SHRM: Proposed Genetic Non-Discrimination Rules Need Clarifying

By Bill Leonard May 8, 2009

A proposed set of regulations for the employment title of the Genetic Information Nondiscrimination Act (GINA) needs to clarify how genetic information differs from general medical information and to define how genetic information is provided voluntarily by employees, according to comments submitted by several employer-related groups, including the Society for Human Resource Management (SHRM).

The Equal Employment Opportunity Commission (EEOC) proposed the regulations governing Title II or the employment provision of GINA and published the proposal on March 2, 2009, in the Federal Register. The 60-day comment period for the proposal ended on May 1, 2009, and SHRM joined with several other business groups, including the U.S. Chamber of Commerce, the National Federation of Retailers and Associated Builders and Contractors Inc., to submit comments and suggestions on ways to improve and clarify the proposed rules.

In the comments, the groups expressed concern that the proposed regulations need clarification on several provisions and that the EEOC should avoid “an overly broad regulatory framework” that could result in “serious and negative consequences for employers.”

President George W. Bush signed GINA into law (P.L. 110-233), on May 21, 2008. Title II of the law prohibits employers from making employment decisions that discriminate against individuals based on genetic information. In addition, the employment provision bars employers from requesting, requiring or purchasing genetic information of an employee or an employee’s family member.

SHRM and the other associations urged the EEOC to clarify that the law would apply only in situations when an employer intentionally requests, requires or purchases genetic information. The groups asked that violations of GINA should not include situations involving employees who willingly volunteer information or employers that inadvertently find genetic information relating to employees or their families.

According to the statute, Title II of GINA is set to take effect in November 2009, 18 months after the legislation was signed into law. Federal agencies must review written comments on proposed rules before issuing the final regulations. However, according to the law, the EEOC is charged with issuing regulations for the employment provision of GINA by May 21, 2009. Officials with the EEOC are aware of the time frame to issue the final rules and state that federal law requires them to follow a set of procedures before releasing any final regulations.

“We are well along in that process, and the final regulations will be issued well in advance of the November effective date for Title II of the law,” said Christopher J. Kuczynski, an assistant legal counsel for the EEOC.

Bill Leonard is senior writer for SHRM Online.

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