EMPLOYMENT LAW ALERT

EEOC ISSUES HIGHLY-ANTICIPATED GENETIC INFORMATION NONDISCRIMINATION ACT (GINA) EMPLOYMENT REGULATIONS

On Wednesday, the U.S. Equal Employment Opportunity Commission (EEOC) proposed rules to implement the employment provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA). "The addition of genetic information discrimination to the EEOC's mandate is historic, and represents the first legislative expansion of the EEOC's jurisdiction since the Americans with Disabilities Act passed in 1990," said Acting EEOC Chairman Stuart J. Ishimaru.

GINA prohibits discrimination on the basis of genetic information in employment and health insurance. Specifically, the law prohibits: (1) unauthorized or required genetic testing of workers by employers and insurers; (2) employers from seeking out genetic information about employees; and, (3) employers from disclosing genetic information about employees and using genetic tests to discriminate against workers in hiring, firing, and other employment decisions. GINA's employment law provisions become effective November 21, 2009, while its health insurance benefits generally begin on May 21, 2009.

A 60-day public comment period for the new employment provisions commenced on February 25, 2009, and the EEOC has reported the notice of proposed rulemaking would be published in the Federal Register by Friday, February 27, 2009.

Included in the proposed regulations is a stipulation that employers will not be punished for neutral policies that have a disparate impact on employees with genetic diseases. Moreover, the final rules will clarify instances where employers "inadvertently acquire or disclose" genetic information and may be exempt from liability.

Regulations, rules, stipulations, and exemptions aside, GINA opens a brand new door to employee discrimination claims, and increased litigation is predicted by most. Prior to the November 21, 2009, effective date, employers should familiarize themselves with this new field of potential liability and carefully review and consider GINA's responsibilities and restrictions. At first glance, many employers will likely believe GINA will not influence their specific workplace and is very commonsense. Consider this: a manager who visits a sick employee in the hospital and learns the employee's malady has a genetic basis would not have obtained that information inadvertently.

The potential for inadvertent acquisition or disclosure is not implausible given GINA's definition of "genetic information," which includes "the manifestation of a disease or disorder in family members"; and, because GINA does not require a knowing acquisition or disclosure to support a claim. Employer advocates will certainly take advantage of the impending 60-day public comment period to attempt to further clarify many of these alarming concerns.

Basham Parker LLP will continue to provide updates related to the Genetic Information Nondiscrimination Act of 2008 as they develop. For additional information, please visit our website at http://rs6.net/tn.jsp?t=annspycab.0.0.rre7uhcab.0&ts=S0387&p=http%3A%2F%2Fwww.bashamparker.com%2F&id=preview.