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GINA Is Here, But Where Is The EEOC’s Guidance? |
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The employment-related prohibitions of the Genetic Information Nondiscrimination Act (GINA) took effect November 21, 2009. However, despite assurances from the EEOC that final regulations implementing these employment provisions would be ready well in advance, we are still waiting. At this writing in March 2010, the Office of Management and Budget has decided to extend its review of the EEOC’s proposed GINA regulations, and is not projecting when the EEOC will be able to publish its final rules. To the extent the EEOC’s proposed regulations can be looked to for guidance regarding what the final regulations will say, they do clean up some ambiguities in the statute, but they create others. For example, the statute prohibits employers from acquiring “genetic information” from employees except under limited circumstances. The proposed regulations largely repeat the statutory definition of “genetic information” as including not only genetic tests of the employee and the employee’s family members, but also “the manifestation of disease or disorder in family members.” The regulations specify that this latter category concerning family members means employers may not, except for narrow and specific purposes, request any family medical history. One of the limited purposes for which family medical history may be requested, as foreshadowed by the statute, is family medical history needed to certify a leave under the Family and Medical Leave Act. The proposed regulations severely restrict another purpose referenced in the statute — voluntary wellness programs. These programs are increasingly popular with employers struggling to limit health insurance costs, and usually provide financial incentives (such as lower premiums) to encourage employees to participate. Participation almost always involves a health risk assessment that depends largely on family medical histories concerning diseases with genetic links, such as certain cancers. The limitations in the proposed regulations regarding when the wellness program exception will apply are so numerous and stringent as to raise valid concerns over whether any wellness plan that includes financial incentives will survive GINA’s prohibitions. The proposed regulations also signal a need for employers to review personnel files to ensure that any genetic information already collected is segregated into a separate confidential file. Historically, many employers — particularly in manufacturing — required annual physical exams that included extensive family medical histories. Over the years, much of this “genetic information” has languished in personnel files, a practice that is now prohibited under GINA. The EEOC’s proposal does offer some helpful guidance on the “inadvertent” exception (colloquially known as the “water cooler” exception) for acquiring genetic information. As currently proposed by the EEOC, this exception would apply where (1) the employer overhears a conversation concerning genetic information between the employee and others; (2) the employee provides unsolicited information; (3) the employee is responding to a general inquiry about his or her own or a family member’s general health; or (4) the employer requests medical information permitted by law and the employee includes genetic information as part of his or her response. Even in the absence of the EEOC’s regulations, employers should be aware that, as of November 21, 2009, GINA officially applied to them. This interim period, as we await final regulations, is a good time to review employee handbooks, policies, and personnel files, and to determine where revisions and training may be necessary. The EEOC has revised its “EEO Is The Law” poster to include GINA information. Employers can order or print the new poster at www.eeoc.gov. Julia Turner Baumhart |
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