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Washington Labor & Employment Wire » EEOC Issues Final Rules on GINA

EEOC Issues Final Rules on GINA


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In the November 9, 2010, Federal Register, the Equal Employment Opportunity Commission (EEOC) published its final regulations implementing Title II of the Genetic Information Nondiscrimination Act (GINA). GINA, which was signed into law on May 21, 2008, and became effective November 21, 2009, prohibits discrimination based on an individual’s genetic information or family medical history. While the EEOC issued proposed regulations in early 2009, advancement to a final rule was delayed by the need to consult with other agencies that share responsibility for enforcing GINA, as well as turnover among the EEOC’s commissioners.

Title II of GINA prohibits employers from discharging, refusing to hire, or otherwise making employment decisions on the basis of genetic information, as well as generally barring employers from obtaining genetic information about applicants, employees, and former employees. In large part, the regulations reiterate the provisions and language of Title II. However, they do provide clarification and guidance regarding a number of specific aspects of the statute.

The EEOC’s final regulations clarify that an employer need not intentionally solicit genetic information to violate GINA. While the EEOC’s earlier proposed regulations contained language relating to “deliberate acquisition” of protected information, that language was deleted from the final regulations, and the preamble to those final regulations explains that an employer “may violate GINA without a specific intent to acquire genetic information.”

Further, the final regulations provide additional guidance as to the scope of protected genetic information. GINA generally defines genetic information to incorporate family medical histories, including information about the manifestation of disease or disorders in family members of the individual. The regulations clarify the scope of that definition and provide examples of medical tests that are not considered genetic tests, such as blood counts, cholesterol tests, and screenings for alcohol or illegal drugs.

The regulations also provide additional guidance for navigating the exceptions to GINA’s prohibition against the acquisition of genetic information - particularly in the area of inadvertent acquisition of protected information. Where an employer warns a health care provider not to provide genetic information, it may take advantage of a “safe harbor” provision for the inadvertent acquisition of such information from that provider. The regulations emphasize that an employer must warn health care providers responding to Family and Medical Leave Act (FMLA) or Americans with Disabilities Act (ADA) requests not to provide the employer with an individual’s genetic or family history information. The regulations even provide sample language for employers to use to properly warn health care providers against such disclosures.

The regulations provide similar guidance for employers conducting pre-employment medical evaluations. Employers are instructed to “tell health care providers not to collect genetic information, including family medical history, as part of a medical examination intended to determine the ability to perform a job, and must take additional reasonable measures within its control if it learns that genetic information is being requested or required.” This may require some modification to the post offer/pre-employment medical examination process to remove questions pertaining to family medical history.

The regulations also acknowledge that inadvertent acquisition of protected information may occur in casual conversion between management and employees or during conversations among employees. The regulations clarify that GINA is not violated where a manager simply overhears an employee’s conversation about protected information or asks an employee basic questions, such as “How are you?” or “How is your son feeling today?”

Pursuant to GINA, employers that do obtain protected genetic and family history information must comply with strict confidentiality requirements. The confidentiality provisions in the regulations mirror certain confidentiality provisions in the ADA, and require that protected information be kept in a separate confidential file and not in an employee’s personnel file.