EEOC's Proposed Rule Clarifies Title II of Genetics Law

By Allen Smith
03/02/2009

A March 2 proposed rule from the U.S. Equal Employment Opportunity Commission (EEOC) clarifies that some medical information that employers currently may obtain from employees will become off limits as of Nov. 21, 2009, when Title II of the Genetic Information Nondiscrimination Act (GINA) takes effect.

President Bush signed GINA into law on May 21, 2008, requiring the EEOC to issue regulations to implement Title II of the law within one year. Title II of GINA prohibits the use of genetic information in employment, restricts the deliberate acquisition of genetic information by employers, prohibits the use of genetic information in employment decision-making, requires that genetic information be kept confidential and strictly limits covered entities from disclosing genetic information.

However, a covered entity that inadvertently requests or requires family medical history from an individual does not violate GINA. Even though the language of this exception specifically refers to family medical history, the EEOC believes that Congress intended the exception to extend to any genetic information that an employer inadvertently acquires and to any situation where an employer might inadvertently acquire genetic information, not just overheard conversations between co-workers.

Examples of Inadvertent Acquisition

The proposed regulations provide an illustrative list of situations where the EEOC believes the acquisition of genetic information fits within the exception. In addition to conversations overheard by managers, these situations include where:

• A manager learns genetic information about an individual by receiving it from the individual or third parties without having sought the information.

• An individual provides genetic information as part of documentation to support a lawful request for reasonable accommodation.

• An employer requests medical information, other than genetic information, as permitted by federal, state or local law from an individual, who responds by providing genetic information.

• An individual provides genetic information to support a request for leave that is not governed by federal, state or local laws requiring leave, as long as the documentation complies with the requirements of the Americans with Disabilities Act (ADA).

• A covered entity learns genetic information about an individual in response to an inquiry about the individual’s general health; an inquiry about whether the individual has any current disease, disorder or pathological condition; or an inquiry about the general health of an individual’s family member.

A general inquiry about someone’s health would include simply asking someone, “How are you?” Title II of GINA also would not apply to genetic information that an employer learns about when a supervisor casually asks about the health of a parent or a child, such as simply inquiring, “How’s your son feeling today?”

Employers Cautioned

But the EEOC cautioned that employers should ensure that any medical inquiries they make or medical examinations they require are modified to comply with GINA’s requirements. The EEOC noted in particular that the ADA permits employers to obtain medical information, including genetic information, from job applicants after an offer of employment. When Title II of GINA takes effect in November 2009, that will change, according to the EEOC.

“Employers no longer will be permitted to obtain any genetic information, including family medical history, from post-offer applicants,” it emphasized. And it added that “employers likewise will be prohibited from obtaining this type of information through any type of medical examination required of employees for the purpose of determining continuing fitness for duty.”

By contrast, if an employer seeks information from an individual requesting reasonable accommodation under the ADA to verify that someone who does not have an obvious disability is covered by the law, the acquisition of genetic information as part of the documentation that the person provides is inadvertent, as long as the request for documentation wasn’t overly broad.

The EEOC acknowledged that other laws, including the Family and Medical Leave Act (FMLA), might let employers obtain medical information about employees. The inadvertent receipt of genetic information in connection with an employee’s return-to-work certification under the FMLA would not violate GINA, the federal enforcement agency noted.

That said, a request for an employee’s entire medical record or the entire medical record related to a particular impairment is likely to include family medical history and violate GINA, according to the agency.

The EEOC recommended that, in addition to complying with applicable EEOC guidance, employers take proactive measures to avoid the inadvertent acquisition of genetic information. As an example, it noted that an employer could ask specifically that an employee providing documentation about an ADA disability not provide family medical history or other genetic information.

The EEOC has requested comments on the proposed rule (RIN 3046-AA84) by May 1, 2009. Comments may be made by visiting www.regulations.gov.