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New Rules Proposed to Implement the Genetic Information Non-Discrimination Act (GINA)

March 17, 2009

On Monday, March 2, 2009 the Equal Employment Opportunity Commission (EEOC) released its proposed regulations to implement Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA)*. Title II of GINA is designed to extend to individuals — in the area of genetic information — the same procedures and remedies as are provided under Title VII of the Civil Rights Act of 1964, as amended.

More specifically, Title II states that employers, labor unions and employment agencies: (1) may not deliberately acquire genetic information; (2) use or consider genetic information in making decisions related to terms, conditions, or privileges of employment; (3) must keep genetic information confidential; (4) must comply with strict limitations regarding the disclosure of genetic information; and (5) may not retaliate against an individual for opposing any act made unlawful by GINA. GINA was signed into law by President George W. Bush on May 21, 2008.

The scope of GINA is broad, in part because "genetic information" is broadly defined. Under the Act, genetic information includes, but is not limited to, genetic tests of employees and their family members, genetic information of a fetus carried by a pregnant employee or family member, and any manifestation of a disease or disorder in an employee's family member. The phrase "family member" is also defined broadly, including dependents related by marriage, birth or adoption, and fourth-degree relatives.

The EEOC's proposed regulations help to clarify GINA's prohibitions. For instance, GINA's statutory language defines "genetic test" as "analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detect genotypes, mutations, or chromosomal changes." The EEOC has stated that routine tests, such as blood counts, cholesterol tests, and liver function tests, are not “genetic tests” under the Act. In addition, while testing an individual's predisposition for alcoholism or drug use constitutes a "genetic test," testing for the presence of drugs and alcohol does not constitute a “genetic test.” The EEOC seeks comment on whether any other tests should be included or excluded from its definition of “genetic test.”

While all sections of the regulations are eligible for comment, the EEOC particularly seeks comments with respect to those sections that contain terms and concepts that are generally outside the EEOC’s traditional scope of expertise — such as the definitions of “family member,” “family medical history,” “genetic monitoring,” “genetic services,” and “manifestation” of a genetic condition or disease.

The GINA regulations borrow some terms and concepts from other anti-discrimination laws — e.g., Title VII — which are administered by the EEOC. The term “employee,” for example, is defined under the regulations to include current employees, applicants and former employees, which is consistent with Title VII. In addition, while Title II of GINA does not expressly prohibit harassment, the EEOC has concluded that Congress intended GINA to prohibit harassment as well as discrimination and retaliation, since GINA includes similar language to that used in Title VII.

While GINA does not preempt state or local anti-discrimination or privacy laws that provide greater or equal protections, Title II of GINA does limit some pre-employment inquiries that are currently permissible under the ADA. Specifically, once GINA takes effect, employers will no longer be able to solicit, require or obtain "genetic information," including family medical history, as part of a pre-employment physical examination. In addition, if the employer inadvertently receives genetic information as a result of a pre-employment physical examination, that employer may not use that information in making any decisions regarding that the applicant's terms or conditions of employment.

Six Exceptions to Liability under GINA

GINA has few narrow exceptions to legal liability for employers. These exceptions include requesting, requiring or acquiring genetic information: (1) inadvertently; (2) through health or genetic services offered to employees as part of a wellness program; (3) in compliance with FMLA (or similar state law) certification requirements; (4) through commercially or publicly available sources; (5) through genetic monitoring of the biological effects of toxic substances in the workplace; and (6) for law enforcement purposes. The EEOC seeks comment on the appropriate scope of each exception.

One exception worthy of special attention provides that an employer is not liable under GINA if genetic information is obtained inadvertently. According to the EEOC, this exception may be triggered, for example, when a supervisor overhears casual conversation between co-workers in which family medical history is discussed or asks an employee a general question in casual conversation about the health of a family member — e.g., "How's your son feeling today?" This exception also applies when genetic information is provided to the employer by the employee in support of a request for an accommodation under the ADA, or when an employer asks for medical information in response to an individual's request for leave pursuant to a leave policy independent of a state or federal leave or disability law as long as the employer's request or requirement is reasonably tailored to the particular impairment for which leave has been requested.

Reviewing the Regulations and Submitting Comments to the EEOC

The proposed regulations are published on the worldwide web at www.regulations.gov. The EEOC is currently accepting public comment on the proposed regulations until May 1, 2009. Anyone desiring to submit a comment to the EEOC may do so at www.regulations.gov; by mail to Stephen Llewellyn, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street, NE., Suite 6NE03F, Washington, DC 20507; or by fax (six or fewer pages only) to (202) 663-4114. All comment submissions must include the agency name (EEOC) and docket number or the Regulatory Information Number (RIN): 3046-AA84. The finalized regulations for Title II of GINA must be issued by May 21, 2009.

Be Proactive — Make Sure Your Organization is In Compliance with GINA

More than 30 states already have laws prohibiting genetic discrimination, including Michigan. However, GINA is more comprehensive than Michigan's genetic privacy laws, and employers should proactively develop an understanding of the requirements imposed by GINA to ensure compliance with the Act. The following are a few steps employers can take in response to GINA's requirements:

  1. Revise equal employment opportunity statements to include a non-discrimination on the basis of genetic statement;
  2. Review all processes and forms to determine whether the organization requests or requires genetic information;
  3. Review all currently held employee medical information to determine whether that information might constitute genetic information;
  4. Treat any currently held genetic information the same as confidential medical records held separate from employee personnel records; and
  5. Implement policies and procedures to prevent the inadvertent disclosure of genetic information.

GINA will take effect on November 21, 2009.

If you have any questions regarding how this Act may affect your workplace, please do not hesitate to contact an attorney in Varnum's Labor and Employment Practice Team.

* The proposed EEOC regulations only relate to Title II of GINA. The Departments of Health and Human Services, Labor and the Treasury will be responsible for administering Title I, which applies to group health plans sponsored by private employers, unions, and state and local government employers, and other entities. Nevertheless, the regulations for Title II explain that if Title I offers a remedy for a special insurance-related practice or act, then that practice or act cannot be challenged and no remedy may be sought under Title II.

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