[Federal Register Volume 75, Number 216 (Tuesday, November 9, 2010)]
[Rules and Regulations]
[Pages 68912-68939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-28011]
[[Page 68911]]
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Part III
Equal Employment Opportunity Commission
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29 CFR Part 1635
Regulations Under the Genetic Information Nondiscrimination Act of
2008; Final Rule
Federal Register / Vol. 75 , No. 216 / Tuesday, November 9, 2010 /
Rules and Regulations
[[Page 68912]]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1635
RIN [3046--AA84]
Regulations Under the Genetic Information Nondiscrimination Act
of 2008
AGENCY: Equal Employment Opportunity Commission.
ACTION: Final rule.
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SUMMARY: The Equal Employment Opportunity Commission (``EEOC'' or
``Commission'') is issuing a final rule to implement Title II of the
Genetic Information Nondiscrimination Act of 2008 (``GINA''). Congress
enacted Title II of GINA to protect job applicants, current and former
employees, labor union members, and apprentices and trainees from
discrimination based on their genetic information. Title II of GINA
requires the EEOC to issue implementing regulations. The Commission
issued a proposed rule in the Federal Register on March 2, 2009, for a
sixty-day notice and comment period that ended on May 1, 2009. After
consideration of the public comments, the Commission has revised
portions of both the final rule and the preamble.
DATES: Effective January 10, 2011.
FOR FURTHER INFORMATION CONTACT: Christopher J. Kuczynski, Assistant
Legal Counsel, or Kerry E. Leibig, Senior Attorney Advisor, at (202)
663-4638 (voice) or (202) 663-7026 (TTY). (These are not toll free
numbers.) This rule also is available in the following formats: large
print, Braille, audio tape, and electronic file on computer disk.
Requests for this rule in an alternative format should be made to the
Publications Information Center at 1-800-669-3362 (voice) or 1-800-800-
3302 (TTY).
SUPPLEMENTARY INFORMATION:
Introduction
On May 21, 2008, President George W. Bush signed the Genetic
Information Nondiscrimination Act of 2008 (``GINA''), Public Law 110-
233, 122 Stat. 881, codified at 42 U.S.C. 2000ff et seq., into law.
Congress enacted GINA in recognition of, among many achievements in the
field of genetics, the decoding of the human genome and the creation
and increased use of genomic medicine. As Congress noted, ``New
knowledge about genetics may allow for the development of better
therapies that are more effective against disease or have fewer side
effects than current treatments. These advances give rise to the
potential misuse of genetic information to discriminate in health
insurance and employment.'' GINA Section 2(1), 42 U.S.C. 2000ff, note.
Experts predict that the twenty-first century will see tremendous
strides in the new field of genomic medicine, bringing it into
mainstream medical practice. The National Human Genome Research
Institute (NHGRI), the institute within the National Institutes of
Health responsible for the mapping of the human genome, notes that ``by
identifying the genetic factors associated with disease, researchers
may be able to design more effective drugs; to prescribe the best
treatment for each patient; to identify and monitor individuals at high
risk from disease; and to avoid adverse drug reactions.'' NHGRI, The
Future of Genomic Medicine: Policy Implications for Research and
Medicine (Bethesda, Md. Nov. 16, 2005), available at http://www.genome.gov/17516574 (last visited July 7, 2010).
Many genetic tests now exist that can inform individuals whether
they may be at risk for developing a specific disease or disorder. But
just as the number of genetic tests increases, so do the concerns of
the general public about whether they may be at risk of losing access
to health coverage or employment if insurers or employers have their
genetic information. Congress enacted GINA to address these concerns,
by prohibiting discrimination based on genetic information and
restricting acquisition and disclosure of such information, so that the
general public would not fear adverse employment- or health coverage-
related consequences for having a genetic test or participating in
research studies that examine genetic information. Scientific advances
require significant cooperation and participation from members of the
general public. In the absence of such participation, geneticists and
other scientists would be hampered in their research, and efforts to
develop new medicines and treatments for genetic diseases and disorders
would be slowed or stymied.
GINA Title I's health coverage provisions apply to group health
plans sponsored by private employers, unions, and state and local
government employers; issuers in the group and individual health
insurance markets; and issuers of Medicare supplemental (Medigap)
insurance.\1\ These Title I provisions generally prohibit
discrimination in group premiums based on genetic information and the
use of genetic information as a basis for determining eligibility or
setting premiums in the individual and Medigap insurance markets, and
place limitations on genetic testing and the collection of genetic
information in group health plan coverage, the individual insurance
market, and the Medigap insurance market. Title I also requires the
Secretary of Health and Human Services to revise the privacy
regulations promulgated pursuant to the Health Insurance Portability
and Accountability Act of 1996 (HIPAA). HHS has published a notice of
proposed rulemaking that proposes to clarify that genetic information
is health information, and to prohibit group health plans, health
insurance issuers (including HMOs), issuers of Medicare supplemental
policies, and all other health plans covered under the HIPAA privacy
regulations from using or disclosing genetic information for
underwriting purposes.
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\1\ This regulation does not interpret the requirements of GINA
Title I relating to genetic nondiscrimination in health coverage.
Those requirements are administered by the Departments of Health and
Human Services, Labor, and the Treasury.
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Title II of GINA prohibits use of genetic information in the
employment context, restricts employers and other entities covered by
Title II from requesting, requiring, or purchasing genetic information,
and strictly limits such entities from disclosing genetic information.
The law incorporates by reference many of the familiar definitions,
remedies, and procedures from Title VII of the Civil Rights Act of
1964, as amended, and other statutes protecting federal, state, and
Congressional employees from discrimination.\2\
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\2\ Prior to November 21, 2009, Executive Order 13145 prohibited
federal executive branch agencies from discriminating against
applicants and employees on the basis of genetic information and
limited access to and use of genetic information. Since its
effective date in November 2009, GINA has protected federal
employees from genetic discrimination.
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Background
The Commission published a proposed rule to implement Title II of
GINA on March 2, 2009, and asked for public comment on the proposed
rule, the discussion in the preamble, and other Title II issues not
addressed in either document. See 74 FR 9056 (March 2, 2009). Several
days earlier, on February 25, 2009, the Commission held a public
meeting to announce its approval of the proposed rule at which invited
panelists spoke about the impact of genetic information discrimination
in the workplace (transcript available at http://www.eeoc.gov/eeoc/meetings/2-25-09/index.cfm). Although they had not had an opportunity
to review the
[[Page 68913]]
proposed rule, commenters at the public meeting did express their views
on issues they believed should be addressed in EEOC's regulation to
effectuate Title II's purposes.
The Commission received 43 comments from individuals, from groups
representing individuals, and from organizations representing employers
and professionals in response to the proposed rule. Most of those who
participated in the February 25, 2009 public meeting submitted written
comments after reviewing the proposed rule that were consistent with
their public testimony. Further, on March 26, 2010, President Obama
appointed to the Commission by way of recess appointments the Chair and
two new Commissioners. These new members of the Commission (and others
who were previously serving on the Commission) met with a number of
stakeholders who had submitted comments to the record. Records of these
meetings are included in the rulemaking docket.
In developing this regulation, the Commission closely followed the
terms of the statute. The Commission's goal is to implement the various
provisions of Title II consistent with Congress's intent, to provide
some additional clarification of those provisions, and to explain more
fully those sections where Congress incorporated by reference
provisions from other statutes. For example, where GINA section
201(2)(A)(i) defines employee by reference to Title VII of the Civil
Rights Act of 1964 and other statutes, this regulation expands on that
reference by importing language from these statutes so that those using
the final regulation need not refer to other sources when determining
the scope of GINA's coverage.\3\
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\3\ Unless otherwise noted, use of the term ``GINA'' means
``Title II of GINA.'' When needed for clarity, the preamble will
refer to Title I of GINA or Title II of GINA.
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The Commission also recognizes that Title II of GINA includes terms
that are outside the areas of its expertise. In particular, the
definition of ``genetic test'' refers to ``analysis of human DNA, RNA,
chromosomes, proteins, or metabolites that detects genotypes,
mutations, or chromosomal changes.'' None of these terms is common to
employment discrimination law. For this reason, Commission staff sought
and obtained technical assistance from NHGRI, the institute within the
National Institutes of Health responsible for decoding the human genome
and for developing technologies applicable to the study of the genetic
components of complex disorders.
The Commission also coordinated with the Departments of Labor
(DOL), Health and Human Services (HHS), and the Treasury, which have
responsibility for issuing regulations applicable to GINA Title I. In
particular, DOL (the Employee Benefits Security Administration), HHS
(the Centers for Medicare & Medicaid Services), and the Treasury (the
Internal Revenue Service) are responsible for issuing regulations
applicable to GINA sections 101-103.\4\ These agencies issued interim
final rules on sections 101 through 103 of GINA on October 7, 2009. See
74 FR 51664. The HHS Office for Civil Rights is responsible for issuing
the regulations applicable to GINA section 105 and issued a proposed
rule on October 7, 2009 at 74 FR 51698. Among the various Title II
provisions are several that address the relationship between Title I
and Title II, and the relationship between Title II and several
statutes that the Departments enforce, including the Employee
Retirement Income Security Act of 1974 (ERISA), the Public Health
Service Act, the Internal Revenue Code, and HIPAA.
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\4\ The National Association of Insurance Commissioners issued
conforming model regulations relating to section 104 on September
24, 2008, published in the Federal Register on April 24, 2009 at 74
FR 18808.
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Section-by-Section Analysis of the Regulation
Section 1635.1 Purpose
In this section, the Commission sets forth the general purposes of
GINA. The language in this section of the final rule has been modified
slightly in response to several comments that disagreed with the
characterization of Title II as prohibiting the ``deliberate
acquisition'' of genetic information. See Comments of the American
Civil Liberties Union (ACLU), Coalition for Genetic Fairness (CGF),
Genetic Alliance, and the Genetics and Public Policy Center in
collaboration with Jeremy Gruber (GPPC). These organizations noted that
the term ``deliberate acquisition'' suggested that a covered entity
must have a specific intent to acquire genetic information in order to
violate the law. According to these commenters, a covered entity
violates GINA by engaging in acts that present a heightened risk of
acquiring genetic information, even without a specific intention to do
so, such as when they fail to inform an individual from whom they have
requested documentation about a manifested disease or disorder not to
provide genetic information or when they access sources of information
(e.g., certain types of databases, Web sites, or social networking
sites) that are likely to contain genetic information about
individuals.
