§ 720(3), 721 (1985); ME. REV. STAT. § 631 (Supp. 1990). In Pennsylvania, however, the statute giving employees access to their personnel files specifically exempts medical records from the definition of personnel file. PA. STAT. ANN. tit. 43, § 1321 (Purdon Supp. 1990).

100 R.I. GEN. LAWS § 5-37.3-5(a) (1987). See abo N.C. GEN. STAT. § 126-24 (1990) (regarding personnel records).

101 R.I. GEN. LAWS § 5-37.3-5(c), (d). See also CONN. GEN. STAT. ANN. § 31-128e (West 1987); DEL. CODE ANN. tit. 19, § 734 (Supp. 1990).

102 NEV. REV. STAT. § 613.075 (1987).

103 See ARIZ. REV. STAT. ANN. § 23-427(c) (1989); CAL. LAB. CODE § 6408(d) (Deering 1990); CONN. GEN. STAT. ANN. § 31-374(c)(3) (West 1987); D.C. CODE ANN. § 36-12-13(d) (1990); HAW. REV. STAT. § 396-7(b) (1990); I I I . ANN. STAT. ch. 48, para. 59.2(k) (Smith-Hurd 1986); IND. CODE ANN. § 22-8-1. l-17.1(c) (West Supp. 1990); IOWA CODE § 88.6(3)(c) (1987); MD. ANN. CODE art. 89, § 33(c) (1985); MICH. COMP. LAWS § 408.1061(2) (1990); MINN. STAT. § 182.663(3) (1991); NEV. REV. STAT. ANN. § 618.370(2) (1987); N.J. STAT. ANN. § 34:6A-40(c) (West 1990); N.M. STAT. ANN. § 50-9-11(B) (1988); N.Y. LAB. LAW § 27-a(3)(c) (McKinney 1986) (public employees); N.C. GEN. STAT. § 95-143(c) (1989); R.I. GEN. LAWS § 28-20-11(c) (1986); VT. STATE. ANN. tit. 21, § 228(c)(2) (1989); WASH. REV. CODE § 49.17.220(3) (1990); W. VA. CODE ANN. § 21-3A-8(c)(3) (1989); Wis. STAT. ANN. § 101.055(7)(b) (West 1988) (public employees). There is some minor variation in the wording of the statutes. While most apply to potential toxins and harmful physical agents, the Minnesota, Nevada and Wisconsin laws drop the word “potential” (thus contracting the scope of the disclosure since the requirement only applies to substances where ill effects have already been proven).

104 NEV. REV. STAT. ANN. § 618.830; N.Y. LAB. LAW § 27-a(3)(2) (McKinney Supp. 1991); Wis. STAT. ANN. § 101.055(7)(c); see supra note 103 for the applicable statutes of Connecticut, Illinois, Iowa, Maryland, Minnesota, New Mexico, North Carolina, Rhode Island and West Virginia.

105 IND. CODE ANN. § 22-8-1.1-17.1 (Burns 1987).

106 VA. CODE ANN. § 65.1-88.1 (1987).

107 WIS. STAT. ANN. § 101.055(7)(a) (West 1988).

108 NEV. REV. STAT. § 618.370(1) (1987).

109 See N. HOLTZMAN, PROCEED WITH CAUTION: PREDICTING GENETIC RISKS IN THE RECOMBINANT DNA ERA 160, 278 n.78 (1989) (citing Berwick, , Fineberg, & Weinstein, , When Doctors Meet Numbers, 71 AM. J. MED. 991 (1981)Google Scholar; Billings, & Bernstein, , Physicians Poor at Prevalence and Positive Prediction Value, 254 J. A.M.A. 1173 (1985)Google Scholar).

110 29C.F.R. § 1910.1028(i)(5)(ii) & Appendix C (1990). See also Testimony of the Amalgamated Clothing and Textile Workers Union, AFL-CIO on The Proposed Standard for Ethylene Oxide Before the Occupational Safety and Health Administration, U.S. Department of Labor, Docket No. H-200, July 1, 1983, at 10.

111 42 C.F.R. §85a.6 (1990). See aho 29 C.F.R. § 1910.20(e)(l)(i) (1990) (“Employer shallassure that access is provided in a reasonable time, place, and manner.“).

112 For example, it may be inappropriate to label samples with the individual's name because the laboratory technician (or company nurse) will immediately be aware of test results. A preferable method would be to label the samples with a numerical code.

