HR Management & Compliance

EEOC Seeking Comment on Proposed GINA Regulations

The U.S. Equal Employment Opportunity Commission (EEOC) is in the process of finalizing regulations implementing the employment provisions of the Genetic Information Non-Discrimination Act of 2008 (GINA).

The Genetic Information Non-Discrimination Act, signed into law in May 2008, prohibits discrimination by health insurers and employers based on people’s genetic information. The EEOC is to issue regulations by May 21, 2009, implementing Title II of GINA, the part that prohibits the use of genetic information in employment, prohibits the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements.

The EEOC opened a 60-day public comment period on the proposed regulations during a February 25 meeting in which EEOC members heard representatives of advocacy groups and the human resources profession.

The human resources representative, Karen Elliott, a member of the Society for Human Resource Management and an attorney, brought up concern that “employers could find themselves involuntarily in possession of genetic information through the normal course of their workplace operations.”

The law includes six exceptions for the lawful acquisition of genetic information. Elliott urged clarification of the scope of those exceptions through rulemaking. “GINA’s list of enumerated exceptions is far from a complete picture of the ways in which an employer may, willingly or unwillingly, receive genetic information about an employee or family member of an employee,” Elliott said at the February 25 meeting.

She went on to recommend that the exceptions be clarified to ensure the following:

  • Information not sought by the employer and information that is self-disclosed by the employee should be covered under an exception.
  • The exception allowing for the acquisition and disclosure of information to comply with federal and state family and medical leave laws should be clarified to include information used by an employer to comply with its sick or family leave that doesn’t trigger the federal Family and Medical Leave Act (FMLA), local family and medical leave laws, workers’ compensation forms, Americans with Disabilities Act (ADA) accommodations, or discussions regarding health insurance coverage under HIPAA or COBRA.
  • Clear guidance to employers and employees about their rights and responsibilities under GINA.
  • Allowable disclosure should be clarified to include disclosure allowed by the ADA in health-related emergency situations.

The EEOC has more information in a question and answer document – Background Information for EEOC Notice of Proposed Rulemaking on Title II of the Genetic Information Nondiscrimination Act of 2008.