For reasons more fully set forth in the preamble's discussion of
1635.8(a), (b)(1) and (4), the Commission agrees that a covered entity
may violate GINA without a specific intent to acquire genetic
information. For that reason, the Commission has removed the reference
to ``deliberate acquisition'' of genetic information in 1635.1. We
likewise recognize that not every acquisition of genetic information
violates GINA. Accordingly, the section now simply indicates that Title
II of GINA restricts requesting, requiring, or purchasing genetic
information. The rest of the language of 1635.1 concerning GINA's
prohibition on the use of genetic information in employment decision-
making, the requirement that genetic information be kept confidential
(which includes maintaining written genetic information that exists in
paper or electronic form as a confidential medical record), and the
limitations on disclosure of genetic information is the same as the
language in the proposed rule.
We have also modified this section to include a point made only in
the preamble to the proposed rule. A new subparagraph, 1635.1(b),
clarifies that the final rule does not apply to actions of a covered
entity that do not pertain to an individual's status as an employee,
member of a labor organization, or participant in an apprenticeship
program. The final rule offers two examples to illustrate this point.
Title II of GINA would not apply to a medical examination of an
individual conducted for the purpose of diagnosis and treatment
unrelated to employment, which is conducted by a health care
professional in the hospital or other health care facility where the
individual is an employee. Similarly, Title II would not govern the
actions of a covered entity carried out in its capacity as a law
enforcement agency investigating criminal conduct, even where the
subject of the investigation is also an employee of the covered entity.
Section 1635.2 Definitions--General
The Commission reiterates the definitions set forth in GINA section
201, many of which come from Title VII of the Civil Rights Act of 1964.
However, where the statute merely incorporates by reference different
categories of covered employees, the regulation describes more fully
the employees GINA protects. We have retained without change language
from the proposed rule which said that the term ``employee'' also
includes former
[[Page 68914]]
employees. We received two comments raising concerns with this
inclusion. The Illinois Credit Union League (ICUL) suggested that there
should be a temporal qualifier on the term ``former employee,'' while a
comment jointly submitted by the U.S. Chamber of Commerce, the Society
for Human Resource Management and a number of other employer
representatives (Chamber/SHRM) objected that our citation to Robinson
v. Shell Oil Co., 519 U.S. 337, 346 (1997), did not support the
proposition that the term ``employee'' also includes former employees.
Chamber/SHRM contends that Robinson decided only that the term
``employee'' as used in Title VII's anti-retaliation provision, 42
U.S.C. 2000e-3(a), applied to former employees, not whether
``employee'' as used in section 701(f) of Title VII applied to former
employees. In Robinson, the Supreme Court observed that the definition
of ``employee'' in section 701(f), which is the basis for the term
``employee'' in GINA, ``lacks any temporal qualifier and is consistent
with either current or past employment.'' Robinson, 519 U.S. at 342.
The Commission has read Robinson as supporting its well-established
position that ``[f]ormer employees are protected by the EEO statutes
when they are subjected to discrimination arising from the former
employment relationship.'' See EEOC's Compliance Manual Section 2 on
Threshold Issues at Sec. 2-III.A.2. & n. 79 (available at http://www.eeoc.gov/policy/docs/threshold.html#2-III-A-2) (citing to
Robinson). An example under GINA would be a situation in which a former
employer disclosed to a prospective employer an individual's genetic
information. Accordingly, the final regulation makes clear that the
term ``employee'' includes an applicant and a former employee.
The final regulation provides a concise explanation of the
employers covered by GINA, rather than following the statute's example
of providing citations to definitions of ``employer'' provided by other
laws. For example, the final regulation explains that Indian tribes, as
well as bona fide private clubs (other than labor organizations) that
are exempt from taxation under section 501(c) of the Internal Revenue
Code of 1986, are not employers, rather than merely referring to Title
VII's exclusion of these groups from the definition of ``employer.''
See 42 U.S.C. 2000e(b)(1) and (2).
One commenter asked that the final regulation state that there is
no individual liability for violations of GINA. See Comment of TOC
Management Services (TOC). As the statute makes clear, GINA's
definition of ``employer'' includes employers as defined by Title VII
at 42 U.S.C. 2000(e)b. Numerous courts have held that this definition
was not intended to permit individual liability. See Lane v. Lucent
Tech., Inc., 388 F. Supp. 2d 590 (M.D.N.C. 2005) (citing cases from
every circuit except the First Circuit rejecting individual liability);
see also, e.g., Mandell v. County of Suffolk, 316 F.3d 368 (2d Cir.
2003); Wathen v. General Elec. Co., 115 F.3d 400 (6th Cir. 1997); Cross
v. Alabama, 49 F.3d 1490 (11th Cir. 1995); Grant v. Lone Star Co., 21
F.3d 649 (5th Cir. 1994). Therefore, it is not necessary to make this
point in the regulation.
The final regulation includes a definition of ``covered entity.''
It uses the term to refer to all entities subject to Title II of GINA:
The different categories of GINA-covered employers (private sector,
state and local government, Congressional employers, executive branch,
federal/civil service), as well as employment agencies, labor
organizations, and joint labor-management training and apprenticeship
programs. By using the term ``covered entity'' to describe the
requirements or prohibited practices applicable to all entities subject
to Title II of GINA, the final regulation avoids some of the repetition
found in sections 202-205 of the statute. This use of the term
``covered entity'' as a simplifying shorthand to aid in the readability
of the final regulation is similar to EEOC's use of ``covered entity''
in the regulation implementing Title I of the Americans with
Disabilities Act, 42 U.S.C. 12111 (ADA). One comment urged the
Commission not to use the term ``covered entity'' because of possible
confusion with the same term in HIPAA. See Comment of American Medical
Association (AMA). We do not believe that use of the term ``covered
entity'' in this regulation will cause confusion, as most of the
entities subject to Title II are not HIPAA covered entities and those
that are should be able to distinguish between their roles as HIPAA
covered entities and as covered entities subject to Title II of GINA.
We note that HIPAA covered entities do not appear to have experienced
confusion from use of the term ``covered entities'' in Title I of the
ADA, even though the ADA, like HIPAA, places limitations on the
acquisition and disclosure of medical information.
The final regulation says that the term ``covered entity'' includes
an ``employing office.'' The term ``employing office,'' referenced in
sections 201 and 207 of GINA, is used in the Congressional
Accountability Act, which protects employees in the legislative branch.
See 2 U.S.C. 1301(9). Although the EEOC has no enforcement authority
under the Congressional Accountability Act, as the only agency with
authority to issue regulations under Title II of GINA, we believe that
referencing that law in this final regulation appropriately puts
employees in the legislative branch and covered employing offices on
notice of their rights and responsibilities under GINA.
Section 1635.3 Definitions Specific to GINA
GINA includes six terms not found in any of the other employment
discrimination statutes that the Commission enforces. This final
regulation provides some additional guidance regarding these terms. One
comment said that many of the definitions in the NPRM were too
difficult to understand without scientific knowledge. See Comment of
Federal Deposit Insurance Corporation (FDIC). As noted above, in
developing these definitions, EEOC coordinated closely with NHGRI. We
also were careful to track closely the language of Title II itself
where possible to avoid any unintended consequences that might result
from attempting to paraphrase or simplify scientifically technical
language. However, we have added a number of examples to the regulation
itself that will further clarify the meanings of some of these terms.
Section 1635.3(a) Family Member
The statute defines an individual's ``family member'' both by
reference to ERISA section 701(f)(2) and as extending to the
individual's fourth degree relatives. First, section 201(3)(a) of GINA
states that family member is defined as ``a dependent (as that term is
used for purposes of section [701(f)(2) of ERISA])'' of the
individual.\5\ For purposes of Title II, the Commission has determined
that the dependents covered by Title II are limited to persons who are
or become related to an individual
[[Page 68915]]
through marriage, birth, adoption, or placement for adoption.\6\
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\5\ The Commission's definition of ``dependent'' is solely for
purposes of interpreting Title II of GINA, and is not relevant to
interpreting the term ``dependent'' under Title I of GINA or under
section 701(f)(2) of ERISA and the parallel provisions of the Public
Health Service Act and the Internal Revenue Code. The Commission
believes its interpretation of the term ``family member,''
particularly the way in which GINA's reference to section 701(f)(2)
of ERISA relates to that term, is consistent with the plain language
of both section 701(f)(2) and Title II of GINA, furthers Congress's
intent to prohibit genetic discrimination in the employment context,
and provides covered entities with clear standards governing
compliance with the law.
\6\ ``Placement for adoption'' or being placed for adoption
means the assumption and retention of a legal obligation for total
or partial support of a child by a person with whom the child has
been placed in anticipation of the child's adoption. The child's
placement for adoption with such person ends upon the termination of
such legal obligation. See 29 CFR 2590.701-2 (the definitions for
part 7 of ERISA)
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Groups who represent employers thought that persons who become
dependents by adoption or placement for adoption should not be
considered family members, because genetic information about them would
not indicate whether an individual protected by GINA might acquire a
disease or disorder. See Comments of Illinois Chamber of Commerce (ICC)
and Chamber/SHRM. However, GINA's express reference to section
701(f)(2) of ERISA and section 701(f)(2)'s explicit reference to
dependents by adoption or placement for adoption makes it absolutely
clear that Congress intended to include such persons in GINA's
definition of ``family member.'' Moreover, the acquisition of
information about the occurrence of a disease or disorder in an
applicant's or employee's adopted child could certainly result in the
type of discrimination GINA was intended to prohibit. For example, an
employer might use information it obtains about the current health
status of an adopted child to discriminate against an employee because
of concerns over potential health care costs, including increased
health insurance rates, associated with the family member's medical
condition. See S. Rep. No. 110-48 at 28 (indicating that spouses and
adopted children were included in the definition of family member for
this exact reason).
