EEOC publishes proposed genetic nondiscrimination regulations

By Barran Liebman,
Electronic Alerts

The EEOC issued proposed rules today that would implement Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”), which prohibits the use of genetic information in employment decisions and extends Title VII-type protections to applicants, employees, and former employees with respect to genetic information. GINA is scheduled to go into effect November 21, 2009, and specifically will:

1.    Prohibit employers from discriminating against an individual on the basis of genetic information;

2.    Restrict employers from deliberately acquiring genetic information from employees; and

3.    Mandate that genetic information be maintained as a confidential medical record, placing strict limits on the disclosure of genetic information.

While the proposed regulations generally incorporate definitions borrowed from Title VII, six key terms not found in any other employment discrimination statute are included: family member, family medical history, genetic information, genetic monitoring, genetic test, and manifestation or manifested. The EEOC is specifically seeking comments regarding the scope of these terms.

The proposed regulations provide that an employer or covered entity “may not request, require or purchase genetic information of an individual” except in six specific circumstances:

1.    Inadvertently requested or required genetic information;

2.    Employer-sponsored health or genetic services and voluntary wellness programs;

3.    OFLA/FMLA medical certifications;

4.    Commercially and publically available information;

5.    Genetic monitoring of the biological effects of toxic substances in the workplace; and

6.    Genetic information of employees handling DNA analyses for law enforcement purposes.

The EEOC is specifically inviting comments on the following areas of these exceptions:

1.    The scope of the term “voluntary” with respect to a “voluntary wellness program.”

2.    The scope of the “commercially and publicly available information” exception. The proposed regulation includes information available in newspapers, magazines, periodicals, books, and electronic media, including television and the internet, but prohibits employers from researching medical databases and court records, even where publicly and commercially available. The EEOC specifically invites comment on whether the sources listed are appropriate and whether there are other sources that should be included either in the group of excepted sources or the group of prohibited sources, such as personal websites and social networking sites.

3.    The impact of the DNA analysis exception on law enforcement.

Comments regarding the proposed regulations must be submitted to the EEOC by May 1, 2009. To view the proposed regulations, including instructions on submitting comments, please visit:


Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. If this has been forwarded to you, and you would like to begin receiving Electronic Alerts directly, please call Traci Hopfe at 503-276-2115 or email [email protected]. Copyright © 2009 by Barran Liebman LLP

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