this statute's definition of "disability."12 Another limitation of the ADA concerns its lack of practical impact: job applicants and employees are often either unaware or unable to prove that employers have made decisions based on the health information about their employees.13 The ADA may, however, sometimes provide privacy protection by making some employers reluctant to collect and process certain kinds of personal information. Because of fear of litigation, employers may avoid collection of data regarding health conditions that place an employee or a qualified job applicant under the ADA's protection. Collecting such data might lead to inference of an ADA violation.

State Statutes and Regulations

At the state level, measures for protecting health information include constitutional law and statutes. Constitutional law has sometimes been interpreted as setting limits on the collection and dissemination of health data.14 Statutory measures establish doctor-patient confidentiality and common law tort remedies.15 More than a dozen states have enacted laws that place limitations on the use of genetic information by health insurers.16

States have specific laws that govern how open the records of the state will be, and many state agencies have agency-specific statutes governing confidentiality, access, and use of their data. However, little uniformity exists among state statutes and regulations protecting health information. Protections vary according to the holder of the information

12  

42 U.S.C. §12112(a). See Rothstein, Mark A. 1992. "Genetic Discrimination in Employment and the Americans with Disabilities Act," Houston Law Review 29(23):83. ("The ADA's coverage of a wide range of genetic conditions is not resolved.")

13  

See generally Burgdorf, Jr., Robert L. 1991. "The Americans with Disabilities Act," Harvard C.R.-C.L. Law Review 26(413):434-437. See also Schultz, Ellen E. 1994. "Open Secrets: Medical Data Gathered by Firms Can Prove Less Than Confidential," Wall Street Journal, May 18, p. Al.

14  

California Constitution, Art. I, §1. For cases interpreting this right, see Urbaniak v. Newtown, 226 Cal. App. 3d 1128, 277 Cal. Rptr. 354, 357-358 (1991); Division of Medical Quality v. Gherardini, 93 Cal. App. 669. 156 Cal. Rptr. 55, 61-62 (1979).

15  

See, for example, California Civil Code §56; Wisconsin Statutes Annotated §146.82; Rhode Island General Laws § 5-37-9. For cases interpreting the duty of confidentiality, see Horne v. Patton, 291 Ala. 701, 287 S.2d 824, 827-830 (1974); Hague v. Williams, 37 N.J. 328, 181 A.2d 345, 347-349 (1962). See also Gellman, Robert. 1984. "Prescribing Privacy: The Uncertain Role of the Physician in the Protection of Patient Privacy," North Carolina Law Review 62(255):274-278.

16  

For an overview and excellent analysis, see Rothenberg, Karen H., 1995, "Genetic Information and Health Insurance: State Legislative Approaches," Journal of Law, Medicine, and Ethics 23(312):312-319.



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