Second, GINA includes as family members persons related from the
first to the fourth degree of an individual. The degree of relationship
reflects the average proportion of genes in common between two
individuals. The GINA provisions thus include the individual's
children, siblings, and parents (first degree), grandparents,
grandchildren, uncles, aunts, nephews, nieces, and half-siblings
(second degree), great-grandparents, great grandchildren, great uncles,
great aunts, and first cousins (third degree), and great-great
grandparents and first cousins once removed (the children of a first
cousin) (fourth degree). The inclusion of half-siblings among second-
degree relatives responds to a comment we received to the proposed rule
which said that we had incorrectly listed half-siblings among first-
degree relatives.\7\ See Comment of GPPC.
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\7\ This approach is different from the approach taken in
regulations implementing Title I of GINA. See GINA Title I
regulations at 26 CFR 54.9802-3T(a)(2)(ii), 29 CFR 2590.702-
1(a)(2)(ii) and 45 CFR 146.122(a)(2)(ii), which were published in
the Federal Register on October 7, 2009 at 74 FR 51664.
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The Commission declines, however, to expand the degree of
relationship of family members beyond the fourth degree as one comment
suggested we should do. See Comment of Members of the Personal Genetics
Education Project (PGEP). Whether or not genetic information about an
individual's relatives beyond the fourth degree of relationship has
predictive value with respect to the individual, the language of the
statute on which the regulation is patterned does not permit such an
expansion of the definition of ``family member.'' In fact, GINA's
definition of ``family member'' is already broader than that term is
understood in the practice of medicine. As discussed in the following
section, a typical family medical history used for the purposes of
diagnosis and treatment includes information about an individual's
first-degree, second-degree, and third-degree relatives.
Section 1635.3(b) Family Medical History
The final regulation includes a definition of ``family medical
history'' because it is a term used in the statute's discussion of
prohibited employment practices, but it is not specifically defined by
the statute. In the legislative history of GINA, Congress stated that
the term ``family medical history [should] be understood as it is used
by medical professionals when treating or examining patients.'' S. Rep.
No. 110-48, at 16. In particular, the Senate Report notes as follows:
[T]he American Medical Association (AMA) has developed an adult
family history form as a tool to aid the physician and patient to
rule out a condition that may have developed later in life, which
may or may not have been inherited. This form requests information
about the patient's brothers, sisters, and their children,
biological mother, the mother's brothers, sisters, and their
children, maternal grandfather, maternal grandmother, biological
father, the father's brothers, sisters, and their children, paternal
grandfather and paternal grandmother. The committee expects that the
use of ``family history'' in this bill will evolve with the medical
profession and the tools it develops in this area.
Id. The Report further notes that ``a family medical history could be
used as a surrogate for a genetic trait,'' id., and that the definition
of ``genetic information'' had to include ``family medical history'' to
prevent a covered entity from making decisions about an individual's
health based on the existence of an inheritable disease of a family
member. See also id. at 28 (reiterating the Title I discussion of
family medical history in the Report section addressing Title II).\8\
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\8\ Since 2004 the U.S. Surgeon General's Family History
Initiative has actively promoted the collection and use of family
history information in clinical settings, including featuring a
bilingual Web-based tool through which the user creates and
organizes his/her family health history (http://www.hhs.gov/familyhistory/). GINA is not intended to limit the collection of
family medical history by health care professionals for diagnostic
or treatment purposes.
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Citing this legislative history, some employer groups urged that we
include the word ``inheritable'' before the words ``disease or
disorder'' in the regulation's definition of ``family medical
history,'' arguing that Congress did not intend that GINA apply to
conditions such as the common cold or the flu. See Comments of Chamber/
SHRM and ICC. For three reasons, the Commission has decided not to make
this change in the final rule. First, the regulation's language is
consistent with the plain language of the statute, which also does not
include the word ``inheritable.'' Second, given the rapidly-developing
field of genetics, we believe that requiring Title II covered entities
or EEOC investigators to determine whether a disease or disorder in
family members of an individual is ``inheritable'' or has a genetic
basis would present significant compliance and enforcement problems.
Finally, the Commission doubts that questions about whether a family
member has a cold, the flu, or similar conditions will often result in
charges being filed under GINA.
One commenter also suggested that we clarify that medical
information obtained from one employee will not be considered family
medical history of a family member who also works for the employer. See
Comment of Chamber/SHRM. This commenter is apparently concerned that an
employer will be liable for a violation of GINA if it requests
information about a manifested disease or disorder of an employee whose
family member also works for the employer. The Commission recognizes
the problem that this commenter is trying to avoid, but does not agree
with the proposed solution. We disagree that the first employee's
medical information is not family medical history as to the second
employee. An employer who learns that one employee has a manifested
disease or disorder would be in possession of family medical history
about a second employee who is a
[[Page 68916]]
family member as defined by GINA. Likewise, an employer who learns the
results of one employee's genetic test or learns that the employee has
sought or received genetic services would possess genetic information
about the employee who is a family member. (See discussion of the
definition of ``genetic information,'' below.) We do not think Congress
could have intended that an employee not be protected from the
discriminatory use or the disclosure of his or her genetic information
just because the employer obtained it from a family member who was also
an employee.
However, we do agree with the comment to the extent it seeks to
limit liability under GINA for the acquisition of information about an
employee's manifested condition. Although acquisition of information
about manifested conditions is limited under other laws such as the
ADA, it is permissible under GINA, even where an employee's family
member works for the same employer. We have added a new subsection to
Sec. 1635.8 to clarify this point, and to make the related point that
an employer will not violate GINA's provisions prohibiting the
acquisition of an employee's genetic information when it requests
genetic information or information about a manifested disease or
disorder from an employee's family member to whom health or genetic
services are being provided on a voluntary basis. (See discussion of
Sec. 1635.8(c), below.)
Section 1635.3(c) Genetic Information
GINA section 201(4) and the regulation define genetic information
to include information from genetic tests, the genetic tests of family
members, and family medical history. Genetic information also includes
information about an individual's or family member's request for or
receipt of genetic services. GINA section 209(b) and the regulation add
that the term genetic information includes genetic information of a
fetus carried by an individual or an individual's family member or an
embryo lawfully held by an individual or family member receiving
assistive reproductive services. See Comment of FDIC (noting that the
preamble to the proposed rule cited to the wrong section of GINA when
discussing the genetic information of a fetus or embryo). The statute
and regulation exclude from coverage information about an individual's
or family member's age or gender. In response to a comment, and mindful
that many employers routinely request such information on a voluntary
basis to comply with their EEO obligations, the final rule also says
that information about race and ethnicity that is not derived from a
genetic test is not genetic information. See Comment of ACLU.
Section 1635.3(d) Genetic Monitoring
Genetic monitoring is defined in GINA section 201(5) as the
``periodic examination of employees to evaluate acquired modifications
to their genetic material * * * caused by the toxic substances they use
or are exposed to in performing their jobs.'' The final regulation uses
language similar to that found in the statute in defining the term. As
more fully described in 1635.8(b)(5) and its accompanying preamble
discussion, a covered entity may acquire genetic information as part of
genetic monitoring that is either required by law or voluntarily
undertaken, provided the entity complies strictly with certain
conditions.
Section 1635.3(e) Genetic Services
The term ``genetic services'' is defined in GINA section 201(6). It
includes genetic tests, genetic counseling, and genetic education.
Making an employment decision based on knowledge that an individual has
received genetic services violates GINA, even if the covered entity is
unaware of the specific nature of the genetic services received or the
specific information exchanged in the course of providing them.
A number of comments asked that the final rule offer additional
examples of genetic services that emphasize the term's breadth,
including genetic education before and after testing and preventive
therapies that an individual might undergo in response to a genetic
test to reduce or eliminate the risk of acquiring a condition in the
future. See Comments of AMA, CGF, Genetic Alliance, and GPPC. We have
not made any additions to the definition in the final regulation. The
definition of genetic services provided in the proposed rule
encompasses genetic education, whether it is offered before, after, or
unrelated to genetic testing. Moreover, we have determined that the
statutory definition of genetic services was not intended to encompass
the types of clinical services mentioned by these commenters.
Section 1635.3(f) Genetic Test
GINA section 201(7) defines ``genetic test'' to mean the ``analysis
of human DNA, RNA, chromosomes, proteins, or metabolites that detects
genotypes, mutations, or chromosomal changes.'' Genetic tests are used
to detect gene variants associated with a specific disease or
condition. For example, tests to determine whether an individual
carries the genetic variant evidencing a predisposition to breast
cancer--whether the individual has the BRCA1 or BRCA2 variant--or to
determine whether an individual has a genetic variant associated with
hereditary nonpolyposis colorectal cancer are genetic tests. It is
important to note, however, that the presence of a genetic variant
relating to a predisposition to disease is not evidence of, and does
not equate to, disease. Similarly, a positive test for a genetic
variant as strongly penetrant as Huntington's Disease does not equate
to the presence of the disease, even though development of the disease
is almost inevitable.
The Commission invited comments on the scope of the term ``genetic
test.'' In response, we received comments generally agreeing with how
the Commission characterized certain kinds of tests in the preamble and
text of the proposed rule. Several comments asked that we place
examples from the preamble to the proposed rule in the text of the
regulation itself, and we have done so. See Comments of the Equal
Employment Advisory Council (EEAC), CGF, Genetic Alliance, GPPC and
TOC. Thus, the regulation says that tests for infectious and
communicable diseases that may be transmitted through food handling,
complete blood counts, cholesterol tests, and liver-function tests are
not genetic tests. To the proposed rule's examples of genetic tests, we
have added a number of others suggested by several commenters,
including carrier screenings of adults to determine the risk of
conditions such as cystic fibrosis, sickle cell anemia, spinal muscular
atrophy, and fragile X syndrome in future offspring; amniocentesis and
other evaluations used to determine the presence of genetic
abnormalities in a fetus; newborn screening tests for conditions such
as PKU, which may allow preventive treatment to begin before the
disease manifests; DNA testing that reveals family relationships (e.g.,
paternity tests); and DNA testing that determines the presence of
genetic markers associated with ancestry. See Comments of CGF, Genetic
Alliance, and GPPC.
