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Sunday, December 12, 2010

The Genetic Information Nondiscrimination Act (GINA): Final Employment Regulations

Nancy Lee Jones
Legislative Attorney

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits discrimination based on genetic information by health insurers and employers. GINA is divided into two main parts: Title I, which prohibits discrimination based on genetic information by health insurers; and Title II, which prohibits discrimination in employment based on genetic information. Title II of GINA prohibits discrimination in employment because of genetic information and, with certain exceptions, prohibits an employer from requesting, requiring, or purchasing genetic information. The law prohibits the use of genetic information in employment decisions—including hiring, firing, job assignments, and promotions—by employers, unions, employment agencies, and labor management training programs and mandates confidential treatment of any genetic information that is obtained.

The Equal Employment Opportunity Commission (EEOC) promulgated final regulations under Title II of GINA on November 9, 2010. The EEOC noted that the regulations closely track the statutory language but they do provide clarification regarding definitions in GINA; provide guidance regarding the exceptions in GINA to employer liability for acquiring genetic information; discuss the application of GINA to wellness programs; and discuss the interplay between GINA and other statutes. The regulations also provide specific examples to help clarify the requirements of the statute and regulations. For instance, the regulations clarify that a genetic test includes a test to determine whether an individual has a BRCA1 or BRCA2 variant which would indicate a predisposition to breast cancer, and would include preimplantation genetic diagnosis in embryos. The regulations also specifically state that a test for cholesterol levels is not a genetic test. Similarly, the regulations provide a definition of manifested disease, and note that when the diagnosis of a disease depends on both signs and symptoms and genetic information, the disease will be considered manifested. It was emphasized, however, that medical information is still subject to other laws, such as Title I of the Americans with Disabilities Act (ADA), which regulates the acquisition and use of medical information.

GINA and its regulations prohibit the collection of genetic information by employers but do provide some exceptions. The question of how the EEOC would interpret GINA’s application to employer-run wellness programs was highly anticipated. In the final regulations, the EEOC concluded that inducements may be offered to encourage individuals to participate in wellness programs, but inducements may not be offered to provide genetic information. However, the EEOC does not permit a covered entity to request genetic information in order to evaluate whether an employee or applicant is able to safely and effectively perform the job. This is in contrast to the ADA as interpreted by the Supreme Court in Chevron v. Echazabal, where the Court found no violation of the ADA when an employer refused to hire an individual whose health would be endangered by the job. This issue may become more problematic as genetic information becomes more widely used.

Generally, the EEOC GINA regulations provide significant guidance to employers, especially in the use of examples, and in the clarification of GINA’s applicability to wellness programs. However, due to the lack of decided cases and the ever-changing science, there is still some uncertainty concerning GINA’s exact parameters

Date of Report: December 9, 2010
Number of Pages: 15
Order Number: R41527
Price: $29.95

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