Friday, November 20, 2009

Employer alert: EEOC now enforcing GINA

On November 20, 2009, the US Equal Employment Opportunity Commission (EEOC) reminded stakeholders that, in the first legislative expansion of its jurisdiction since passage of the Americans with Disabilities Act (ADA) in 1990, the federal agency will assume responsibility on November 21 for enforcing Title II of the Genetic Information Nondiscrimination Act (GINA).

GINA, signed into law in May 2008, prohibits discrimination by health insurers and employers based on individuals’ genetic information. Genetic information includes the results of genetic tests to determine whether someone is at increased risk of acquiring a condition (such as some forms of breast cancer) in the future, as well as an individual’s family medical history, the EEOC advises.

Specifically, GINA:

  • prohibits the use of genetic information in making employment decisions;

  • restricts the acquisition of genetic information by employers and others;

  • imposes strict confidentiality requirements; and

  • prohibits retaliation against individuals who oppose actions made unlawful by the statute, or who participate in proceedings to vindicate rights under the law, or aid others in doing so.
The federal agency also notes that the same remedies, including compensatory and punitive damages, are available under Title II of GINA as are available under Title VII of the Civil Rights Act and the Americans with Disabilities Act.

The EEOC is charged with issuing regulations implementing Title II of GINA. On March 2, 2009, it published a Notice of Proposed Rulemaking to implement Title II with proposed regulations and received over 40 public comments in response. The final regulations implementing Title II are currently under review by the Office of Management and Budget and will be issued as soon as the review process is concluded.

A brief sampling of some of the comments submitted on the EEOC’s proposed GINA regulations reveals the following concerns and suggestions:

  • The definition of “genetic information” may make GINA compliance complicated because it may be difficult to distinguish between genetic and other medical information in practice.

  • Physicians’ notes to confirm an illness or need for a reasonable accommodation should fall under the exception for inadvertent acquisition of genetic information because leave is requested informally in many small businesses.

  • The EEOC’s position that any genetic information obtained through a post-offer, pre-employment medical examination falls outside the exception for inadvertent acquisition of genetic information fails to distinguish between employers that receive genetic information that is unresponsive to a legitimate and narrowly tailored request, and employers that deliberately obtain such information.

  • The exception for commercially and publicly available information should include personal web pages and social networking sites because they, too, are publicly available.

  • Rather than using a public/private distinction, media sources should be divided based on access required or likelihood of containing genetic information, because that is more consistent with GINA’s prohibition against searching public data bases likely to contain genetic information.

  • The “water cooler” exception, for information volunteered or inadvertently overheard, should make clear that an employer’s probing questions or intentional information gathering do not fall under this exception.
In the meanwhile, employers should make sure they have posted the EEOC’s updated “EEO is the Law” poster.

And remember, the EEOC is watching!

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