Two commenters requested that the preamble and regulation refrain
from listing specific tests that are excluded from the definition of
genetic test. One argued that the science of genetics is constantly
developing and that it is therefore shortsighted to specify tests that
are not genetic in nature. See Comment of National Counsel of EEOC
Locals no. 216, American Federation of Government Employees, AFL-CIO
[[Page 68917]]
(AFGE). Although we acknowledge this concern, excluding illustrative
examples of what does not meet this definition would only serve to
confuse those attempting to understand the bounds of the law.
Another comment argued that while the excluded tests are not
genetic tests, it is still important that the results of tests that are
not genetic tests be kept confidential and not be used as a basis for
discrimination. See Comment of Disability Rights Legal Center (DRLC).
Concerns about the discriminatory use of medical tests that are not
genetic are addressed by the ADA, which limits the use of medical
examinations and prohibits the use of medical and non-medical tests
that screen out or tend to screen out an individual with a disability
or a class of individuals with disabilities from employment, unless the
test is shown to be job-related for the position in question and
consistent with business necessity. See 29 CFR 1630.10. Section
1635.11(a) of the final rule and the accompanying preamble discussion
make it clear that Title II of GINA does not limit other laws,
including the ADA, that protect individuals on the basis of disability.
The Title II definition of ``genetic test'' differs from the
definition of this term in Title I. Specifically, the Title II
definition does not have the express exclusion that Title I does for
``an analysis of proteins or metabolites that is directly related to a
manifested disease, disorder, or pathological condition that could
reasonably be detected by a health care professional with appropriate
training and expertise in the field of medicine involved.'' GINA
101(d), 29 U.S.C. 1191b-(d)(7)(B). However, as explained below, the
Commission borrowed from Title I's use of the term ``manifest'' in the
definition of ``genetic test'' in formulating a definition of
``manifested or manifestation.''
Section 1635.3(g) Manifestation or Manifested
The final rule includes a definition of the term ``manifestation or
manifested'' because sections 201(4)(A)(iii) and 210 use the terms.
Specifically, GINA section 201(4)(A)(iii), defining ``genetic
information,'' refers to the ``manifestation of a disease or disorder
in family members'' of an individual, and section 210, entitled
``Medical information that is not genetic information,'' refers to a
``manifested disease, disorder, or pathological condition.''
The definition of ``manifestation or manifested'' was developed
with the assistance of NHGRI. The proposed rule defined ``manifestation
or manifested'' to mean, with respect to a disease, disorder, or
pathological condition:
that an individual has been or could reasonably be diagnosed with
the disease, disorder, or pathological condition by a health care
professional with appropriate training and expertise in the field of
medicine involved. For purposes of this part, a disease, disorder,
or pathological condition is not manifested if the diagnosis is
based principally on genetic information or on the results of one or
more genetic tests.
The final rule deletes the words ``or on the results of one or more
genetic tests,'' which are unnecessary, given that the term ``genetic
information'' already includes the results of genetic tests. The
definition of the term ``manifested'' is consistent both with the
definition of genetic test found in Title I, which permits use of
certain diagnostic tests in order to determine whether an individual
has a current--or manifest--disease, disorder, or condition, see S.
Rep. No. 110-48. at 16, and with the notion, discussed above in
conjunction with the definition of genetic test (Sec. 1635.3(f)), that
the mere presence of a genetic variant does not mean that an individual
has an associated condition, disease, or disorder. The presence of a
genetic variant alone does not constitute a diagnosis; other signs or
symptoms must be present. This interpretation is consistent with
current ERISA regulations which prohibit a group health plan, and a
health insurance issuer offering group health insurance coverage, from
imposing a preexisting condition exclusion relating to a condition
based solely on genetic information. Thus, for example, a woman who has
group health plan coverage and has the BRCA1 gene variant may not be
subject to a preexisting condition exclusion merely because she has the
variant. Id. Example at 29 CFR 2590.701-3(b)(6)(ii). However, if an
individual is diagnosed with a condition, even if the condition relates
to genetic information--for example, breast cancer stemming from the
BRCA1 gene variant--the plan may impose a preexisting condition
exclusion with respect to the condition as of the date the disease was
diagnosed, subject to other HIPAA portability requirements. See 29 CFR
2590.701-3(b)(6)(i).
Similarly, Huntington's Disease (HD) is an example of a genetic
disease that is not diagnosed solely through use of a genetic test;
other signs and symptoms must be present. The presence of the genetic
variant virtually guarantees the later development of disease, but the
disease does not usually manifest until adulthood. Therefore, even when
a genetic variant is 100 percent predictive for development of disease,
the presence of the variant does not by itself equal diagnosis of the
disease.
Two comments asked the Commission to delete from Sec. 1635.3(g)
the concept that a disease, disorder, or pathological condition is not
manifested if it is based ``principally on genetic information or on
the results of one or more genetic tests.'' See Comments of America's
Health Insurance Plans (AHIP) and Chamber/SHRM; see also Comments of
EEAC and SBA (raising similar concern). Although the Commission has
deleted reference to ``the results of one or more genetic tests'' as
explained above, the final rule still includes the basic concept that a
condition is not manifest if it is based principally on genetic
information. We agree, however, that a clarification is needed to
address what we believe to be the central concern of these commenters,
i.e., that the language at issue extends the protections of GINA to
people with manifested conditions when genetic information played a
role in diagnosing them. We therefore note that where diagnosis of a
disease, disorder, or pathological conditions depends on both the
presence of signs and symptoms and genetic information, the disease,
disorder, or pathological condition will be considered manifested. The
fact that an individual has the diagnosed disease, disorder, or
pathological condition will not be considered genetic information about
the individual; nor will information about the signs or symptoms the
individual has. Such information, however, is still subject to other
laws regulating the acquisition and use of medical information,
including Title I of the ADA. See 42 U.S.C. 12112(d). Moreover,
information about any genetic test or family medical history used as
part of the diagnosis of the disease, disorder, or pathological
condition is genetic information subject to Title II of GINA and this
regulation.
Several commenters requested that the final regulation clarify that
the genetic information of an individual with a manifested disease is
still protected under GINA, citing the example of an individual with
breast cancer who undergoes a genetic test and learns that she tests
positive for a BRCA mutation, which increases one's risk for developing
ovarian cancer as well as breast cancer. See Comments of CGF, Genetic
Alliance, and GPPC. These commenters requested that we make clear that
discriminating against this individual due to the presence of the
genetic variant is a violation of GINA despite the fact that she also
has a
[[Page 68918]]
manifested disease caused by the variant. We note that Sec. 1635.12(b)
makes it clear that genetic information of an individual with a
manifested disease is protected genetic information under GINA and that
discriminating against someone based on this information is prohibited.
Section 1635.4 Prohibited Practices--In General
In describing the prohibited practices under GINA Title II,
Congress adopted language similar to that used in Title VII and other
equal employment statutes, evincing its intent to prohibit
discrimination with respect to a wide range of covered entity
practices, including hiring, promotion and demotion, seniority,
discipline, termination, compensation, and the terms, conditions, and
privileges of employment. In response to a comment, we further note
that the broad language Congress adopted in describing the practices
prohibited by Title II makes clear that claims of harassment on the
basis of genetic information are cognizable. See Comment of Disability
Rights Legal Center (DLRC). In separate GINA sections 203-205, the
statute notes additional covered actions of employment agencies
(failing or refusing to refer for employment), labor unions (excluding
or expelling from membership), and training, retraining, and
apprenticeship programs (denying admission to or employment in such
programs).
Section 1635.5 Limiting, Segregating, and Classifying
The final regulation reiterates the statutory language barring
actions by covered entities that may limit, segregate, or classify
employees because of genetic information. For example, an employer
could not reassign someone whom it learned had a family medical history
of heart disease from a job it believed would be too stressful and
might eventually lead to heart-related problems for the employee. This
section also makes clear that although the language of the statute
specifically prohibits actions that have the ``purpose or effect'' of
limiting, segregating, or classifying individuals on the basis of
genetic information, neither the statute nor the final regulation
creates a cause of action for disparate impact. Section 208 of GINA
specifically prohibits such actions, and establishes the Genetic
Nondiscrimination Study Commission, to examine ``the developing science
of genetics'' and recommend to Congress ``whether to provide a
disparate impact cause of action under this Act.'' The final regulation
does not address the establishment of this Commission, which is
scheduled to begin its work on May 21, 2014.
In response to a comment, we clarify that a covered entity will not
be deemed to have violated Sec. 1635.5 if it limits or restricts an
employee's job duties based on genetic information because it was
required to do so by a law or regulation mandating genetic monitoring
such as regulations administered by the Occupational and Safety Health
Administration (OSHA). See Comment of EEAC (requesting clarification of
this point); see also 1635.8(b)(5) (concerning voluntary genetic
monitoring and monitoring pursuant to state or federal law) and
1635.11(a) below (GINA does not limit the statutory or regulatory
authority of OSHA, the Mine Safety and Health Administration or other
workplace health and safety laws and regulations.)
Section 1635.6 Causing a Covered Entity To Discriminate
GINA sections 203(a)(3), 204(a)(3), and 205(a)(3) expressly bar
employment agencies, labor organizations, and apprenticeship or other
training programs from causing an employer to discriminate on the basis
of genetic information. These sections recognize that employers engage
in most of the employment-related activities that the Act reaches.
Other covered entities, however, might engage in conduct that could
cause an employer to discriminate. For example, an employment agency or
union might share or attempt to share genetic information it obtained
(whether legally or not) about a client or member with an employer.
Such conduct would violate sections 203(a)(3) and 204(a)(3), regardless
of the intent of the employment agency or union in sharing the
information. See Comment of DLRC (requesting clarification on this
point).
Although section 202 does not include a similar provision
explicitly prohibiting an employer from causing another covered entity
to discriminate, it is well settled under Title VII that the definition
of employer includes employers' agents under common law agency
principles. See Vinson v. Meritor Savings Bank, 477 U.S. 57, 72 (1986).