113 Hoesl v. United States, 451 F. Supp. 1170, 1176 (N.D. Cal. 1978), aff'd, 629 F.2d 586 (9th Cir. 1980).

114 Leonard v. Wilson, 150 Fla. 503, 509, 8 Sol 2d 12, 14 (1942) (company physician who was employed and directed by employer to report result of an employee's physical exam, fell within scope of “qualifiedly privileged communication“).

115 In addition, other entities may be permitted to divulge health care information to an employer. A Connecticut statute specifically allows disclosure of information collected about an employee to the employer by, for example, NIOSH, regarding occupational illness and susceptibility to illness. CONN. GEN. STAT. § 31-383 (1987).

116 VA. CODE ANN. § 65.1-88.1 (1987). See also LA. REV. STAT. ANN. § 1127 (West 1988) (allowing employer to get an employee's records from any worker's compensation health care provider who has treated the employee).

117 AMERICAN OCCUPATIONAL MED. ASS'N, supra note 42, at Principle 7.

118 CAL. CIV. CODE § 56.10(c)(8) (West 1988).

119 Such an argument could be based on Tarasoff v. Regents of Univ. of Cal., 17 Cal. 3d 425,452, 551 P.2d 334, 354, 131 Cal. Rptr. 14, 35 (1974). See supra notes 69-71 and accompanying text.

120 Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985).

121 Id. at 1424.

122 Id.

123 See Rothstein, supra note 55, at 1467; Comment, supra note 41, at 773.

124 Access to Employee Exposure and Medical Records, 29 C.F.R. § 1910 (1990).

125 Id.

126 E.g., CONN. GEN. STAT. ANN. § 31-383 (West 1987).

127 Connecticut, Illinois, Indiana, Iowa, Maryland, Minnesota, Nevada, North Carolina, Rhode Island, West Virginia and Wisconsin.

128 See supra note 103 for the applicable statutes of Arizona, Connecticut, District of Columbia, Illinois, Indiana, Iowa, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Rhode Island, Vermont, West Virginia and Wisconsin.

129 CONN. GEN. STAT. ANN. § 31-128F (West 1987).

130 29U.S.C. § 158(a) (1988).

131 See Comment, supra note 41, at 763 (balancing labor union's right to information with employee's privacy rights requires taking adequate measures to safeguard against disclosure of sensitive individual information).

132 Minnesota Mining & Mfg. Co., 261 NLRB Dec. 27, reprinted in 109 L.R.R.M. (BNA) 1345 (1982), enforced. Oil, Chem. & Atomic Workers Local Union No. 6-148 v. NLRB, 711 F.2d 348 (D.C. Cir. 1983).

133 Minnesota Mining & Mfg. Co., 109 L.R.R.M. at 1349.

134 Id. In this particular case, the Union requested nonidentifiable information, which affected the court's balancing of interests. Id.

135 Oil, Chem. & Atomic Workers Local Union No. 6-418, 711 F.2d at 363.

136 Id. at 360-61.

137 See Comment, supra note 41, at 768.

138 Id. at 768, 769.

139 See id. 760, 769-70 & n.33; see also supra notes 27-28 and accompanying text.

140 Rothstein, supra note 55, at 1468 (citing BUREAU or THE CENSUS, U.S. DEP't OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES: 1980 394, 429) (approximately 20% of American workers are union members).

141 Rothstein, supra note 55, at 1469.

142 29 C.F.R. § 1910.20(a) (1990); 42 CF.R. § 85.5(a) (1990).

143 29 CF.R. § 1910.20(a). See Comment, Toward a Uniform Right to Medical Records: A Proposal for a Model Patient Access and Information Practices Statute, 30 UCLA L. REV. 1349, 1358 (1983).

144 United Steelworkers of Am. v. Marshall, 647 F.2d 1189 (D.D.C. 1981); General Motors v. Director of NIOSH, 636 F.2d 163 (6th Cir. 1980), cert, denied, 454 U.S. 877 (1981).

145 42 C.F.R. § 85.5(a) (1990).

146 42 C.F.R. §§ 85.4(b), 85.7(c) (1990).

147 29 C.F.R § 1910.20(a) (1990).

148 29 U.S.C. §657 (1988).

149 CONN. GEN. STAT. § 31-383 (1987).

150 Id.

151 CAL. ADMIN. CODE tit. 8, §§ 5208(j)(2)(c), 5210(m)(2), 5212(p)(3)(A-B), 5213(q)(4)(A-B), 5214(o)(4)(A), 5216(n)(4)(A) (1990).

152 Gellman, supra note 18, at 274. See also Cooper, , The Physician's Dilemma: Protection of the Patient's Right to Privacy, 22 ST. LOUIS U.L.J. 397, 403-04 (1978)Google Scholar; Note, Privacy Rights in Medical Records, 13 FORDHAM URB. L.J. 165, 195 (1985).

