Now would be a good time for employers to review their policies and procedures to ensure compliance with the requirements of the Genetic Information Nondiscrimination Act (GINA). On March 2, 2009, the Equal Employment Opportunity Commission (EEOC) published its proposed regulations for Title II of GINA in the Federal Register, initiating a 60-day comment period ending May 1, 2009.

GINA generally bars health insurers and employers from discriminating based on genetic information. President Bush signed GINA into law on May 21, 2008. Title I of GINA, which targets the use of genetic information in health insurance, amends the Employee Retirement Income Security Act, the Public Health Service Act, and the Internal Revenue Code. Title I takes effect for plan years beginning after May 21, 2009. Title II of GINA, covering employers with 15 or more employees, prohibits the use of genetic information in employment, prohibits the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements on employers.

Publication of final Title II regulations will occur by May 21, 2009, and Title II and its final regulations will become effective on November 21, 2009.

Under Title II, which includes an anti-retaliation provision, employers may not:

  • refuse to hire, fire, limit, segregate, classify, or otherwise discriminate, deny opportunities, or take adverse employment actions against an employee based on genetic information; or

  • request, require, or purchase genetic information about an employee or his or her family members, other than in the case of specific exceptions, such as meeting requirements for an FMLA certification.

In issuing its proposed regulations, the EEOC specifically seeks comments on three of the six exceptions to the prohibition against acquiring genetic information, relating to:

  • voluntary employer-provided wellness programs;

  • information gained through commercially and publicly available documents, including social networking and other Internet sites; and

  • law enforcement testing.

Genetic information generally includes results of genetic tests on the employee or his or her family members, as well as the manifestation of a disease or disorder in the employee's family members (family medical history). Title II utilizes most of the familiar procedures and remedies found in Title VII.

Employers should reevaluate their discrimination and harassment policies, medical and Family and Medical Leave Act (FMLA) certification forms, and other relevant policies and procedures to ensure GINA compliance. Although Title I of GINA is not subject to the proposed EEOC regulations, employers should also be aware of the prohibitions and requirements found in Title I, concerning health insurance, and their potential impact on employers.

Copyright © 2009 by Ballard Spahr LLP.
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