Because GINA incorporates Title VII's definition of employer, including
the application of common law agency principles, GINA would bar an
employer from engaging in actions that would cause another covered
entity acting as its agent to discriminate. For example, an employer
that directed an employment agency to ask applicants for genetic
information or told the employment agency not to send it candidates
with a family medical history for certain conditions would violate
GINA. An employment agency that acted pursuant to the employer's
direction would be liable for violating GINA either directly, because
the law applies to employment agencies, or as an agent of the employer.
Similarly, an employer would violate GINA if it used a labor
organization's hiring hall to obtain genetic information in making job
referrals, and the labor union would be liable under GINA either
directly or as the employer's agent. The final rule modifies the
language of Sec. 1635.6 of the proposed rule slightly so that it
leaves no doubt that no GINA covered entity may cause another covered
entity to discriminate on the basis of genetic information.
Section 1635.7 Retaliation
The final regulation reiterates the statutory prohibition against
retaliation where an individual opposes any act made unlawful by GINA,
files a charge of discrimination or assists another in doing so, or
gives testimony in connection with a charge. Because Congress adopted
in GINA the language of the anti-retaliation provision in Title VII of
the Civil Rights Act of 1964, the Commission believes that Congress
intended the standard for determining what constitutes retaliatory
conduct under GINA to be the same as the standard under Title VII, as
announced by the Supreme Court in Burlington Northern & Santa Fe Ry. v.
White, 548 U.S. 53 (2006). In that case, the Court held that Title
VII's anti-retaliation provision protects an individual from conduct,
whether related to employment or not, that a reasonable person would
have found ``materially adverse,'' meaning that the action ``well might
have `dissuaded a reasonable worker from making or supporting a charge
of discrimination.' '' Id. at 57-58 (citations omitted).
Section 1635.8 Acquisition of Genetic Information
Each of the discrete GINA sections addressing the conduct of
employers, employment agencies, labor organizations, and apprenticeship
or other training programs includes a section prohibiting covered
entities from requesting genetic information from applicants,
employees, or other individuals; from requiring that applicants or
employees provide genetic information; or from purchasing genetic
information about an applicant or employee. Each section also includes
the same five exceptions. Sections 202, covering employers, and 205,
covering joint labor-management training and
[[Page 68919]]
apprenticeship programs, include a sixth exception. The proposed
regulation addressed each of the exceptions, as does the final
regulation. Covered entities are cautioned, however, that the use of
genetic information to discriminate, no matter how that information may
have been acquired, is prohibited.
Concerning the general prohibition on acquiring genetic
information, two commenters noted that the regulatory language of
1635.8(a) did not track the statutory language in that it failed to
indicate that the prohibition applies to the genetic information of
family members of individuals, as well as to that of the individuals
themselves. See Comment of the American Psychological Association (APA)
and FDIC. Although we believe the substance of the regulatory language
is correct, in that the genetic information of an individual includes
the genetic information of that individual's family members, we agree
that it would be best to follow the statutory language of this
prohibition and have altered 1635.8(a) accordingly.
Another comment argued that a covered entity violates GINA's
provisions prohibiting the acquisition of genetic information only when
it undertakes the purposeful act of requesting, requiring, or
purchasing genetic information. See Comment of Chamber/SHRM. It was
improper, this comment reasoned, for the Commission to have included
examples of ``passive acquisition'' in 1635.8(b)(1) (governing
inadvertent acquisition of genetic information) and 1635.8(b)(4)
(concerning acquisition of genetic information through sources that are
commercially and publicly available).
However, other commenters read the prohibition on acquisition more
broadly, noting their view that GINA restricts ``deliberate acts that
result in the acquisition of genetic information,'' not just
purposefully requesting, requiring, or purchasing genetic information.
See Comments of ACLU, CGF, Genetic Alliance, and GPPC. A similar
construction of the acquisition prohibition underlay suggestions for
changes to the portion of the rule concerning inadvertent acquisition
of genetic information. Several commenters said that covered entities
that make inquiries or engage in actions reasonably likely to result in
the acquisition of genetic information should not be able to avail
themselves of the exceptions in 1635.8(b)(1) or 1635.8(b)(4). Thus, for
example, as discussed below, commenters asked that the Commission
require that covered entities requesting information about an
individual's current health status (e.g., for the purpose of making a
reasonable accommodation) affirmatively warn the person providing the
information not to include genetic information, since acquisition of
genetic information in the form of family medical history would be
likely in the absence of a warning. See Comments of ACLU, the American
Medical Association (AMA), CGF, Genetic Alliance, GPPC, and the
Leadership Conference on Civil Rights (LCCR). Similarly, most of these
commenters said that the exception for acquisition of genetic
information from sources that are commercially and publicly available
should not apply to sources that are likely to, or present a
``heightened risk'' of, containing genetic information, and one
commenter specifically asked that the final rule prohibit Internet
searches that include an individual's name and a particular genetic
marker. See Comments of LCCR.
The Commission acknowledges all these concerns and, for purposes of
GINA Title II, has added language to 1635.8(a) as follows: `` `Request'
includes conducting an Internet search on an individual in a way that
is likely to result in a covered entity obtaining genetic information;
actively listening to third-party conversations or searching an
individual's personal effects for the purpose of obtaining genetic
information; and making requests for information about an individual's
current health status in a way that is likely to result in a covered
entity obtaining genetic information.''
We think it is equally clear that Congress intended certain
``passive acquisitions'' of genetic information to be exceptions to the
rule prohibiting acquisition, rather than being wholly outside the
prohibition. The examples, particularly those in Sec. 1635.8(b)(1) and
(4), are similar to the so-called ``water cooler'' example that
Congress thought should be an exception to the general prohibition
against requesting, requiring, or purchasing genetic information. See
S. Rep. No. 110-48, at 29 (``[t]he committee recognizes that
conversations among coworkers about the health of a family member are
common and intends to prevent such normal interaction from becoming the
basis of litigation''). We therefore retain the examples offered in the
preamble to the proposed rule, as we believe that they provide useful
guidance. See Comment of TOC (encouraging EEOC to retain examples).
We now turn to a discussion of the specific exceptions described in
1635.8(b). We received a number of comments concerning these
exceptions, particularly in response to 1635.8(b)(1), (2) and (4).
Inadvertently Requesting or Requiring Genetic Information: First,
as noted in the proposed rule, a covered entity that ``inadvertently
requests or requires family medical history'' from an individual does
not violate GINA. Congress intended this exception to address what it
called the `` `water cooler problem' in which an employer unwittingly
receives otherwise prohibited genetic information in the form of family
medical history through casual conversations with an employee'' or by
overhearing conversations among co-workers. S. Rep. No. 110-48, at 29;
see also H.R. Comm. on Education and Labor, Genetic Information
Nondiscrimination Act of 2007, H.R. Rep. No. 110-28 part I, 37-38
(2008) (H.R. Rep. No. 110-28, part I). Congress did not want casual
conversation among co-workers regarding health to trigger federal
litigation whenever someone mentioned something that might constitute
protected family medical history. The Commission's proposed regulation
therefore noted that a covered entity inadvertently acquires family
medical history where a manager or supervisor overhears a conversation
among co-workers that includes information about family medical history
(e.g., a conversation in which one employee tells another that her
father has Alzheimer's disease).
Although the language of this exception in GINA specifically refers
to family medical history, the Commission believes that it is
consistent with Congress's intent to extend the exception to any
genetic information that an employer inadvertently acquires. The
Commission does not believe, for example, that Congress intended that
an employer would be liable for the acquisition of genetic information
because it overhears a conversation in which one employee tells another
that her mother had a genetic test to determine whether she was at
increased risk of getting breast cancer. If the exception were read to
cover only family medical history, this would violate GINA, even though
it occurred inadvertently, because information that a family member has
had a genetic test, while genetic information, is not information about
the occurrence of a disease or disorder in a family member. Although we
received numerous comments in regard to 1635.8(b)(1), no commenter
expressed disagreement with the decision to extend the exception to all
genetic information that a covered entity inadvertently acquires. See,
e.g., Comment of GPPC (discussing the need for a restrictive view of
this
[[Page 68920]]
exception, but expressing agreement that it was intended to extend to
all genetic information and not just family medical history).
The Commission also understands this exception to apply in any
situation in which an employer might inadvertently acquire genetic
information, not just to situations involving conversations between co-
workers that are overheard. The proposed regulation provided an
illustrative list of examples, reiterated here, where we believe
Congress intended the exception to apply. Thus, for example, the
exception applies when the covered entity, acting through a supervisor
or other official, receives family medical history directly from an
individual following a general inquiry about the individual's health
(e.g., ``How are you?'' or ``Did they catch it early?'' asked of an
employee who was just diagnosed with cancer) or a question as to
whether the individual has a manifested condition.\9\ Similarly, a
casual question between colleagues, or between a supervisor and
subordinate, concerning the general well-being of a family member would
not violate GINA (e.g., ``How's your son feeling today?'', ``Did they
catch it early?'' asked of an employee whose family member was just
diagnosed with cancer, or ``Will your daughter be OK?''), nor would the
receipt of genetic information that was not solicited or sought by the
employer (e.g., where a manager or supervisor receives an unsolicited
email from a co-worker about the health of an employee's family
member).
---------------------------------------------------------------------------
\9\ When asking questions likely to elicit information about a
disability, covered entities must, of course, also abide by the
requirements of the ADA.
---------------------------------------------------------------------------
A number of commenters raised concerns about the exact parameters
of this exception. Civil rights groups and organizations promoting
genetic research asked that the EEOC clarify that pointed questions or
other attempts to gather genetic information by, for example,
intentionally eavesdropping on private conversations or asking highly
specific follow-up questions when an employee mentions that a family
member is ill, do not fall within the bounds of this exception. See
Comments of ACLU, CGF, the Genetic Alliance, GPPC, and LCCR. The
Illinois Chamber of Commerce (ICC) requested that the regulation
specifically state that there is no violation of the prohibition
against acquisition unless the employer purposefully acquires genetic
information and both ICC and Chamber/SHRM requested that it be made
clear that the examples provided are not exhaustive. See Comments of
ICC and Chamber/SHRM. The FDIC made a similar point when it requested
that the rule state that this exception applies to questions by an
employer ``not likely to elicit genetic information'' but does not
apply to questions ``likely to elicit genetic information.'' See
Comment of FDIC.
