A (im)possibilidade de solicitação de informações genéticas preditivas do trabalhador: breve análise jurídica à luz da legislação brasileira

Abstract

This paper arose from the need to verify whether Brazilian law allows employers to require job applicants and employees to undergo predictive testing. To this end, the Constitution and infraconstitutional legal diplomas were analyzed in order to examine their details and investigate whether they authorize the request for predictive genetic testing as one of the medical examinations at work (for admission, periodic or dismissal). To this end, the methodology used was exploratory research, by means of a bibliographical survey, related to the object of study, in documentary, doctrinal, and normative sources. In light of this, it was found that the Brazilian legal system is not specific about the possibility of the employer requesting genetic tests, including the predictive type. Brazilian regulations, when dealing with worker's health, require mandatory medical tests, which are the clinical and the complementary ones. The clinical ones are already previously determined in the PCMSO, however, at the medical criteria, based on occupational risks, complementary exams can be requested, which gives rise to the possibility of requesting any type of health exam that is deemed necessary, including those of genetic nature. Although in some cases the knowledge of genetic information may bring security and benefits to the employee, the employer and, in some aspects, to society, it is evident that the negative consequences exceed these benefits, since they may generate discrimination and segregation of the employee. Thus, it was possible to conclude that the Brazilian legal system lacks specific legislation on the subject of genetic tests, and its creation would give greater protection to the worker against discriminatory situations before the demands of the employer.