Member Article

It's been a long time coming, but the EEOC has finally published the
official regulations for Title II of the Genetic Information
Nondiscrimination Act (GINA). (Title I addresses non-discrimination in
the context of health insurance, and regulations for that Title will be
issued by the Departments of Labor, Health and Human Services, and
Treasury.) GINA was originally  enacted on May 21, 2008, by, President
George W. Bush, and became effective November 21, 2009.

 

The EEOC issued proposed regulations in March 2009, and asked for public
comments. Forty-three comments were received, and, based on those
responses, the EEOC issued Final Regulations on November 9, 2010 (29
C.F.R. §§ 1635 et seq., published in the Federal Register, Vol. 75, No.
216 beginning at 68912). What follow are some of the highlights of the
new Regulations.

 

A GINA Primer

Broadly, GINA has three purposes: to prohibit discrimination on the
basis of genetic information, to restrict employer requests for such
information, and to limit the disclosure of genetic information by
employers. The introductory comments recognize that medical advancements
also give rise to "the potential misuse of genetic information to
discriminate in health insurance and employment."

 

For terms such as "employee" and "employer," as well as others common in
discrimination law, GINA adopts definitions found elsewhere in federal
law. Four new terms – genetic information, genetic monitoring, genetic
services, and genetic test – are defined without reference to other
statutes.

 

Sections 202 through 205 prohibit employers, employment agencies, labor
organizations and training programs, respectively, from discriminating
on the basis of genetic information, and make it unlawful for them to
request, require or purchase genetic information. Thereafter, GINA
provides a series of exceptions to the "request, require, or purchase"
prohibition, most of which are common to all of the sections.

 

Section 206 protects the confidentiality of genetic information,
limiting employers and others from disclosing that information except in
limited circumstances. Section 207 governs the remedies that are
available for GINA violations, again electing to adopt most of those
remedies from other statutes. It also includes an anti-retaliation
provision. Finally, Section 210 excludes the use, acquisition or
disclosure of non-genetic medical information from GINA coverage.

 

Definitions Finalized by the EEOC

"Covered Entity" Definition. The EEOC added a term, "covered
entity," which encompasses employers, employment agencies, labor
organizations and training programs. Since GINA contains several
provisions common to each of the above entities, the phrase helps to
streamline the Regulations. The EEOC dismissed some of the concerns
raised by public comments that employers would confuse this phrase with
its use in other statutes, such as the ADA or HIPPA.



"Manifestation" and "Manifested" Redefined. Information regarding
"manifested" conditions is not genetic information, and is therefore
excluded from GINA liability, under Section 210. Because genetic
information is frequently used as part of a diagnosis for some
illnesses, however, the line between genetic information and manifested
conditions was vague. The EEOC defined "manifestation" and "manifested"
to make clear that a "diagnosis" based solely on genetic information is
not a manifested condition. Where genetic testing is combined with other
symptoms or signs to result in a diagnosis, however, the condition is
considered "manifested" under GINA and the employer is exempted under
Section 210.

 

Good News for Employers

No individual liability for corporate employees. Although the
Regulations do not specifically speak to this point, the EEOC concluded
in its supplementary information that it was "not necessary" to
explicitly eliminate individual liability. Rather, GINA's adoption of
the "employer" definition from Title VII fulfills this purpose. As Title
VII's "employer" definition has been repeatedly held to not extend to
individual liability, GINA's definition of "employer" cannot encompass
individual liability.

 

Inadvertence Exception Extended. The first exception to the
"request, require or purchase" prohibition under GINA holds that no
violation occurs when an employer "inadvertently requests or requires
family medical history of the employer or family member of the
employer."  As written, the "inadvertence" exception covered only family
medical history. The EEOC determined, however, that "it is consistent
with Congress's intent to extend the exception to any genetic
information that an employer inadvertently acquires." Analogizing this
to "water cooler" conversation, the EEOC acknowledged that employers may
unwittingly learn about an individual's personal genetic testing in the
same way it might learn about an employee's personal or familial health
– in the course of casual conversation. Hence, it extended the
statutory protections to such situations.