These comments make apparent the need for greater clarity
concerning this exception. We include in the final regulation itself
the examples from the preamble to the proposed rule that illustrate how
this exception applies and provide an additional example both here and
in the final regulation at 1635.8(b)(1)(ii)(B). The additional example
is as follows: A covered entity that inadvertently acquires genetic
information about someone's family member in response to a general
question about the family member's health may not then ask follow-up
questions that are probing in nature, such as whether other family
members also have the condition, or whether the individual has been
tested for the condition.
We also include an additional example here and in the final
regulation at 1635.8(b)(1)(ii)(D) to clarify that the inadvertent
acquisition exception applies not only to interactions within the
workplace during which a covered entity unwittingly receives genetic
information, but also to interactions that take place in the
``virtual'' world, i.e., through a social media platform from which a
covered entity unwittingly receives genetic information. In other
words, this exception applies where a manager, supervisor, union
representative, or employment agency representative inadvertently
learns genetic information from a social media platform which he or she
was given permission to access by the creator of the profile at issue
(e.g., where a supervisor and employee are connected on a social
networking site and the employee provides family medical history on his
page).
We further note that the examples provided in this preamble and the
regulation are non-exhaustive and that other situations in which a
covered entity inadvertently acquires genetic information are covered
by this exception as long as the requirements provided in the
regulation are met.
We received a significant number of comments expressing concern
about GINA's application to a covered entity's request for medical
information that results in the receipt of genetic information that was
not requested. Civil rights groups, groups promoting genetic research,
and others argued that covered entities will obtain a great deal of
genetic information through general requests for medical information if
they are not required to affirmatively indicate that genetic
information should not be provided. See Comments of the ACLU, AMA, CGF,
Genetic Alliance, GPPC, and LCCR. See also Comments of Burton Blatt
Institute (noting that the exception's application to acquisition
through legitimate medical information requests should be limited
because doctors will not know to exclude genetic information) and World
Privacy Forum (requesting further limitations on this exception).
Employer groups raised the related point that human resource offices do
not have control over what is received from health care providers in
response to requests for medical information and that covered entities
should not be subjected to liability if health care providers provide
genetic information that was not requested. See Comments of Chamber/
SHRM, EEAC and the International Public Management Association for
Human Resources, the League of Minnesota Cities and the International
Municipal Lawyers Association (IPMA/IMLA).
In response to these comments and to facilitate compliance with the
law, we have added language to the final rule indicating that when a
covered entity warns anyone from whom it requests health-related
information not to provide genetic information, the covered entity may
take advantage of the exception in 1635.8(b)(1) if it nevertheless
receives genetic information. This ``safe harbor'' in
1635.8(b)(1)(i)(B) provides that any receipt of genetic information in
response to a lawful request for medical information will be deemed
inadvertent and not in violation of GINA if the request contained such
a warning.
The final rule includes the following language that a covered
entity may use to provide such notice: ``The Genetic Information
Nondiscrimination Act of 2008 (GINA) prohibits employers and other
entities covered by GINA Title II from requesting or requiring genetic
information of employees or their family members. In order to comply
with this law, we are asking that you not provide any genetic
information when responding to this request for medical information.
`Genetic information,' as defined by GINA, 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 of a fetus carried by an individual or an individual's
family member or an
[[Page 68921]]
embryo lawfully held by an individual or family member receiving
assistive reproductive services.'' Alternative language may also be
used, as long as individuals and health care providers are informed
that genetic information should not be provided.
Although one commenter expressed concern that giving notice would
impose an unnecessary burden on small businesses, we note that the
warning may be conveyed verbally if the request for medical information
itself is also verbal. See Comment of the National Federation of
Independent Business (NFIB). We are aware that many businesses,
especially small businesses, do not use forms when requesting medical
information, and we do not intend this regulation to change the
practice of making such requests verbally.
If a covered entity does not give such a written or verbal notice,
it may nonetheless establish that a particular receipt of genetic
information in response to a request for medical information was an
inadvertent acquisition because the covered entity's request was not
made in a way that was ``likely to result in the covered entity's
obtaining genetic information'' (for example where an overly broad
response is received in response to a tailored request for medical
information). We note, however, that a warning is mandatory in all
cases where a covered entity requests a health care professional to
conduct an employment-related medical examination on the covered
entity's behalf, since in that situation, the covered entity should
know that the acquisition of genetic information (e.g., family medical
history) would be likely in the absence of the warning. (See discussion
of 1635.8(d), below.)
The proposed regulation noted that when a covered entity seeks
information from an individual who requests a reasonable accommodation
under the ADA or state or local law, the acquisition of genetic
information as part of the documentation that the individual provides
in support of the request is considered inadvertent, as long as the
request for documentation was lawful. We received numerous comments
asking us to describe in the regulation itself what it means for a
request for documentation supporting a request for reasonable
accommodation to be considered lawful. See Comments of APA, Disability
Rights Legal Center (DRLC), the Epilepsy Foundation, and ICC. In
response, we explain in the final rule that in order to be considered a
lawful request for documentation made in response to an individual
seeking a reasonable accommodation under the ADA or state or local law,
the request for medical documentation can be made only when the
disability and/or the need for accommodation is not obvious. In this
situation, the employer may ask the individual for reasonable
documentation about his/her disability and/or need for accommodation.
Reasonable documentation means that the employer may require only the
documentation that is needed to establish that a person has a
disability within the meaning of the ADA and that the disability
necessitates a reasonable accommodation. For example, an employer
cannot request a person's complete medical records because they are
likely to contain information unrelated to the disability at issue and
the need for accommodation. If an individual has more than one
disability, an employer can request information pertaining only to the
disability that requires a reasonable accommodation. See EEOC's
Enforcement Guidance on Reasonable Accommodation and Undue Hardship
Under the Americans With Disabilities Act, EEOC Notice No. 915.002
(Oct. 17, 2002), available at http://www.eeoc.gov/policy/docs/accommodation.html. Like any request for medical documentation, the
request for documentation as part of the reasonable accommodation
process should generally inform the individual or entity from whom the
documentation is sought, using language like that noted above, that
genetic information should not be provided.
We note that GINA's prohibition on requesting, requiring, or
purchasing genetic information would control during the interactive
process used to determine an appropriate reasonable accommodation. The
Commission knows of no reason why a covered entity would need to
request genetic information to determine an individual's current
physical or mental limitations and whether those limitations can be
accommodated.
The Commission further recognizes that other federal, state, or
local laws may allow covered entities to obtain medical information
about employees. A covered entity that inadvertently receives genetic
information in response to a lawful request for medical information
under such a law would not violate GINA. For example, a covered entity
might receive genetic information in connection with an employee's
request for FMLA leave to attend to the employee's own serious health
condition or in connection with the FMLA's employee return to work
certification requirements, even though an employee is not required to
provide genetic information in either of these situations.\10\
Acquisition of genetic information in these circumstances will be
considered inadvertent if the covered entity affirmatively warns
individuals and health care providers from whom they are seeking
medical documentation not to provide genetic information, or, in the
absence of such a warning, where the request for medical information
was not likely to result in the acquisition of genetic information.\11\
In response to two comments concerning the need for additional clarity
with regard to how the exceptions to the prohibition against acquiring
genetic information apply to information received pursuant to the FMLA,
we have added the above examples to 1635.8(b)(1)(ii)(D)(2)(which was
1635.8(b)(1)(iv) in the proposed rule), as well as additional detail to
the preamble's discussion of the FMLA exception (1635.8(b)(3)),
discussed below. See Comments of APA and Anil Chaudhry.
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\10\ There is a separate exception for the acquisition of family
medical history received from individuals requesting leave under the
FMLA or similar state or local laws to care for a family member.
This exception is discussed in detail below.
\11\ One commenter expressed concern that adding any language to
the FMLA certification form would result in a statutory violation of
the FMLA. See Comment of Illinois Credit Union League. The EEOC does
not enforce the Family and Medical Leave Act and therefore has no
authority to interpret it. We know of no reason, however, that
informing a health care provider that genetic information should not
be provided when certifying an employee's own serious health
condition would lead to a violation of the FMLA. Moreover, the
notice informing applicants/employees and health care providers that
they must not provide genetic information, including family medical
history, to covered entities need not be made on the FMLA
certification form itself, as long as it is provided in writing
along with the form.
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The Commission believes that the first exception to the general
prohibition of requesting, requiring, or purchasing genetic information
should also apply when an individual requests leave pursuant to a leave
policy independent of a federal, state, or local leave or disability
law. Acquisition of genetic information in these circumstances, like
the acquisition of genetic information where leave is requested
pursuant to the FMLA or a state or local leave law, will be considered
inadvertent if the covered entity affirmatively warns individuals and
health care providers from whom they are seeking medical documentation
not to provide genetic information, using language like that noted
above, or, in the absence of such a warning, where the request for
medical information was not made in a way that was likely to result in
the covered entity's obtaining genetic information. Covered entities
should also be aware that overbroad requests for documentation to
support
[[Page 68922]]
an employee's use of leave may violate the ADA. For information on the
appropriate scope of inquiries in response to requests for leave (other
than as a reasonable accommodation), see EEOC's Enforcement Guidance on
Disability-Related Inquiries and Medical Examinations of Employees
Under the Americans With Disabilities Act, 8 Fair Empl. Prac. Man.
(BNA) 405:7701, (Enforcement Guidance) Questions 15-17 (July 27, 2000)
available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html.
