EEOC Considers GINA Implementation Regulations
The US Equal Employment Opportunity Commission’s (EEOC) regulations implementing the Genetic Information Non-Discrimination Act of 2008 (GINA) should provide clear, real-world examples of how the employment provisions actually operate, a panel of experts said on February 25, 2009. GINA, signed into law by President Bush on May 21, 2008, mandates that the EEOC issue regulations implementing the employment provisions of the new law.
At a meeting coinciding with the opening of a 60-day public comment period on its Notice of Proposed Rulemaking (NPRM) implementing GINA’s employment provisions, the EEOC was also urged to be flexible in the wake of scientific and technological developments.
The EEOC has until May 21 to issue the new regulations. GINA prohibits the use of genetic information in employment, prohibits the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements.
"The addition of genetic information discrimination to the EEOC’s mandate is historic, and represents the first legislative expansion of the EEOC’s jurisdiction since the Americans with Disabilities Act passed in 1990," said Acting EEOC Chairman Stuart J. Ishimaru. "We welcome the opportunity to implement important provisions of this landmark legislation, and to expand the promise of equal opportunity in the workplace for everyone."
Practical examples. Rae Vann, general counsel of the Equal Employment Advisory Counsel, urged the EEOC to develop regulations that were user-friendly, and "designed to provide clear and practical examples of both prohibited conduct and employer best practices." She noted that since employment discrimination on the basis of genetics has not been a pervasive problem, the EEOC should state in its implementing regulations that the aim of the law is to prevent a discrimination problem from developing.
Water cooler exception. Other panelists called for clarity on the inadvertent acquisition of genetic information, the so-called ‘water cooler’ exception. Jeremy Gruber, president of the Council for Responsible Genetics, noted that while the exception protects an employee who spontaneously volunteers family information, it isn’t clear how the exception applies when an employer begins asking probing questions that may not necessarily be considered innocent.
Wellness programs. Gruber also pointed out that while GINA allows employers to ask for genetic information as part of a company wellness program as long as it is voluntary, it is unclear at what point the voluntary requirement is met. Susannah Baruch, Law and Policy Director of the Pew Genetics and Public Policy Center at Johns Hopkins University, agreed that the NPRM should handle wellness programs carefully, particularly ones that impose substantial financial penalties and higher deductibles on participants.
Dovetailing with other laws. The EEOC was also urged to look at the interaction between the GINA rules and other workplace non-discrimination laws like the Americans with Disabilities Act and the Rehabilitation Act. Andrew Imparato, president of the American Association of People with Disabilities, called on the EEOC to read the laws in a way that provides "seamless protection" for people with genetic abnormalities who are both symptomatic and asymptomatic.
Q&A document. In conjunction with its NPRM, the EEOC has issued a question and answer document (Q&A) entitled: Background Information for EEOC Notice of Proposed Rulemaking On Title II of the Genetic Information Nondiscrimination Act of 2008. The Q&A is posted on the agency’s website at http://www.eeoc.gov/policy/docs/qanda_geneticinfo.html EXE: http://www.eeoc.gov/policy/docs/qanda_geneticinfo.html . The EEOC expects its proposed regulations to be published in the Federal Register on or about February 26, 2009.
Reprinted with permission. © CCH
(Submitted Feb. 28, 2009)
<p>EEOC Considers GINA Implementation Regulations The US Equal Employment Opportunity Commission’s (EEOC) regulations implementing the Genetic Information Non Discrimination Act of 2008 (GINA) should provide clear, real world examples of how the employment provisions actually operate, a panel of experts</p>