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Meeting of February 25, 2009 - on Notice of Proposed Rulemaking Implementation of Title II of the Genetic Information Non-Discrimination Act of 2008

Statement of Rae T. Vann
General Counsel
Equal Employment Advisory Council

Acting Chair Ishimaru, Acting Vice Chair Griffin, Commissioners Earp and Barker, on behalf of the Equal Employment Advisory Council (EEAC), I would like to thank you for inviting EEAC to participate in the February 25, 2009 meeting regarding the EEOC’s anticipated Notice of Proposed Rulemaking (NPRM) implementing Title II of the Genetic Information Nondiscrimination Act (GINA).

I have prepared the following preliminary talking points to give you a sense as to the issues I intend to raise during Wednesday’s meeting. I expect that my oral testimony and any subsequently prepared written remarks will encompass the points outlined below.

As a general observation, to the extent that employment discrimination on the basis of genetic discrimination has not been a pervasive problem, the EEOC should point out in its implementing regulations that the aim of the law is to prevent a discrimination problem from developing, and its regulations should be “user-friendly,” designed to provide clear and practical examples of both prohibited conduct and employer best practices. Also, to the extent that Titles I and II of GINA use the same definitions of key terms like “genetic information,” “genetic test,” and “family member,” we encourage the EEOC to coordinate with the DOL, the IRS, and HHS in finalizing its regulations so as to avoid any confusion that might result from conflicting definitions.

Specific Recommendations

“Family members” as defined in GINA include relatives of the first, second, third and fourth degree. GINA § 201(3)(B). This language is somewhat narrower than earlier versions of the law, which defined “family members” as “all persons related by blood” to the employee or to the employee’s spouse or child. The EEOC’s implementing regulations should provide guidance as to what these degrees of relationship mean.

GINA does not permit claims under a disparate impact theory (§ 208). Accordingly, the EEOC’s regulations should make clear that any claim that an employer violated the “limit, segregate or classify” provision would have to include evidence that the employer did so intentionally.

GINA makes it a separate unlawful practice for an employer to “request, require, or purchase” genetic information about an applicant or employee. There are six very limited exceptions to this prohibition. With respect to the “inadvertent requests” exception (§ 202(b)(1)), the regulations should clarify that this exception applies not only to casual, “water cooler” office discussions, but also any time an employee volunteers genetic information without prompting by the employer.

As to the “employer health services” exception (§ 202(b)(2)), the regulations should make clear that it applies to any health services provided by the employer including, for instance, on-site wellness centers and/or medical facilities.

Section 202(b)(3), the FMLA medical certifications exception, allows an employer to request genetic information of an employee or family member as part of the FMLA medical certification process, or as part of a similar process under state law. The EEOC regulations should point out that such requests always will fall within this GINA exception.

In explaining the “publicly available information” exception (§ 202(b)(4)), the EEOC regulations should provide practical illustrations of how it would apply. One example might describe a manager who buys and reads a weekly news magazine that includes a story on genetic markers, in which an employee is quoted as having tested positive for such a marker.