One commenter raised a concern about proposed 1635.8(b)(1)(vi),
which extended the inadvertent acquisition exception to a covered
entity that learns genetic information about an individual in response
to an inquiry about the individual's general health, an inquiry about
whether the individual has any current disease, disorder, or
pathological condition, or an inquiry about the general health of an
individual's family member. See Comment of APA. APA asked that this
exception be limited to requests ``permitted by Federal, State or local
law.'' Rather than add any limiting language, we have decided to
eliminate this subsection altogether, as it merely reiterates the
examples spelled out in 1635.8(b)(1)(ii)(B) (formerly 1635.8(b)(1)(ii)
in the proposed rule).
Finally, one commenter asked that the inadvertent acquisition
exception be extended to acquisition of genetic information by a self-
insured employer making health insurance billing determinations in its
capacity as an insurer. See Comment of Navigenics. It is not necessary
to extend the exception to cover these circumstances because, when a
self-insured employer is acting in its capacity as an insurer, its
actions are regulated by Title I of GINA, not Title II. Title I of GINA
has specific rules about acquiring genetic information for insurance
payment purposes. See 42 U.S.C. 1182(c)(3); 42 U.S.C. 300gg-1(c)(3); 26
U.S.C. 9802(c)(3).
Health or Genetic Services: GINA permits covered entities to
acquire genetic information where health or genetic services are
offered by the employer, including such services offered as part of a
wellness program, if the covered entity meets specific requirements.
The proposed regulation listed the specific requirements in the statute
as prerequisites to the acquisition of genetic information when
offering health or genetic services: the individual provides prior
knowing, voluntary, and written authorization, meaning that the covered
entity uses an authorization form that is written in language
reasonably likely to be understood by the individual from whom the
information is sought; describes the information being requested; and
describes the safeguards in place to protect against unlawful
disclosure. Additionally, the proposed rule said that a wellness
program or other health or genetic services that a covered entity
offers must be voluntary. The preamble to the proposed rule noted that,
under the ADA, a wellness program that requires employees to answer
disability-related inquiries and/or to submit to a medical examination
is voluntary if the program neither requires participation, nor
penalizes employees for non-participation.
We received two comments asking whether the written request and
authorization to participate in a wellness program could be provided
electronically. See Comments of AHIP and Kelly Hart & Hallman (KHH). We
think this is permissible and have revised the final rule accordingly.
We do not think it is necessary to provide in the final rule specific
standards for an electronic consent and authorization. The particular
format chosen, however, must be functionally equivalent to what would
be required in a written authorization, in terms of content and form.
For example, because written authorization is a prerequisite to the
acquisition of genetic information as part of health or genetic
services offered by a covered entity, such as a voluntary wellness
program, a covered entity could not utilize an on-line form that first
requires an individual to input family medical history and then asks
the individual to indicate his or her acceptance of the terms of an
authorization. Instead, a potential participant in the health or
genetic services being offered must first be presented with an
electronic authorization that describes the request in terms reasonably
likely to be understood by the individual, the purposes for which it
will be used, and the safeguards in place for assuring its
confidentiality, before any genetic information (such as family medical
history) can be provided.
The proposed regulation stated that individually identifiable
information may be provided only to the individual from whom it was
obtained and that covered entities are entitled only to receive
information in aggregate terms that do not disclose the identity of
specific individuals. Some comments objected to a statement in the
preamble to the proposed rule that a covered entity that receives
``aggregate'' information may still violate GINA where the small number
of participants, alone or in conjunction with other factors, makes an
individual's genetic information readily identifiable, noting that this
would impose burdens particularly on small businesses. See Comments
Chamber/SHRM and IPMA/IMLA.
In the final rule, we have retained the language in the NPRM, which
tracked the statutory language. GINA says that a covered entity may
only receive genetic information related to a wellness program ``in
aggregate terms that do not disclose the identity of specific
[individuals],'' see 42 U.S.C. 2000ff-1(b)(2)(D); 2000ff-2(b)(2)(D);
2000ff-3(b)(2)(D); and 2000ff-4(b)(2)(D). However, we have reconsidered
the position taken in the preamble to the NPRM that a covered entity
offering health or genetic services will not comply with 1635.8(b)(2)
if aggregate information disclosed to the covered entity makes the
genetic information of individuals readily identifiable. A provider of
health or genetic services will likely be unaware of facts known to a
covered entity that would make identification of specific individuals
readily identifiable from aggregate information. Likewise, a covered
entity may not know that the identity of specific individuals from
aggregate information will be readily identifiable until after it
receives the information. We do not believe that Congress intended to
impose liability on covered entities who receive aggregate information
about health or genetic services under such circumstances. Therefore,
the Commission here clarifies that GINA is not violated if the provider
of health or genetic services gives information to a covered entity in
aggregate terms that, for reasons outside the control of the provider
or the covered entity (such as the small number of participants), makes
the genetic information of a particular individual readily identifiable
with no effort on the covered entity's part. On the other hand, efforts
undertaken by a covered entity to link genetic information provided in
the aggregate to a particular employee will violate GINA.
We received numerous comments in response to a question we asked in
the preamble to the proposed rule concerning when a wellness program
that includes a request for genetic information should be considered
voluntary. Specifically, we wanted to know the level of inducement, if
any, that a covered entity could offer to promote participation in a
wellness program. See 74 FR 9056, 9062 (March 2, 2009). From the many
comments we received emphasizing the potential cost savings and
benefits for employee
[[Page 68923]]
health that could be brought about through wellness programs, four
approaches to voluntariness emerged. One approach suggested that we use
regulations promulgated pursuant to HIPAA, which define maximum levels
of inducements employers may offer to employees who participate in, or
achieve certain health outcomes as a result of participating in,
wellness programs. See Comments of American Benefits Council (ABC),
Chamber/SHRM, DMAA: The Care Continuum Alliance (DMAA), Dorsey and
Whitney, LLP, Healthways, National Business Group on Health (NBGH), and
United Healthcare. Under the HIPAA regulations, employers may offer
financial inducements of any size to encourage participation in
wellness programs, and may offer inducements of up to a specified
percentage of the cost of group health insurance coverage for an
individual or an individual and family to participants who achieve
specific health outcomes. See 26 CFR 54.9802-1(f)(1), 29 CFR
2590.702(f)(1), and 45 CFR 146.121(f)(1) (explaining that a wellness
program does not violate HIPAA's nondiscrimination requirements if none
of the conditions for obtaining a reward are based on an individual
satisfying a certain health standard, as long as participation in the
program is offered to all similarly situated individuals). See also 26
CFR 54.9802-1(f)(2), 29 CFR 2590.702 (f)(2), and 45 CFR 146.121(f)(2)
(providing limits on financial inducements when rewards are conditioned
on achieving certain health outcomes).\12\
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\12\ The 20 percent threshold described in the HIPAA
nondiscrimination rules will increase to 30 percent beginning in
2014 under statutory changes made under the Patient Protection and
Affordable Care Act, Public Law 111-148.
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Other comments appeared to suggest a combination of the approach
taken in the HIPAA regulations and the rule under the ADA as
articulated by EEOC in its Enforcement Guidance on Disability-Related
Inquiries and Medical Examinations of Employees Under the Americans
with Disabilities Act (July 27, 2000) (``Enforcement Guidance''). As we
understand this suggestion, the standard for determining whether a
wellness program is voluntary under the ADA--that a covered entity
neither requires participation nor penalizes individuals for non-
participation--should apply to GINA as well. See Enforcement Guidance
at Question 22. Any inducement that complied with the HIPAA ``twenty
percent rule'' should be deemed neither a penalty for non-participation
nor a requirement to participate. Inducements greater than those
allowed under the ``twenty percent rule'' would violate the standard
for voluntariness under the ADA and GINA. See Comments of AHIP, IPMA/
IMLA, KHH, NFIB, and Staywell Health Management.
A third approach merely asked that we allow employers to offer
inducements to promote employee participation in wellness programs, but
did not indicate whether inducements should be limited in any way. See
Comments of EEAC and Navigenics. Finally, several comments urged that
covered entities not be allowed to offer any monetary inducements to
promote participation in wellness programs that include the collection
of genetic information, including family medical history. See Comments
of ACLU, AMA, GPPC and World Privacy Forum.
Balancing the potential benefits of health and genetic services
offered to employees on a voluntary basis, including wellness programs,
with the need to construe exceptions to the prohibition of acquisition
of genetic information in a manner appropriately tailored to their
specific purposes, we have concluded that covered entities may offer
certain kinds of financial inducements to encourage participation in
health or genetic services under certain circumstances, but they may
not offer an inducement for individuals to provide genetic information.
As a result, the Commission concludes that it would not violate Title
II of GINA for a covered entity to offer individuals an inducement for
completing a health risk assessment that includes questions about
family medical history or other genetic information, as long as the
covered entity specifically identifies those questions and makes clear,
in language reasonably likely to be understood by those completing the
health risk assessment, that the individual need not answer the
questions that request genetic information in order to receive the
inducement. The regulation provides two examples to illustrate this
approach to health risk assessments.
We also believe that Title II allows covered entities to offer
financial inducements for participation in disease management programs
or other programs that encourage healthy lifestyles, such as programs
that provide coaching to employees attempting to meet particular health
goals (e.g., achieving a certain weight, cholesterol level, or blood
pressure).\13\ To avoid a violation of Title II of GINA, however,
covered entities who offer such programs and inducements to individuals
based on their voluntarily provided genetic information must also offer
the programs and inducements to individuals with current health
conditions and/or to individuals whose lifestyle choices put them at
risk of acquiring a condition.
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\13\ A wellness program that provides (directly, through
reimbursement, or otherwise) medical care (including genetic
counseling) may constitute a group health plan required to comply
with section 9802 of the Internal Revenue Code of 1986, 26 U.S.C.
9802, section 702 of the Employee Retirement Income Security Act of
1974 (ERISA), 29 U.S.C. 1182, or section 2705 of the Public Health
Service Act (i.e., Title I of GINA). Regulations issued under these
statutes impose special requirements on wellness programs that
collect genetic information. Moreover, wellness programs that
condition rewards on an individual satisfying a standard related to
a health factor must meet additional requirements. See 26 CFR
54.9802-1(f), 29 CFR 2590.702(f), and 45 CFR 146.121(f).
