With the rising costs of health care, the advancement in medical technology (particularly with regard to early screenings and preventative care), and the ability to isolate genetic factors that can be contributors to all manner of diseases and chronic disorders that can present difficulties for business through loss of productivity in addition to higher health care costs, more and more companies are screening, or trying to institute screening, for their employees. In the case of Garay Avary and Burlington Northern, the particular screen was for a genetic marker for carpel tunnel syndrome and was instituted secretly following his surgery for CTS. When he inquired as to whether or not the screen was necessary, he was met with the response that his choices were limited to having the test conducted or being terminated. BNSF’s defense during the lawsuit was a form of business necessity defense.
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