In May of last year, Congress passed the Genetic Information Non-Discrimination Act of 2008 (GINA). GINA prohibits employers and health insurers from collecting employee genetic or family medical history, and from discriminating on the basis of an individual's genetic information. The Equal Employment Opportunity Commission was charged with issuing regulations implementing the employment portions of GINA, including employers' ability to gather employee and applicant genetic information, and confidentiality rules regarding any acquired genetic information.
On Monday, the EEOC issued proposed regulations implementing the employment provisions of GINA. The proposed rules contain important guidance for employers when determining compliance responsibilities. They also reflect a number of areas where the EEOC is uncertain as to the scope of the legislation, and is seeking comment from employers and the disability rights community.
Some of the highlights of the proposed rules include:
1. Definition of some key terms not spelled out in the legislation, such as family members and genetic tests. The EEOC proposes that family members extend to the fourth degree of an individual. Given that many modern medical tests contain some genetic element, the EEOC is asking for input on the definition of prohibited genetic tests.
2. The proposed rules stress limitations on employers' collection of employees' family medical histories. The regulations include a number of important exceptions to this prohibition, including the "water cooler exemption," which excludes inadvertent acquisition of employee family medical history through casual conversations, etc. One open-ended question involves employers who acquire family medical history through deliberate searches of Facebook pages or other social networking sites.
3. The rules explain the interplay between GINA, and the Americans with Disabilities Act and Family and Medical Leave Act. The EEOC states that medical inquiries and examinations allowed under the ADA cannot include requests for genetic or family medical history. For FMLA medical certifications, employers may want to stick to the model DOL certification forms to avoid a claim that they are requesting prohibited information.
4. The proposed regulations define when genetic information can be collected as part of wellness programs, and also the steps employers must take to wall off the possibility of acquisition of an individual employee's genetic information during these programs.
For the most part, the EEOC proposes adoption of Title VII's complaint and investigation procedures for GINA claims. Comments on the proposed rules are due by May 1, 2009. GINA takes effect on May 21. The proposed rules can be found at www.eeoc.gov.