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Proposed GINA regulations for federal genetic discrimination law
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On March 2, 2009, the Equal Employment Opportunity Commission (EEOC) officially released proposed regulations under the Genetic Information Nondiscrimination Act of 2008 (GINA). GINA protects employees from discrimination by employers, employment agencies, labor unions, and insurers based on genetic information. The proposed regulations are designed to implement and provide further guidance on the legal requirements under Title II of GINA, which bans the use of genetic information in the employment context.
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Definitions under the Genetic Information Nondiscrimination Act
While GINA incorporates many definitions by referencing Title VII of the Civil Rights Act of 1964, the proposed regulations provide further clarification of several terms and definitions. For example, they make clear that the definition of "employee" includes former employees and job applicants.
The proposed regulations also include several definitions that aren't found in any other discrimination statutes enforced by the EEOC, including definitions for "family member," "family medical history," "genetic information," "genetic monitoring," "genetic services," "genetic test," and "manifestation or manifested."
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General rule and exceptions under GINA
The general rule under GINA provides that employers may not acquire genetic information from employees. However, the proposed regulations emphasize the following six exceptions to the general rule.
Inadvertently requesting or requiring genetic information. This exception addresses what Congress calls the "water cooler problem." This problem may occur when an employer receives otherwise prohibited genetic information during casual conversations with employees, overhears conversations between coworkers, or receives unsolicited e-mail that includes genetic information.
The EEOC suggests employers take proactive measures to avoid receiving genetic information through even inadvertent disclosure. For example, the regulations recommend that employers provide a questionnaire for employees to take to their health care professionals when obtaining documentation to support requests for accommodation. The questionnaire would indicate that family medical history and other genetic information shouldn't be included in documentation given to employers.
Audit your recordkeeping and other policies and practices with the Employment Practices Self-Audit Workbook
Health or genetic services. GINA allows employers to offer health or genetic services so long as they're part of a voluntary wellness program. The proposed regulations outline the requirements for offering such services.
Family and Medical Leave Act (FMLA). The proposed regulations recognize that employees requesting leave under the FMLA (or other similar law) may provide employers with family medical information. Businesses wouldn't violate GINA for receiving the information, but it must be kept in a separate medical file and treated as a confidential medical record.
Commercially and publicly available information. The proposed regulations also provide an exception for employers that acquire genetic information from commercially and publicly available sources such as newspapers, magazines, periodicals, books, and information communicated through electronic media (television, movies, and the Internet). Be aware, however, that court records and medical databases aren't included.
Genetic monitoring. This exception allows employers to perform genetic monitoring of the biological effects of toxic substances in the workplace if they comply with the requirements set out in the regulations.
DNA testing for law enforcement or human remains identification purposes. The last exception to the general rule applies only to employers engaging in DNA testing for either law enforcement or human remains identification purposes. Such employers may request or require genetic information from their employees in limited circumstances for quality control reasons.
Overlap with other laws
The proposed regulations make clear that GINA doesn't preempt any state or local laws that provide equal or greater protection from genetic discrimination and discuss the Act's interaction with other laws.
State-by-state comparision of 50 employment laws in 50 states, including genetic discrimination
Americans with Disabilities Act (ADA). Although the ADA currently allows employers to obtain medical information from post-offer applicants, GINA prohibits employers from obtaining any genetic information from them, including family medical history. However, when you seek information from an employee requesting reasonable accommodation under the ADA or other law, any genetic information obtained to support the request will be considered an inadvertent disclosure if the documentation request was lawful.
Under GINA, employers are required to treat genetic information in the same manner they generally treat medical information, and the regulations specify that you can use the same confidentiality regime required under the ADA. Although genetic information must be kept in medical files separate from other personnel information, it may be kept in the same file as medical information subject to the ADA.
Health Insurance Portability and Accountability Act (HIPAA). The EEOC also makes clear that Title II of GINA isn't meant to interfere with or apply to uses and disclosures of protected health information (PHI) governed by HIPAA regulations. If an employer is subject to the HIPAA privacy rule, it must continue to follow its requirements and not the requirements under GINA for genetic information that is also PHI. For example, if a hospital subject to the HIPAA privacy rule treats an employee of the hospital, any genetic information obtained by the treatment is subject to the privacy rule requirements instead of the requirements under GINA.
Audio Conference: What to Save, What to Shred: What New Laws Say About Handling Personnel Files
Bottom line
Although GINA's regulations won't take effect until November 21, 2009, there are several things employers can do to make sure they will be in compliance when they're officially implemented:
- Review your company's equal employment opportunity policies, discrimination and harassment policies, and employee handbooks. If necessary, revise them to state that your company doesn't discriminate on the basis of genetic information.
- Review your record-keeping procedures, and make sure any genetic information is kept in a separate file and treated in the same manner as medical records under the ADA.
- Examine your employment forms (especially any requests for medical records or information) to make sure they don't request genetic information.
- Review any wellness programs to ensure they're in compliance with GINA.
- Consider providing training for employees who may come across genetic information.
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Copyright 2009 M. Lee Smith Publishers LLC. NEW JERSEY EMPLOYMENTLAW LETTER . This newsletter is intended for general information purposes only, and should not be used or taken as legal advice or legal opinion on any specific facts or circumstances.
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