On March 2, 2009, the Equal Employment Opportunity Commission (EEOC) officially released the proposed regulations under the Genetic Information Nondiscrimination Act of 2008 (GINA). GINA is intended to protect employees from discrimination by employers, employment agencies, labor unions, and insurers based on genetic information.
The proposed regulations are designed to implement and provide further guidance on the legal requirements under Title II of the Genetic Information Nondiscrimination Act, which bars the use of genetic information in the context of employment. The EEOC has requested public comments on the proposed regulations, but must receive all remarks on or before May 1, 2009.
Although the Genetic Information Nondiscrimination Act incorporates many definitions by referencing other discrimination laws, the proposed regulations provide further clarification on several of these terms and definitions. For example, the regulations make clear that the definition of “employee” under GINA includes job applicants and former employees. The proposed regulations also provide definitions for six terms that are not found in any of the other employment discrimination statutes enforced by the EEOC, including “family member,” “family medical history,” “genetic information,” “genetic monitoring,” “genetic services,” and “genetic test.”
The proposed regulations to Genetic Information Nondiscrimination Act also emphasize and go into significant detail about the six exceptions to the general rule that employers may not acquire genetic information. The six exceptions include the following:
1. Inadvertently requesting or requiring genetic information;
2. Health or genetic services;
3. The Family and Medical Leave Act (FMLA);
4. Commercially and publicly available information;
5. Genetic monitoring; and
6. DNA testing for law enforcement or human remains identification purposes.
The EEOC specifically invites comments on the nuances of three exceptions. First, the EEOC would like input on what the term “voluntary” means in the context of employers offering health or genetic services as part of voluntary wellness programs. Second, the EEOC questions whether personal and social networking websites should be included in the “commercially and publicly available information” exception. Finally, the EEOC would like clarification on the impact of the law enforcement exception.
The proposed regulations to the Genetic Information Nondiscrimination Act also address confidentiality, the treatment of genetic information, limitations on disclosure, and GINA’s relationship to other laws. The regulations specifically address issues of overlap between GINA and both the Health Insurance Portability and Accountability Act (HIPAA) and the Americans with Disabilities Act (ADA).