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José J. Santiago
Carlos A. Padilla
Antonio L. García
Establishes the prohibition of discrimination based on genetic information as Puerto Rico public policy. The Act prohibits the use of genetic information by public and private employer in reaching decisions about all aspects of employment including hiring, pay, work assignments, promotions, terminations, trainings, fringe benefits or any other term or condition of employment.
As an exception, use of genetic information is allowed to evaluate petitions of reasonable accommodation where the claimed disability is one that is reflected in the individual's genetic information. Use of genetic information is also permitted to assist the employee in matters related to this own health and wellbeing; or to monitor the genetic materials for the effects of toxic substances in the workplace. Use of genetic information is also allowed when the employee provides free and voluntary authorization or when such monitoring is authorized by a federal or state provision.
All employers, employment agencies or unions that hold an employee's genetic information must maintain said information in separate files and treat it as confidential employee records. The Act establishes six narrow exceptions under which the information may be disclosed.
The Act prohibits group health plans and insurance companies from denying coverage based only on a person' genetic predisposition to develop a disease. Insurance companies may not require individuals to provide their own or a relative's genetic information or to undergo any genetic test to be eligible for coverage nor may they use genetic information to make decisions regarding benefit coverage.
The Act establishes a cause of action in torts for persons discriminated on the basis of genetic discrimination, which would provide triple the damages suffered by the plaintiff.
In Zoraida Reyes Sánchez v. Eaton Electrical H/N/C Eaton Electrical Las Piedras, 2013 TSPR 108, 189 DPR ____ (October 7,2013), the Puerto Rico Supreme Court reviewed the requirements of Act 80 of May 30, 1976, regarding how an employer must select the affected employees in a reduction in force.
The Court reiterated the principle that the employer must select the employees to be laid off in the affected classification according to their seniority with the company as a whole, not seniority in the affected classification, as the plaintiff had claimed.
The plaintiff had also alleged that the company was a multi-plant employer that transferred employees between plants as a normal and regular practice and that it operated in an integrated manner regarding personnel matters. She claimed that Eaton should have established a seniority list including employees from all P.R. company plants based on the fact that an Eaton program allows its employees to apply for jobs in any company plant on a worldwide level. Six employees, including the plaintiff, had been transferred to the plant in question. The Court rejected this allegation explaining that while the company program allows employees to apply for job openings, Eaton retains the right to decide whether or not to hire the employee for that opening which does not constitute an employee transfer under Act 80. Moreover, four of the alleged employee transfers came from jurisdictions outside Puerto Rico and the Court concluded that Act 80 does not require an employer to consider international employee transfers under Act 80.
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