 

"Safe Harbor" Provision Added. In conjunction with the
inadvertence exception discussed above, the EEOC provided language that
employers can include when requesting medical information. If included,
the language presumptively provides notice to those from whom
information is sought that the employer is not requesting genetic
information. If notice is given, but genetic information is still
supplied, employers are protected from being charged with a GINA
violation.

 

Health and Genetic Services. Recognizing that employers have a
strong interest in encouraging employee participation in health and
wellness programs, GINA includes an exception to the "request, require,
or purchase" prohibition when employees participate in employer-offered
programs. The EEOC Regulations conclude that, while written
authorization to participate in the programs may be accomplished
electronically, such authorization must be signed before an employee can
provide any genetic or family medical history. Additionally, the
wellness programs may provide employers with aggregate information
collected for the studies, although they are still prohibited from
accessing individual information. Finally, the EEOC clarified that these
programs must be inclusive – not only must they be open to people
regardless of genetic predispositions to certain problems, but also any
incentives provided in conjunction with these programs cannot be tied to
providing genetic information, and must be available to all.

 

Potential Problem Areas for Employers

No Specific Intent Requirement. The EEOC concluded that the
specific intent to acquire genetic information is not necessary to
violate GINA. Rather, employers can violate GINA simply by engaging in
activities where there is a heightened risk of acquiring genetic
information. Employers must therefore be very cautious to avoid
situations in which such information is expected to be more readily
available, and take proactive steps to avoid accidentally receiving
genetic information, such as warning employees not to include genetic
information when providing documentation of a manifested illness.

 

Former Employees Covered. GINA applies to both current and former
employees. The Regulations borrow their definition of "employee" from
Title VII, as interpreted by the Supreme Court in Robinson v. Shell Oil Co.,
and the EEOC therefore found that former employees are also to be
protected from discrimination arising from the former employee
relationship. As the purpose of GINA's Title II is to avoid
discrimination on the basis of genetic information, extending protection
beyond the end of employment would best further these means. The EEOC
explicitly refused to add a temporal qualifier to the inclusion of
"former employee," as the risk of discrimination on the basis of
immutable genetic information continues indefinitely.

 

Harassment Claims Are Cognizable. In the Regulations, the EEOC
affirmed that GINA's language and intent would allow employees to claim
harassment on the basis of genetic information (as well as to a variety
of other miscellaneous actions against labor unions, employment agencies
and training programs). The decision was based on the expansive
language used by Congress and adopted directly from Title VII,
evidencing a desire to broadly prohibit discrimination.

 

Retaliation Standard Defined. GINA also contains a specific
section preventing retaliation against an individual who opposes an
action that GINA identifies as unlawful. Although no specific standard
for retaliation is contained in GINA, the EEOC adopted the retaliation
standard from Title VII, previously approved by the Supreme Court in Burlington Northern & Santa Fe Ry. v. White.
Hence, the inquiry is whether a reasonable person would have found the
action taken to be "materially adverse," or "well might have dissuaded a
reasonable employee from making the charge of discrimination."

 

Conclusion

These new EEOC rules provide the first, but certainly not the last, word
on the meaning and application of GINA to employers. In essence, GINA
is a statute designed to plug holes in existing statutes as they relate
to anticipated problems in the field of genetic information.
Consequently, GINA adopts in large part definitions, remedies, and
standards previously developed in other areas of discrimination law.
Further, the EEOC was very careful in drafting its Regulations to avoid
conflicts with the application of other statutes, such as the ADA, FMLA,
Title VII, and others. Attorneys already familiar with these laws
should have little difficulty in understanding and applying the new EEOC
Regulations. Where ambiguities exist, reading GINA and the Regulations
in line with the overarching purpose of these background statutes should
guide counsel toward the proper interpretation.

For more information, please contact:

Jennifer S. Greenlief
304.720.4059
[email protected]

 

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