EEOC Issues Final Regulations on the Genetic Information Nondiscrimination Act

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November 10, 2010

By: Oyvind Wistrom

Background

On November 9, 2010, almost a year after the Genetic Information Nondiscrimination Act (“GINA”) took effect for employers, the Equal Employment Opportunity Commission issued its final regulations interpreting that portion of the law banning employment discrimination and retaliation based on an individual’s genetic information and family medical history.

Title II of GINA prohibits the use of genetic information in the employment context and restricts employers and other covered entities (employers, employment agencies, labor organizations and apprenticeship programs) from requesting, requiring, or purchasing an individual’s genetic information or making employment decisions based on such data.  The law incorporates by reference many of the familiar definitions, remedies and procedures from Title VII of the Civil Rights Act of 1964, as amended.  

The Act was initially signed into law by former President George W. Bush on May 21, 2008 and took effect for employers on November 21, 2009.  GINA is codified at 42 U.S.C. § 2000ff et seq and the EEOC’s final regulations will be codified at 29 C.F.R. Part 1635.

Significant Impact of EEOC’s Final Regulations

Section 201(4) of GINA and the final regulations define genetic information to include information from genetic tests, the genetic tests of family members, and family medical history.  Genetic information also includes information about an individual’s or family member’s request for or receipt of genetic services.  One significant aspect of GINA is what it does not cover.  It does not apply to worker’s compensation claims or protected health information protected by HIPAA.  It applies only to genetic information.

The term “family member” is very broadly defined in the regulations to include children, siblings, parents (first degree), grandparents, grandchildren, uncles, aunts, nephews, nieces, and half-siblings (second degree), great-grandparents, great grandchildren, great aunts and uncles, and first cousins (third degree) and great-great grandparents, and first cousins once removed (fourth degree).  

The final regulations make it clear that GINA protects current employees, as well as former employees.  This is consistent with the recognized principle that “[f]ormer employees are protected by the EEO statutes when they are subjected to discrimination arising from the former employment relationship.”  For instance, a former employer that discloses to a prospective employer a former employee’s genetic information may be violating the provisions of GINA.

In addressing the prohibited practices under GINA, Congress adopted language very similar to that used in Title VII and other equal employment statutes, evincing an intent to prohibit discrimination with respect to a wide range of covered practices, including hiring, promotion, demotion, seniority, discipline, termination, compensation, and the terms, conditions and privileges of employment.  The final regulations also make it clear that harassment on the basis of genetic information is cognizable under the GINA.  A covered entity is also prohibited from limiting, segregating or classifying employees based on genetic information, unless it is required to do so by law or regulations mandating genetic monitoring such as regulations administered by the Occupational Safety and Health Administration (“OSHA”).

The final regulations also reiterate the statutory prohibition against retaliation where an individual opposes any act made unlawful by GINA, files a charge of discrimination, assists another in doing so, or gives testimony in connection with a charge.  The standard for retaliation is the same as under Title VII – would the adverse employment action “dissuade a reasonable worker from making or supporting a charge of discrimination.”   

GINA prohibits a covered entity from requesting or acquiring genetic information.  The EEOC’s final regulations further define such prohibitions to include “conducting an Internet search on an individual in a way that is likely to result in the covered entity obtaining genetic information; actively listening to third party conversations or searching an individual’s personal effects for the purpose of obtaining genetic information; and seeking information about an individual’s current health status in a way that is likely to result in a covered entity obtaining genetic information.”  Covered entities need to avoid engaging in any conduct that is likely to disclose genetic information about the employee or any of his/her family members.

The final regulations also clarify that a violation does not occur where the acquisition of genetic information is passive or inadvertent.  For instance, an employer’s inadvertent acquisition of genetic information in “water cooler” conversations is not prohibited.  This exception applies when a supervisor or other official receives family medical history from an individual following a general inquiry about the individual’s health (e.g., “how are you?” or “did they catch it early?” asked of an employee who was just diagnosed with cancer).  However, intentional eavesdropping on private conversation, or asking highly specific follow-up questions, do not fall within the bounds of the exception (e.g., “is there a family history of cancer in your family?”). 

Another exception relates to information received in responses to an employer’s requests for medical information under the Family and Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”).  The final regulations emphasize, however, that an employer must warn health care providers responding to the employer’s FMLA or ADA information requests that they should not give the employer data regarding an individual’s genetic information.  For instance, when an employer directs a company doctor to conduct an employment-related medical exam of an applicant or employee, the employer must instruct the doctor not to ask for genetic information.  

Where an employer legitimately obtains protected genetic information, it must keep that data private, in a confidential file that is separate from the individual’s personnel file, in the same manner that the ADA requires confidentiality of an individual’s medical information.

With respect to voluntary wellness programs, GINA prohibits financial inducements for individuals to supply genetic information or family medical history.  However, the regulations also describe situations not covered by GINA, such as disease management programs and “voluntary” wellness programs.  When financial inducements are offered to complete a health risk assessment, the employer must have the option of receiving the inducement even if he/she does not complete any portion of the assessment requiring the disclosure of genetic information.  Employers may also offer inducements for participating in a wellness program or for achieving certain health outcomes.

The final regulations stress that employers are required to post in a conspicuous place the revised EEO poster, which is available at http://www1.eeoc.gov/employers/poster.cfm.  Failure to do so can result in a fine of up to $100 per day.

Impact on Employers

The EEOC’s final regulations shed significant light as to the application and scope of GINA.  With the increased availability of genetic information and with more than 200 charges having been filed with the EEOC under GINA since the Act was took effect last year, it is anticipated that  increased attention will be focused on this law.  Employers must carefully manage its acquisition and use of medical and genetic information to ensure that any genetic information that it is inadvertently received is stored confidentially and not considered in taking any employment action.

If you have any questions about the issues raised by this e-alert, please feel free to contact Oyvind Wistrom at (414) 273-3910 or by e-mail at or owistrom@lindner-marsack.com.