The EEOC has published proposed regulations relating to the Genetic Information Nondiscrimination Act of 2008 (“GINA”). GINA prohibits employers from discriminating against an employee or applicant based on genetic information. The definition of “genetic information” includes an “individual’s genetic tests, the genetic tests of family members of such individuals, and the manifestation of a disease or disorder in family members of such individual[s].” The deadline to submit comments to the EEOC regarding its proposed regulations is May 1, 2009.
The EEOC is currently accepting comments about its recently proposed regulations. Some valuable insight gleaned from the proposed regulations on the types of conduct which constitute examples of genetic discrimination from certain employers include:
- Asking applicants, directly or indirectly, for genetic information or require an employment agency to screen candidates with a family medical history for certain medical conditions;
- Reassignment of an employee whom it was learned had a family medical history of heart disease based upon a fear the position was too stressful and may eventually lead to heart-related problems for the employee;
- Employment decisions based upon knowledge of receipt of genetic services, even if the specific nature of the genetic services are not known to the employer;
- Failure to comply with the strict Family and Medical Leave Act (“FMLA”) and GINA recordkeeping requirements after an employer receives genetic information when an employee seeks leave under the FMLA.
The interaction between GINA and the Americans with Disabilities Act (“ADA”) will pose another challenge for employers. The EEOC’s proposed regulations provide some examples on how these laws will interact:
- GINA prohibits requesting, requiring, or purchasing genetic information during the ADA’s “interactive process” to determine an appropriate reasonable accommodation;
- The acquisition of genetic information as part of the documentation supporting leave as a reasonable accommodation under the ADA is considered inadvertent and thus not a violation of GINA, if the request for documentation was lawful;
- The ADA will allow an employer to obtain medical information from post-offer applicants. However, GINA will be violated if an employer obtains any genetic information, including family medical history, from post-offer applicants even if such genetic information was obtained for the purpose of determining continuous fitness for duty;
- While GINA prohibits inquiries into matters such as whether an employee has a family history of heart disease as part of an examination, the ADA permits employers to require a medical examination of all employees to whom a particular job has been offered to determine whether they have heart disease which would affect their ability to perform a physically demanding job.