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On February 25, 2009, the Equal Employment Opportunity Commission (”EEOC”) distributed advance copies of a proposed rule under the Genetic Information Nondiscrimination Act (”GINA”).

GINA, which was signed into law on May 21, 2008, prohibits health insurers and employers from discriminating against someone on the basis of their genetic information. The EEOC is responsible for developing implementing regulations by May 21, 2009 for Title II, which (1) prohibits employers from discharging, refusing to hire, or otherwise discriminating on the basis of genetic information, (2) bars employers from intentionally acquiring genetic information about applicants and employees, and (3) imposes strict confidentiality requirements regarding genetic information. Title II will become effective on November 21, 2009.

The proposed regulations provide additional guidance regarding some of the terms used in the Act. For example, the regulations define “employee” to cover not just current employees, but also applicants and former employees. The proposed rule also clarifies that drug and alcohol tests are not “genetic tests,” and invites comments on the scope of the term “genetic test,” specifically, “how the term should be applied, whether the proposed regulation should be more or less expansive, and whether it or the preamble should provide examples of what should be included or excluded.”

GINA provides six exceptions to the statutory sections prohibiting employers from acquiring genetic information. The proposed regulation addresses each of the exceptions, which are (1) where the employer inadvertently obtains genetic information; (2) where the employer offers qualifying health or genetic services, including such services offered as part of a voluntary wellness program; (3) where the employer requests family medical history to comply with the certification provisions of the Family and Medical Leave Act (”FMLA”) or state or local family and medical leave laws; (4) where the employer acquires genetic information from documents that are commercially and publicly available, including print and Internet publications, except that an employer may not research medical databases or court records for the purpose of obtaining genetic information about an individual; (5) where the employer acquires genetic information for use in the genetic monitoring of the biological effects of toxic substances in the workplace, provided that the employer complies with monitoring restrictions provided in the proposed regulation; (6) where an employer that conducts DNA analysis for law enforcement purposes requires genetic information of its employees, apprentices, or trainees for quality control purposes to detect sample contamination.

In the proposed rule, the EEOC states that it is specifically seeking comment on subtleties of three of these exceptions: (1) what constitutes “voluntary” with respect to the employer-provided wellness program exception; (2) what should be included in the “commercially and publicly available” exception, particularly with respect to blogs and social networking sites; and (3) how the law enforcement exception should be applied.

The proposed regulation also reiterates the statutory prohibition against retaliation where an individual opposes any act made unlawful by GINA, files a charge of discrimination or assists another in doing so, or gives testimony in connection with a charge. The proposed regulation also addresses treatment and disclosure of genetic information, medical information that is not genetic information, enforcement and remedies, and the relationship of GINA to other laws.

At the February 25, 2009 EEOC meeting, Acting Chairman Stuart Ishimaru clarified that the 60-day comment period would not commence until publication of the Notice of Proposed Rulemaking (”NPRM”) in the Federal Register, which is anticipated on February 26th or 27th. Comments should be sent to the EEOC through the federal e-Rulemaking portal at http://www.regulations.gov/.