153 OHIO REV. CODE ANN. § 3701.25 (Anderson 1988).

154 MASS. GEN. LAWS ch. 149, § 11 (1988).

155 For example, reporting of gunshot wounds promotes the greater societal interest of identifying crimes and criminals; reporting of communicable diseases assists public health officials to prevent or control the spread of such diseases. Note, supra note 152, at 167-68.

156 See 29 U.S.C. § 657(a), (b) (1988) (conferring broad investigatory powers on the Secretary of Labor).

157 29 U.S.C. § 669(b), 671 (1982).

158 See, e.g., United States v. Westinghouse Elec. Corp., 638 F.2d 570 (3d Cir. 1980); Generaf Motors Corp. v. Director of NIOSH, 636 F.2d 163 (6th Cir. 1980), cert, denied, 454 U.S. 877 (1981); United States v. Lasco Indus., 531 F. Supp. 256 (N.D. Tex. 1981); United States v. Allis-Chalmers Corp., 498 F. Supp. 1027 (E.D. Wis. 1980); E.I. du Pont de Nemours & Co. v. Finklea, 442 F. Supp. 821 (S.D. W. Va. 1977).

159 One court noted, “[a]s a practical matter, the absence of any notice to the employees of the subpoena means that no person other than Westinghouse would be likely to raise the privacy claim. Indeed, this claim may be effectively lost if we do not hear it now.” Westinghouse Elec. Corp., 638 F.2d at 574 (6th Cir. 1980). Since the request for information was made to the company and not the employee, if the company had not raised the privacy claim and simply complied with NIOSH's subpoena, the privacy issue would not have been raised at all. The employees would not have known their records were released, nor would they have had the opportunity to object.

160 Cf. Doyle v. State Bar of Cal., 32 Cal. 3d 12, 648 P.2d 942, 184 Cal. Rptr. 720 (1982).

161 Cf. Westchester Gen. Hosp. v. Dep't of Health, Educ. & Welfare, 464 F. Supp. 236 (M.D. Fla. 1979).

162 See Westinghouse Elec. Corp., 638 F.2d at 570; Lasco Indus., 531 F. Supp. at 256; Allis- Chalmers Corp., 498 F. Supp. at 1027.

163 42 C.F.R. § 85.11(b) (1990) (copies of the determination will be mailed to the employer and to the authorized representatives of employees); 42 C.F.R. § 85a.8 (1990). Various state laws also grant workers access to information about them in the hands of the state agency monitoring employee health and safety. See, e.g., NEV. REV. STAT. § 618.370 (1987).

164 42 C.F.R. § 85a.8(b)(l) (1990).

165 Id. at § 85a.8(b)(2).

166 Id. at § 85a.8(b)(3).

167 PRIVACY PROTECTION STUDY COMM'N, PERSONAL PRIVACY IN AN INFORMATION SOCIETY 377 (1977), cited in Winslade, supra note 18, at 511.

168 Privacy Act of 1974, 5 U.S.C. § 552a (1988).

169 Id. at §552a(e)(1).

170 Id. at §552a(b)(5).

171 Id. at § 552a(b)(7).

172 Id. at §552a(b)(ll).

173 See id. at § 552a(e)(3).

174 Freedom of Information Act, 5 U.S.C. § 552(b)(6) (1988). See Lorman, , Johnson, & O'Keefe, , Tilting the Balance in Favor of Disclosure: The Scope of the Medical Records Exemption to the Federal Freedom of Information Act, 43 FOOD DRUG COSM. L.J. 17 (1988)Google Scholar.

175 ETHICAL ISSUES IN HUMAN GENETICS: GENETIC COUNSELING AND THE USE OF GENETIC KNOWLEDGE 70 (B. Hilton, D. Callahan, M. Harris, P. Condliffe & B. Berkeley eds. 1973) [hereinafter ETHICAL ISSUES IN HUMAN GENETICS] (statement of J. Lejeune).

