EEOC Releases Additional Guidance Documents on Final GINA Rule

The Equal Employment Opportunity Commission (EEOC) has posted on its website two new guidance documents on the recently published final rule implementing the employment provisions of the Genetic Information Nondiscrimination Act (GINA). Title II of GINA prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II, strictly limits the disclosure of genetic information, and prohibits retaliation against employees who complain about genetic discrimination. The first guidance document provides background information on the Title II rule, while the second focuses on questions that might arise for small businesses.  Both guidance materials are presented in question and answer format, and clarify many of the provisions contained in the final rule.

Among other things, both documents explain that Title II applies to private employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs, and discuss the protections afforded by the law, along with the statutory exceptions. The documents also shed light on the interplay between GINA and other anti-discrimination laws. Notably, the guidance discusses how discrimination against some genetic-based conditions, such as certain types of breast cancer, would not be covered under GINA, but could be prohibited under the Americans with Disabilities Act (ADA). The guidance explains that GINA “is concerned primarily with protecting those individuals who may be discriminated against because an employer thinks they are at increased risk of acquiring a condition in the future. Someone who is discriminated against because she actually has breast cancer or another condition would not be protected by GINA, even if the condition has a genetic basis.” The guidance notes that amendments to the ADA, however, would make it easier for an employee with such a condition to be considered “disabled” and thus protected from discrimination on this basis.

The Q&As also explain that while an employer may conduct a post-offer medical examination/inquiry or fitness-for-duty examination consistent with ADA requirements, GINA prevents the employer from requesting or requiring an individual to provide genetic information, including family medical history, during a medical examination related to employment. In addition, an employer must tell its health care providers in advance not to collect genetic information as part of an employment-related medical exam.

On the other hand, the guidance states that GINA includes an exception that permits an employer to acquire an employee’s family medical history as part of the certification process under the Family and Medical Leave Act (FMLA). According to the Q&As, such an exception to the prohibition on collecting an individual’s family medical history is needed when the employee is seeking leave to care for a family member with a serious health condition, since information about the manifestation of a disease or disorder is required as part of the FMLA (or analogous state or local leave law) certification process.

The guidance clarifies a number of other issues under the final rule, such as what an employer must do to comply with GINA when lawfully requesting health-related information; when an employer’s acquisition of genetic information would be deemed inadvertent and thus not unlawful; under what conditions may an employer conduct genetic monitoring to determine if employees are being affected by harmful substances in the workplace; and how Title II applies to employment decisions concerning the provision of health benefits. The Q&A documents also include model language provided in the final rule that an employer may use as a warning for employees not to provide genetic information when providing the employer with health-related information.

For more information on the final rule and its requirements, see Littler’s ASAP: EEOC Issues Long-Awaited Final Regulations on the Genetic Information Nondiscrimination Act.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.