Genetic Information Rule Enforcement Begins Today

Final rules for enforcement of Title II of the Genetic Information Non-discrimination Act (GINA) go into effect today.

Attorneys say occupational medicine providers must be cautious when responding to requests for medical information from employers who are trying to manage family or medical leave and job accommodation situations. Meanwhile, some providers are removing family medical history questions from medical forms filled out by patients in an effort to comply with the law.

Title II prohibits employment discrimination based on genetic information. It is the first legislative expansion of the Equal Employment Opportunity Commission’s (EEOC) jurisdiction since the Americans with Disabilities Act of 1990 (ADA) was enacted.

In other provisions relevant to occupational medicine practice, the EEOC rules interpret the law with regard to voluntary workplace wellness programs. (Refer to 75 Fed. Reg. 68912 at http://edocket.access.gpo.gov/2010/pdf/2010-28011.pdf). GINA allows employers to obtain genetic information in connection with a wellness program only under circumstances delineated in the regulations.

GINA prohibits employers from requesting genetic information about an employee, job applicant or family member. A request is broadly defined as asking for information about an individual’s health status in a way that is likely to result in obtaining genetic information, conducting an internet search, actively listening to third-party conversations and searching an individual’s personal effects to obtain genetic information.

Prior to issuing the final rules, the EEOC received a significant number of comments from employers who cited concerns about not having control over the information they receive from medical providers. Consequently, the final regulations include provisions protecting employers from liability and recommended language for standard medical request forms:

“(GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.” 

In the law, genetic information includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services and genetic information about a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving reproductive services.