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Regulating Genetic Bias
The Equal Employment Opportunity Commission is seeking public comment as part of its rulemaking process to implement employment provisions of the Genetic Information Nondiscrimination Act, which was signed into law in May 2008. "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 at a hearing on February 25 that presented the proposed rules.
Water-Cooler Exception The regulations, which implement Title II of GINA, prohibit employment discrimination -- as defined under Title VII -- based on an employee's or job applicant's genetic information. Unlike Title VII, GINA does not permit claims for disparate impact. However, a commission will study the issue in 2014 and make recommendations. The regulations also restrict employers, including federal agencies and unions, from collecting certain types of medical information through genetic tests or family histories. Most of the proposed guidelines address situations when an employer inadvertently obtains prohibited information -- the so-called "water cooler" exception. The regulations include GINA-specific definitions of family member, family medical histories, genetic information and tests, allowable medical (but not genetic) information, and "manifestation of a disease." All are important in deciding whether information being requested in a medical exam is prohibited under GINA. The ADA permits employers to obtain medical information, including genetic information, from post-offer job applicants. As of Nov. 21, 2009, employers no longer will be permitted to obtain any genetic information, including medical history, from post-offer applicants. Employers also will be prohibited from obtaining this type of information through a fitness-for-duty medical exam. Karen S. Elliott, an attorney with Gregory Kaplan, testifying on behalf of the Society for Human Resource Management at the hearing, said that "the interplay of GINA, the ADA and HIPAA [Health Insurance Portability and Accountability Act] creates significant complexities for HR professionals," according to Alexandria, Va.-based SHRM. Involuntary acquisition of genetic information, she said, must be treated differently than the purposeful capture of such information for discriminatory purposes. The fear of genetic bias has created workers to act contrary to their best interests, said Susannah Baruch, law and policy director of the Pew Genetics and Public Policy Center at Johns Hopkins University in Baltimore. "We know that in the past," said Baruch at the hearing, "patients have passed up genetic testing that could benefit their health and have gone to great lengths to keep genetic information secret -- even from their own doctors. "With the passage of GINA and its implementation, we welcome a new era," she said. "There are many factors an individual may consider in deciding whether to take a genetic test, but the fear of discrimination must not be one of them."
Exceptions The rules do provide for six exceptions to the prohibition on collecting or using genetic information: * Involuntary acquisition of or request for the family medical history of the employee. But even this information cannot be used to discriminate in employment decisions. In the preamble to the regulations, the EEOC recommends that covered employers should take measures to avoid even the inadvertent acquisition of genetic information. If asking an employee to have a doctor provide documentation about a disability to support a request for an accommodation, ask the doctor not to include family medical history or other genetic information. * In support of a Family and Medical Leave Act request. Employees requesting FMLA leave to care for a sick relative may disclose family medical history when completing the certification. This information should not violate GINA, but still must be placed in a separate medical file and treated as a confidential record. Unlike private employers, federal agencies should not be affected by stricter state or local FMLA requirements. * For use in voluntary wellness programs. EEOC requests comments on how "voluntary" should be defined. * Through documents that are publicly and commercially available (e.g., newspapers). * Genetic monitoring of toxic substances. * DNA collection for law enforcement purposes or human remains identification. Noncompliance remedies and rights are basically the same as those available for Title II violations. That means federal employees must exhaust all administrative remedies and meet all applicable time frames for filing complaints against federal sector employers. Punitive damages are not available against federal agencies. Elliott asked the EEOC to provide employers with guidance "on situations that do not fall squarely into the exceptions enumerated in the statute," according to SHRM.
Next steps Comments will be accepted for the next 60 days. "GINA is an important piece of legislation," said Acting Vice Chair Christine Griffin, noting that "public comment ... is a critical part of [the rulemaking] process." Andrew Imparato, president of the American Association of People with Disabilities, called on the EEOC to work with other agencies to provide training and outreach on GINA. Griffin also favored that idea, with an emphasis on improving the understanding of the interaction between GINA and other workplace discrimination laws such as the ADA or the Health Insurance Portability and Accountability Act.
March 2, 2009 Copyright 2009© LRP Publications |
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