EEOC Issues Genetic Information Nondiscrimination Act Final Regulations

Law Prohibits Using Genetic Information to Make Employment Decisions

The U.S. Equal Employment Opportunity Commission (EEOC) today issued final regulations implementing the employment provisions (Title II) of the Genetic Information Nondiscrimination Act of 2008 (GINA). GINA prohibits use of genetic information to make decisions about health insurance and employment, and restricts the acquisition and disclosure of genetic information. Title II of GINA represents the first legislative expansion of the EEOC's jurisdiction since the Americans with Disabilities Act of 1990.

The regulations were approved by a unanimous vote of the Commission, and include clarifications and refinements made in response to comments received during the notice and comment period. "The final regulations implementing GINA reflect the concerted effort by all Commissioners to ensure that workers, job applicants and employers will have clear guidance concerning the implementation of this new law. These regulations are also a testimony to the tireless work of the late Paul Steven Miller, who was a Commissioner of the EEOC and a leader in the movement to protect individuals against discrimination based on family medical history or genetic information for many years," said EEOC Chair Jacqueline A. Berrien. The GINA regulations are the first issued by the EEOC since Chair Berrien and Commissioners Chai R. Feldblum and Victoria A. Lipnic joined Commissioners Stuart J. Ishimaru and Constance Barker on the Commission in April, 2010.

Congress enacted GINA with strong bipartisan support in 2008, in response to concerns that patients would decline to take advantage of the increasing availability of genetic testing out of concern that they could lose their jobs or health insurance if such tests revealed adverse information. Title II of GINA prohibits employment discrimination based on genetic information, and restricts the acquisition and disclosure of genetic information. Genetic information includes information about individuals' genetic tests and the tests of their family members; family medical history; requests for and receipt of genetic services by an individual or a family member; and genetic information about a fetus carried by an individual or family member or of an embryo legally held by the individual or family member using assisted reproductive technology.

The final regulations provide examples of genetic tests; more fully explain GINA's prohibition against requesting, requiring, or purchasing genetic information; provide model language employers can use when requesting medical information from employees to avoid acquiring genetic information; and describe how GINA applies to genetic information obtained via electronic media, including websites and social networking sites.

"I am pleased that the new Commission was able to complete the GINA regulations and make some common-sense changes based on the public record," said EEOC Commissioner Victoria A. Lipnic. "While fulfilling the law's purpose to protect individuals from genetic discrimination, I believe these final regulations properly balance and reflect the needs and realities of the workplace and preserve the appropriate means for employers to offer health and wellness plans."

The Commission has also issued two question-and-answer documents on the final GINA regulations, one of which is aimed at helping small businesses comply with the law. Links to the regulations and to the questions-and-answers are on EEOC's website, at http://eeoc.gov/laws/types/genetic.cfm