176 E.g., Curry v. Corn, 52 Misc. 2d 1035, 277 N.Y.S.2d 470 (N.Y. Sup. Ct. 1966) (during marriage each partner has the right to know about the existence of any disease which may have a bearing on the marital relation); Berry v. Moench, 8 Utah 2d 191, 331 P.2d 814 (1958). Earlier cases allowed disclosure of women's health status to their husbands. E.g., Pennison v. Provident Life & Accident Ins. Co., 154 So. 2d 617, 618 (La. Ct. App. 1963) (“the husband, during the marriage, has a right to a full report from his wife's doctor” since “[h]e is head and master of the community and responsible for its debts“), cited xvith approval in Curry, 52 Misc. 2d at 1037, 277 N.Y.S.2d at 472. This rationale was subsequently pronounced “outmoded” in MacDonald v. dinger, 84 A.D.2d 482, 446 N.Y.S.2d 801 (1982), where a psychiatrist's disclosure to his patient's wife provided a basis for an action for breach of fiduciary duty. Id. at 486, 446 N.Y.S.2d at 805. The court recognized, however, that there might be circumstances when disclosure to a spouse by a psychiatrist is justifiable if there was a danger to the patient, spouse or another person. Id. at 487, N.Y.S.2d at 805.

177 See, e.g., Simonsen v. Swenson, 104 Neb. 224, 177 N.W. 831 (1920).

178 Gammill v. United States, 727 F.2d 950, 954 (10th Cir. 1984).

179 Similarly, it is argued that a physician has a duty to inform a patient's spouse about a patient's HIV status. Piorkowski, Between a Rock and a Hard Place: AIDS and the Conflicting Physician's Duties of Preventing Disease Transmission and Safeguarding Confidentiality, 76 GEO. L.J. 169, 176-78 (1987).

180 One commentator further argues that “those who know of their carrier status also have a right to know who else are carriers so they might make an intelligent choice of a mate.” Murray, Screening: A Practitioner's View, in ETHICAL ISSUES IN HUMAN GENETICS, supra note 175, at 121, 128.

181 The right of reproductive decision-making is viewed as the right of the individual. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). For example, a woman can abort without her husband's consent even if this will interfere with her husband's reproductive plans. Planned Parenthood v. Danforth, 428 U.S. 52, 69-70 (1976).

182 See Gellman, supra note 18, at 263-64.

183 Horne v. Patton, 291 Ala. 701, 287 So. 2d 824 (1973).

184 Id. at 708-09, 287 So. 2d at 829-30. The dissent went further in the physician's favor, opining that:

Id. at 714, 287 So. 2d at 835 (McCall, J., dissenting).

185 Carr v. Watkins, 227 Md. 578, 177 A.2d 841 (1962).

186 Id. at 584-85, 177 A.2d at 844. Note that the information released in this case was not medically-related.

187 Individuals with AIDS have experienced this. “Some cost-conscious employers have already attempted to fire AIDS patients summarily, or preemptively to exclude AIDS from their insurance policies.” Oppenheimer & Padgug, AIDS: The Risks to Insurers, the Threat to Equity, HASTINGS CENTER REP., Oct. 1986, at 18, 21. While some states have passed laws prohibiting insurance companies from excluding AIDS coverage, employers with self-insurance plans are exempt from the state laws under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1144(b)(2)(B) (1988). Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504 (1981).

188 Oppenheimer & Padgug, supra note 187, at 2 1 .

189 Id. at 20.

190 For example, in January, 1989, the Illinois General Assembly created a statewide insurance pool called the Comprehensive Health Insurance Plan (CHIP). This program provides coverage for the “hard-to-insure” who have been rejected or charged exorbitant rates by private insurers for reasons of chronic illness or permanent disability. See Culloton, State Insurance Pool Has Health Woes, Too, Chi. Tribune, Jan. 21, 1991, § C, at 7, col. 1; Lyon, A Matter of Life and Death, Chi. Tribune, Apr. 23, 1989, § C, at 12. By 1990, approximately 15 states had these trusts. Pogatchnik, AMA Urges Care for All Workers, L.A. Times, Mar. 8, 1990, § A, at 16, col. 1.

For a discussion of recent state efforts to finance health care for the uninsured, see G. ANNAS, S. LAW, R. ROSENBLATT & K. WING, AMERICAN HEALTH LAW 159-62 (1990).

191 ERISA, 29 U.S.C § 1144(b)(2)(B) (1988); Alessi, 451 U.S. at 504. See Perkins, , Prohibiting the Use of the Human Immunodeficiency Virus Antibody Test by Employers and Insurers, 25 HARV. J. ON LEGIS. 275, 289, 315 (1988)Google Scholar.

192 An Act Relating to Unfair Methods of Competition and Unfair and Deceptive Acts and Practices in the Business of Insurance, 1972 PROCEEDINGS OF THE NATIONAL ASSOCIATION OF INSURANCE COMMISSIONERS (NAIC) 512 § 4(7)(a), (b), reprinted in OFFICIAL NAIC MODEL INSURANCE LAWS, REGULATIONS, AND GUIDELINES §§ 880-1 to 880-5 (1978).

