Mar. 2 2009

EEOC Issues Proposed GINA Regulations

Topics: New Laws & Legislation

The EEOC has published proposed regulations implementing Title II of the Genetic Information Nondiscrimination Act of 2008 ("GINA"). The text of the proposed regulations is here. A public comment period is open through May 1, 2009.

GINA was enacted last year to prohibit discrimination in health insurance and in employment on the basis of a person's genetic information. The Act was passed in acknowledgement of the increasing prevalence of medical tests that exist to inform individuals whether they are at risk for developing certain diseases and disorders. Along with the increased availability of such tests comes increased concern among the public that they may be at risk of losing health insurance and/or employment if insurers or employers know the results of these tests. GINA was enacted to address these concerns and prevent discrimination based on genetic information. Title I of the Act covers discrimination in group and individual health care premiums. Title II covers discrimination in employment. The proposed regulations issued by the EEOC pertain solely to Title II and discrimination in employment.

GINA restricts employers, with few exceptions, from deliberately acquiring genetic information about applicants and employees, and prohibits the use of such information in employment decision-making. GINA also requires that any genetic information be kept confidential, and places strict limits on the disclosure of genetic information. The proposed regulations explain these restrictions and provide detailed guidance on scenarios that would be considered unlawful deliberate acquisition of genetic information. The proposed regulations also provide guidance on the exceptions to the rule, where employers are permitted to acquire genetic information in certain circumstances. For example, an employer does not violate GINA if it inadvertently acquires genetic information (e.g. overhearing conversation with an employee about a family member who died of a genetic disease and/or obtaining genetic information in response to a valid request for medical certification to support a leave request or a request for reasonable accommodation). The regulations make clear, however, that if an employer's request for medical information is overbroad and the employer obtains genetic information because of the overbreadth of its request, the acquisition of such information violates GINA.

The proposed regulations also make clear that even if there is a statutory exception that allows the acquisition of genetic information, such information must still be maintained confidentially (as is the case with other employee medical information) and must not be used to discriminate against the employee.

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Robin Largent represents employers, including major food and retail companies, in all types of employment litigation: wrongful termination, retaliation, breach of contract, wage and hour (California Labor Code) and unfair competition. She also regularly counsels and advises California employers on issues of compliance with California and federal employment laws.
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