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EEOC Issues Final Regulations Under Title II of the Genetic Information Nondiscrimination Act of 2008
On November 9, 2010, the Equal Employment Opportunity Commission (EEOC) issued its much anticipated final regulations to the employment component of the Genetic Information and Nondiscrimination Act of 2008, Title II ("GINA II"). GINA II becomes effective January 10, 2011. The EEOC has formulated these final regulations to clarify many of the terms contained in GINA II and the proper application of those terms.
The Purpose of GINA
In its entirety, GINA, which applies to employers with 15 or more employees, prohibits the use of genetic information in making health insurance and employment decisions and imposes stringent restrictions on all employers covered under the Act ("covered entity") in acquiring and disclosing genetic information. There are two components to GINA, Title I and Title II. Title I relates to the use of genetic information with regard to health insurance plans and issuers. Title II governs the use of genetic information by employers in making employment decisions.
GINA II prohibits wrongful discrimination by an employer of an employee based on the employee's genetic information or the genetic information of a family member. GINA II also imposes strict limitations on "requesting, requiring, or purchasing genetic information."
The Final Regulations to GINA Title II
The final regulations issued by the EEOC will aid employers in abiding by the numerous terms and conditions of GINA II. Since GINA II regulates certain actions of employers, awareness and understanding with regard to the parameters of these regulations is necessary as they will influence many decisions and policies which are made in the day to day workplace.
Employment Practices Prohibited by GINA II
1. Discrimination
GINA II prohibits an employer from making discriminatory employment decisions based on genetic information. The final rule clarifies that harassment based on the use of genetic information will also violate GINA II.
Pursuant to GINA II, an employer may not "limit, segregate, or classify" an employee based on genetic information. The final rule clarifies, however, that an employer will not violate GINA II if it must limit or restrict an employee's activities or responsibilities at work based on genetic information, so long as it is acting in compliance with the law e.g., genetic monitoring or compliance with the Occupational and Safety Health Administration (OSHA.) The final rule clarifies that GINA II does not create a cause of action for disparate impact.
Moreover, the final rule explains that an employer may not direct a third party or agent to engage in behavior that it may not properly do itself. The final rule makes clear that "no covered entity may cause another covered entity to discriminate on the basis of genetic information."
2. Restrictions on Acquiring an Employee's Genetic Information
GINA II restricts an employer's ability in "requesting, requiring, or purchasing genetic information." The final rule has eliminated the provision which initially required the "deliberate acquisition" of genetic information. This term had the effect of requiring an actual and "specific" intent by the employer to acquire such material. The final rule clarifies that the statute requires a lower level of intent, which it phrases as acting with a "heightened risk" that one might acquire the prohibited genetic information. This applies to actions regarding formal requests, as well less formal means of acquiring information.
The final rule has added language expanding the definition of "request" to include searching the internet or making requests for information in a manner that is "likely to result" in obtaining genetic information, as well as actively listening to third party conversations or searching an employee's personal property. The final rule clarifies that employers who attempt to acquire genetic information in a manner that is "likely to result" in obtaining genetic information would violate the law.
The EEOC explains that congress did not intend to make casual conversation in the workplace illegal. The final rule outlines several situations where acquiring genetic information inadvertently will be considered an exception to the rule, but mandates that the employer take certain precautions to prevent such a circumstance if it is foreseeable.
For example, an employer's request for medical records is permissible so long as the request includes a specific warning not to include genetic information as part of the medical records. Other exceptions relate to compliance with the Family Medical Leave Act to care for a sick family member, employer offered health or genetic services including wellness programs, acquiring information from commercially and publicly available sources, employer conducted genetic monitoring, conducting DNA testing or human remains identification, and employer required physical examinations.
3. Confidentiality - Record-Keeping Requirements
Employers must keep genetic information in a confidential medical file, separate from an employee's personnel file. The final rule clarifies that genetic information put in personnel files prior to GINA II need not be removed. If the information is impermissibly disclosed, however, the employer may be in violation of the law. The final rule does include certain limited exceptions where disclosure of genetic information is permitted.
Recommendations
The advent of these final regulations brings many requirements and concerns for employers regarding the application of these new rules to the workplace. Employers should update company policies regarding the acquisition, disclosure, handling and/or filing of genetic information as well as updating company medical request forms. In addition, employers should conduct training sessions for all managers regarding their responsibilities when encountering genetic information in the workplace. Employers are also required to post a notice in a conspicuous place explaining the provisions of the law. The EEOC has issued a poster which may be used for this purpose.
If you have any questions about these final regulations or how they may impact your organization, please feel free to contact the Nukk-Freeman & Cerra attorney with whom you normally work. | 