193 Perkins, supra note 191, at 299. 1M Id. at 299-300.

194 Bulcf Consumer Credit Protection Act, 15 U.S.C. § 1601-1613 (1988) (individual has right to obtain credit rating and to challenge any information the report contains).

196 R.I. GEN. LAWS §§ 5-37.3-1 to .3-11 (Supp. 1986).

197 CAL. INS. CODE § 10143(a) (Deering Supp. 1991); FLA. STAT. ANN. §626.9706(1) (West 1984); LA. REV. STAT. ANN. § 22:652.1(D) (West Supp. 1987); MD. ANN. CODE § 223(a) (Michie 1989); N.C. GEN. STAT. § 58-51-45 (Michie 1990); TENN. CODE ANN. § 56-7-207 (Michie 1990). While not dealing with a genetic disorder, some states have indicated that they are willing to restrict insurers from unfairly using other potentially discriminatory health information. A Wisconsin statute restricts life insurance companies from denying or restricting benefits because the insured's death was related to HIV infection. Wis. STAT. § 631.93 (1990). Furthermore, it provides criminal penalties for non-authorized test disclosure. Wis. STAT. § 146.025.9 (1990). More recent proposals specially proscribe insurers from disclosing medical information to the Medical Information Bureau. See supra note 61.

198 CAL. INS. CODE § 10143(a) (West Supp. 1991); FLA. STAT. ANN. § 626.9707(1) (West 1984); LA. REV. STAT. ANN. § 22:652.1(D) (West Supp. 1987); MD. ANN. CODE § 223(a)(3) (Michie 1989); N.C. GEN. STAT. § 58-58-25 (Michie 1990).

199 CAL. INS. CODE § 10143(a) (West Supp. 1991); FLA. STAT. ANN. §§626.9706(2), 626.9707(2) (West 1984) (life insurance, and disability insurance, respectively); LA. REV. STAT. ANN. § 22:652.1(D) (West Supp. 1987); MD. ANN. CODE § 223(a)(2)(i) (Michie 1989); N.C. GEN. STAT. § 58-65-70 (Michie 1990).

200 CAL. INS. CODE § 10143 (West Supp. 1988). 2” CAL. HEALTH & SAFETY CODE § 1374.7 (West 1972).

202 Currently, the national trade organization for the life insurance industry has not taken a position because they suggest that companies do not conduct genetic testing. AMERICAN COUNCIL OF LIFE INS., PRESIDENT's REPORT TO THE BOARD OF DIRECTORS 31 (Aug. 30, 1990). The Health Insurance Trade Association is developing a position on this issue.

203 American Council of Life Ins. v. District of Columbia, 645 F. Supp. 84 (D.D.C. 1986) (denying insurance company's claim that a moratorium on AIDS testing for rate adjustment purposes was unconstitutional). See also D.C. CODE ANN. § 35-230(a) (1989) (prohibits basing the decision to test for AIDS on a person's sexual orientation or other traits).

204 See Weinstock, & Haft, , The Effect of Illness on Employment Opportunities, 29 ARCHIVES ENVT'L HEALTH 79, 83 (1974)Google Scholar (“the results of this study suggest that in the area sampled, even patients with mild illnesses, which may not increase their morbidity or mortality, are being denied work“).

205 See Baram, Charting the Future Course for Corporate Management of Genetics and Other Health Risks, in 3 GENETICS AND THE LAW 475, 480 (A. Milunsky & G. Annas eds. 1985).

206 Americans with Disabilities Act of 1990 (ADA), Pub. L. No. 101-336, 104 Stat. 327 (codified at 42 U.S.C.A. §§ 12101-12213 (West Supp. 1990)).

207 42 U.S.C.A. § 12112(c)(2). The ADA's potential relevance to genetic discrimination is discussed in Gostin, , Genetic Discrimination: The Use of Genetically Based Diagnostic and Prognostic Tests by Employers and Insurers, 17 AM. J.L. & MED. 109 (1991)Google Scholar.

208 See L. ANDREWS, MEDICAL GENETICS: A LEGAL FRONTIER 18 (1987).

209 E.g., FLA. STAT. ANN. §§ 63.043, 228.201, 448.076 (West 1987).

210 E.g., id. at § 448.075; LA. REV. STAT. ANN. § 23:1002(A)(1) (West Supp. 1985); N.C. GEN. STAT. § 95-28.1 (1985).

211 E.g., LA. REV. STAT. ANN. § 23:1002(C)(1) (West Supp. 1985).

212 N.J. STAT. ANN. § 10:5-12(a) (West Supp. 1988).

213 See OTA 1990 REPORT, supra note 1, at 127.