When Gary Avary, a Nebraska-based railroad worker, reported a carpal tunnel injury to the Burlington Northern Santa Fe, he was told to see a local physician for 'additional objective information.'

His wife, Janice, a registered nurse, insisted on knowing why the information included seven vials of blood.

Ultimately, the Avarys learned that the blood would be sent to Athena Diagnostics, where technicians would look for a gene said to be associated with specific, rare, carpal tunnel weaknesses. Avary, a member of the Brotherhood of Maintenance of Way Employees union, refused the tests.

BNSF threatened to dismiss him for insubordination - and a genetic testing effort that violates informed consent laws in at least 22 states was revealed.

On Feb. 9, Federal Judge Mark C. Bennet of the Western District of Iowa issued a temporary restraining order halting the BNSF tests after the Equal Employment Opportunity Commission and the Brotherhood of Maintenance of Way Employees filed suit against the railway.

?Stealth' testing
Should employers be allowed to test workers for genetic ?predispositions' to injury or disease? With advances in genetic testing, that question is one that an increasing number of workers and their unions are facing.

Railway workers in the Midwest, members of the BMWE, began tackling the issue in January, when they discovered that the BNSF had what amounted to a 'stealth' genetic testing program.

BNSF began genetic testing in December 2000, when employees who reported carpal tunnel injuries were ordered to see a local physician for ' additional objection information.' Neither the employees nor the union were informed that blood drawn from workers was submitted to Athena Diagnostics for genetic testing.

After the Avarys' discovery of what was going on, some BMWE members who had been ordered to get medical exams tried to refuse the invasive blood test. They were told by their immediate supervisors, 'You can refuse, but then I have to fire you.' Those workers then complied, but only under extreme protest and duress, the union said.

Troubling issues
Employer-mandated genetic testing raises the issue of employee privacy to a new and troubling level, notes Karl Knutsen, BMWE's legislative director. 'The notion that employers should be allowed to prowl through their employees' DNA - most likely as a way to limit the employers' responsibility for legitimate on-the-job injuries - is just not acceptable.'

The EEOC inquiry, made at the union's behest, found that the railroad's testing program violated the federal Americans with Disabilities Act. The union also believes the program violated the Railway Labor Act, because it was implemented without union knowledge or consent.

In addition, Minnesota Attorney General Mike Hatch and Iowa Attorney General Tom Miller are preparing briefs in support of the union's position, and attorneys general in several other states are considering doing the same, BMWE officials said.

A hearing to issue a permanent restraining order halting BNSF's genetic tests will be held in federal court in Sioux City, Iowa, in early April. Currently, 22 states have banned the use of genetic screening for making employment-related decisions.

Still, Knutsen worries that many workers may be threatened by such testing - and not even know it.

'The question remains: If BNSF could secretly test 125 BMWE employees, how many other railroads - and indeed how many other employers - are secretly conducting ?stealth' genetic testing campaigns on their employees?' Knutsen asks.

Diane O'Brien is communications director for the Minnesota AFL-CIO. This article also appears in the state federation's monthly newsletter, Viewpoint.

Read the report on the BMWE's website.