The Equal Employment Opportunity Commission has proposed regulations implementing the employment provisions (Title II) of the Genetic Information Nondiscrimination Act of 2008. The law prohibits discrimination against job applicants and current and former employees based on their genetic information.
Since the definition of “genetic test” referred to terms outside its expertise and not common to employment discrimination law, the EEOC says it relied on technical assistance from the National Human Genome Research Institute in developing that definition in the regulations. The proposed definition of “genetic information” includes “information from genetic tests, the genetic tests of family members, family medical history, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services. Genetic information also includes information about an individual's or family member's request for or receipt of genetic services.” Information about an individual's or family member's age or gender is excluded from coverage.
The proposed rules prohibit employers from requesting or otherwise obtaining genetic information from applicants or employees, but recognize that there are exceptions: where an employer “inadvertently acquires family medical history” via casual conversations with workers, or receives unsolicited messages from workers that includes genetic information. Health or genetic services as part of voluntary wellness programs, information obtained for leave under the Family and Medical Leave Act, commercially and publicly available information, genetic monitoring due to toxic substance exposure in the workplace, and DNA testing for law enforcement or human remains identification purposes are other exceptions. The EEOC notes, however, that covered entities are prohibited from using the genetic information to discriminate, even though obtaining the information falls under the exceptions.
Comments are being solicited on the proposed regulations, which will be received for 60 days from the proposed rules’ publication in the Federal Register. EEOC has issued a Q & A providing background information on its proposed regulations.
