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 Title II.
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 cousins once-removed.
- 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 education.
- 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 communications:
- 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 violate GINA.
- 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 GINA.
- 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 disclosure.
For more information about GINA, please contact any member of the McGuireWoods Labor & Employment team.