On February 25, 2009, the U.S. Equal Employment Opportunity Commission (“EEOC”)
published Proposed Regulations implementing Title II of the Genetic Information
and Nondiscrimination Act of 2008 (“GINA”). The public comment period is 60
days. GINA, which became law in May 2008, seeks to protect individuals from
discrimination based on genetic information in insurance and employment. Title
II of GINA prohibits employers and other covered entities from discriminating on
the basis of genetic information. The proposed regulations are designed to
provide additional guidance regarding a covered entity’s obligations pursuant to
Both GINA and the proposed regulations adopt a number of definitions from
other statutes. The general definition section, proposed 29 C.F.R. § 1635.2,
lists these terms and defines their specific application. Specifically, the term
covered entity means an employer, employing office, employment agency, labor
organization, or joint labor-management committee. Most importantly, the term
employee includes both applicants and former employees.
The proposed regulations further define six terms specific to GINA in
proposed 29 C.F.R. § 1653.3.
- Family member means a person depending on an individual as the result of
marriage, birth, adoption, or placement for adoption; or an individual’s
parents, siblings, children, half-siblings, grandparents, grandchildren,
uncles, aunts, nephews, nieces, great-grandparents, great grandchildren,
great uncles, great aunts, first cousins, great-great grandparents and first
- Family medical history means information about the manifestation of
disease or disorder in the family members of the individual.
- Genetic information means genetic tests of an individual or family
member, family medical history, genetic services requested by or received by
the individual or family member, or genetic information of a fetus carried
or held using assisted reproductive technology by the individual or a family
member. Genetic information excludes information about the sex or age of the
individual or family member.
- Genetic monitoring means periodic examination of employees to evaluate
acquired modifications to their genetic material caused by the toxic
substances they use or are exposed to in performing their jobs.
- Genetic services means a genetic test, genetic counseling or genetic
- Genetic test means an analysis of human DNA, RNA, chromosomes, proteins
or metabolites that detects genotypes, mutations or chromosomal changes.
Medical examinations that do not look for human genetic material, including
drug and alcohol tests, are exempted from this definition.
The proposed regulations specifically note that not all medical information
is genetic information. Proposed 29 C.F.R. § 1635.12 states that medical
information about a manifested disease, disorder or pathological condition does
not constitute genetic information.
Covered entities may not discriminate, or cause an employer to discriminate,
on the basis of genetic information in regard to hiring, discharge,
compensation, terms, conditions or privileges of employment. The proposed
regulations prohibit limiting, segregating or classifying individuals on the
basis of genetic information (i.e., disparate treatment). However, no cause of
action for disparate impact is available. The regulations further prohibit
retaliation against individuals who oppose unlawful genetic discrimination.
Acquiring Genetic Information
Generally, a covered entity may not request, require or purchase genetic
information of an individual or family member. However, the regulations offer
non-exhaustive exceptions regarding when inadvertent acquisition of genetic
information does not violate GINA. For example, with respect to verbal
- A manager or other official of a covered entity that overhears a
conversation and inadvertently learns of genetic information does not
violate this section.
- The EEOC’s proposed regulations broaden the statutory exemption for
employers who overhear conversations about family medical history.
- A covered entity that receives genetic information about an individual
from the individual or a third party without soliciting or seeking that
information does not violate GINA.
In addition, with respect to documentation:
- An employer that receives genetic information from an individual as a
part of documentation to support a request for reasonable accommodation does
not violate GINA so long as the request for documentation is lawful.
- An employer that receives genetic information from an individual in
response to an employer’s lawful request for non-genetic medical
information, for reasons including support for a request for leave, does not
- An employer may request family medical history to comply with the
certification provisions of the Family and Medical Leave Act (“FMLA”) or
similar leave laws.
A covered entity is not liable if it acquires genetic information from
commercially and publicly available documents, unless the covered entity
researches medical databases or court records for the purpose of obtaining
genetic information about an individual. A covered entity also does not violate
this section where the covered entity acquires genetic information for use in
the genetic monitoring of the biological effects of toxic substances in the
workplace, provided that the covered entity provides written notice of the
monitoring to the individual, the monitoring is required by law or conducted
only when the individual gives prior written authorization, the individual is
informed of the individual’s monitoring results, the monitoring is conducted in
compliance with any Federal genetic monitoring regulations, and the covered
entity only receives results in aggregate.
A covered entity that possesses written genetic information about an employee
or family member must separate that information from personnel files and treat
the information as a confidential medical record. Genetic information may be
maintained in the same file in which the covered entity maintains confidential
information pursuant to the Americans with Disabilities Act (“ADA”). Orally
received genetic information may not be disclosed unless otherwise permitted by
GINA or the regulations. Genetic information acquired through public sources is
not considered confidential, but may not be used for discriminatory purposes.
A covered entity may not disclose confidential genetic information except in
a narrow set of circumstances. Specifically:
- A covered entity may disclose such information to the individual upon
receipt of the individual’s written request, to an occupational or other
health researcher, or to government officials investigating compliance with
- A covered entity may also disclose such information to the extent
disclosure is made in support of an employee’s compliance with the
certification procedures of the FMLA or similar leave laws, or to a public
health agency only with regard to information about the manifestation of a
disease or disorder that concerns a contagious disease that presents an
imminent hazard of death or life-threatening illness, provided that the
individual who is the subject of the disclosure is notified of such
For more information about GINA, please contact any member of the
McGuireWoods Labor & Employment team.