---------------------------------------------------------------------------
Recognizing that employers that sponsor group health plans
(including self-insured group health plans) are required to comply with
Title II of GINA when operating as employers, and that their plans are
required to comply with Title I of GINA, the Commission wishes to
provide examples of how Titles I and II allow employers and plans to
use financial incentives to promote employee wellness and healthy
lifestyles.\14\ The Commission notes that providing financial
incentives in compliance with these GINA Title II regulations does not
relieve covered entities of their responsibility to comply with other
GINA requirements under Title I, with other civil rights laws, such as
the ADA, and with other applicable laws and regulations. See
1635.8(b)(2)(iv) (indicating that the ADA requires ``reasonable
accommodations'' to enable individuals with disabilities to participate
fully in wellness programs, and that the HIPAA nondiscrimination rules
require plans and issuers to provide an individual with a ``reasonable
alternative'' (or waiver of the otherwise applicable standard), when it
is unreasonably difficult due to a medical condition to satisfy or
medically inadvisable to attempt to satisfy the otherwise applicable
standard, 26 CFR 54.9802-1(f)(2), 29 CFR 2590.702(f)(2), and 45 CFR
146.121(f)(2)) and 1635.8(b)(2)(v) (noting that wellness programs that
constitute group health plans may have to comply with Title I of GINA,
among
[[Page 68924]]
other laws). While the GINA Title II regulations and the interim rules
issued on October 7, 2009 to implement Title I (29 CFR 2590.702-1; 45
CFR 146.122, 26 CFR 54.9802-3T) each prohibit the use of financial
inducements to collect genetic information, they both permit covered
entities or group health plans (including self-insured plans) to:
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\14\ Whether an employer or other covered entity that sponsors a
group health plan chooses to provide benefits through self-insurance
or through a policy, certificate, or contract of insurance does not
affect the applicability of GINA Titles I and II. See 29 CFR
1635.11(b)(2) (discussing the relationship of GINA Titles I and II).
The above examples of actions permissible under both titles are
therefore helpful to all employers who offer health coverage to
employees, whether through self-insured or insured plans.
---------------------------------------------------------------------------
Provide bifurcated health risk assessments (HRAs), under
which financial incentives permitted under the applicable title may be
used to encourage individuals to complete the HRA, if the section of
the questionnaire seeking genetic information (e.g. family medical
history) includes a notice that completing that portion is optional and
that the reward will be provided whether that portion is completed or
not;
Use information collected through such bifurcated HRAs,
including voluntarily provided genetic information indicating that an
individual may be at risk for a disease, to target advertising
materials or otherwise solicit voluntary participation in a disease
management or prevention program, provided that such a program is also
available to individuals who do not provide genetic information as part
of the HRA (that is, the program is not limited only to individuals who
complete the portion of the HRA that requests genetic information);
Provide financial incentives permitted under the
appropriate title to individuals to participate in certain disease
management or prevention programs. The incentives to participate in
such programs must also be available to individuals who qualify for the
program but have not volunteered genetic information through an HRA.
Under the Title II regulation, covered entities may contract with a
third party to operate a wellness program or to provide other health or
genetic services, or may provide such programs and services through an
in-house health services office, as long as individually identifiable
genetic information is accessible only to the individual and the health
care provider involved in providing such services. Covered entities
must ensure that individually identifiable genetic information is not
accessible to managers, supervisors, or others who make employment
decisions, or to anyone else in the workplace.
Family and Medical Leave Act: Third, GINA recognizes that
individuals requesting leave to care for a seriously ill family member
under the Family and Medical Leave Act (FMLA) or similar state or local
law will be required to provide family medical history (for example,
when completing the certification form required by section 103 of the
FMLA). A covered entity that receives family medical history under
these circumstances would not violate GINA. This exception is needed
because, unlike the situations discussed under the inadvertent
acquisition exception, the receipt of genetic information in these
circumstances is not inadvertent. By asking the employee to provide the
information required by the FMLA certification form or similar state or
local laws when seeking leave to care for a seriously ill family
member, a covered entity is requesting family medical history from the
employee.
One commenter expressed concern that businesses that are not
covered by the FMLA or similar state or local laws, but who have
company policies allowing the use of leave to care for seriously ill
family members, would not be covered by this exception. See Comment of
the Small Business Administration (SBA). We agree that it was unclear
in the proposed rule whether acquisition of genetic information in such
circumstances would be covered by the exception and therefore provide
this clarification: This exception applies to an employer that is not
covered by the FMLA or similar state or local laws but that has a
policy allowing for the use of leave to care for ill family members, as
long as that policy is applied evenhandedly by requiring all employees
seeking leave to provide documentation about the health condition of
the relevant family member.\15\
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\15\ Although we also received a comment requesting that the
exception be limited to the acquisition of genetic information
directly relevant to the leave request--e.g., if the request is to
care for the employee's daughter, only information received about
the daughter's condition would be covered by the exception--we find
that such a requirement is beyond the scope of our enforcement
authority as it would be an attempt to limit the actions of the
employee's health care provider who completes the certification
form. See Comment of World Privacy Foundation.
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Of course, family medical history received from individuals
requesting leave pursuant to the FMLA, similar state or local laws, or
company policies, is still subject to GINA's confidentiality
requirements and must be placed in a separate medical file and treated
as a confidential medical record, as more fully described below.
Commercially and Publicly Available Information: Fourth, GINA
provides an exception for the purchase of commercially and publicly
available materials that may include family medical history. As with
the exception applicable to the inadvertent acquisition of family
medical history, the Commission reads this exception as applying to all
genetic information, not just to family medical history. For example,
an employer would not violate GINA if it learned that an employee had
the breast cancer gene by reading a newspaper article profiling several
women living with the knowledge that they have the gene.
The statute identifies newspapers, magazines, periodicals, and
books as potential sources of genetic information. The proposed
regulation added to that list information obtained through electronic
media, such as the Internet, television, and movies. The exception does
not include genetic information contained in medical databases or court
records. Research databases available to scientists on a restricted
basis, such as databases that NIH maintains for the scientific
community, would not be considered ``commercially and publicly
available.''
We received numerous comments in response to our queries as to
whether the additional sources noted in the proposed regulation should
remain part of the final regulation and whether there are sources
similar in kind to those identified in the statute that may contain
genetic information and should be included either in the group of
excepted sources or the group of prohibited sources, such as personal
Web sites or social networking sites. In general, civil rights groups
and groups promoting genetic research, as well as others, indicated
that excepted sources should be limited to widely available media with
no heightened risk for containing genetic information, providing a
variety of arguments in support of this position. See Comments of ACLU,
APA, CGF, FDIC, GPPC, Genetic Alliance, LCCR, Members of PGEP, and
World Privacy Forum. Several of these groups also noted that employers
who access commercially and publicly available materials with a
specific intent of searching for genetic information should not be
permitted to take advantage of the exception. See Comments of CGF,
FDIC, GPPC, Genetic Alliance, LCCR and World Privacy Forum. Employers
and employer groups, on the other hand, maintained that media formats
such as personal web pages, social networking sites, and blogs should
be part of the exception arguing, among other things, that such sources
are publicly available and that employers have legitimate reasons to
access them. See Comments of Chamber/SHRM, EEAC, Navigenics, NFIB, SBA
and TOC.\16\
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\16\ Chamber/SHRM reiterated its comment that a covered entity
must undertake an intentional act of requesting, requiring or
purchasing genetic information to violate the prohibition on
acquisition and argued that accessing a social networking site that
does not require payment is therefore outside the scope of Title II.
As explained above, we reject this interpretation of the statute.
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[[Page 68925]]
We conclude that a more detailed explanation of this exception is
necessary. First, we agree that media sources with limited access
should not be considered commercially and publicly available. Thus, if
a media source requires permission for access from a specific
individual, as opposed to a media source that simply requires users to
obtain a username and/or password, or if access is conditioned on
membership in a particular group (e.g., a professional organization),
the acquisition of genetic information through that source will not be
protected by this exception. For example, many Facebook, Linked In, My
Space profiles, and other social networking platforms require
permission from the creator of the profile to gain access to anything
beyond basic information such as name and profession and therefore
would not be considered commercially and publicly available, although
the exception at 1635.8(b)(1) would still apply to any genetic
information inadvertently obtained from such sources. On the other
hand, most personal Web sites and blogs are not so limited, but may
simply require users to obtain a username and/or password, and
therefore would be considered commercially and publicly available. Of
course, there are profiles or portions thereof on social networking
sites that do not require permission to access, and there may be
situations in which access to a social networking site is granted
routinely, so that access cannot be said to be limited. There are also
Web sites and blogs that do limit access. The determining factor, then,
in deciding whether a media source is commercially and publicly
available is whether access requires permission of an individual or is
limited to individuals in a particular group, not whether the source is
categorized as a social networking site, personal Web site, or blog.
Second, we agree that the exception does not apply to genetic
information acquired by covered entities that access commercially and
publicly available sources with the intent of obtaining genetic
information. This exception was intended to protect from liability a
covered entity that inadvertently obtains genetic information and not a
covered entity that is actively searching for genetic information. See
S. Rep. 110-48 at 30 (``The fourth exception, like the first, relates
to the inadvertent acquisition of family medical history.''). For
example, an employer who acquires genetic information by conducting an
Internet search for the name of an employee and a particular genetic
marker will not be protected by this exception, even if the information
the employer ultimately obtained was from a source that is commercially
and publicly available. Conversely, an employer who inadvertently
acquires genetic information while conducting an Internet search of an
employee without reference to a genetic marker will be protected by
this exception.
Third, we have concluded that the exception does not apply to the
acquisition of genetic information through a media source, whether or
not it is commercially and publicly available, if the covered entity is
likely to acquire genetic information by accessing that source. Thus, a
covered entity that acquires genetic information after accessing a Web
site that focuses on issues such as genetic testing of individuals or a
commercial database containing individually identifiable health
information \17\ will not be able to take advantage of this exception.
Finally, in response to comments from some employer groups that human
resource professionals and other employers may access various media
sources for personal reasons and not in their capacity as covered
entities, we clarify that the requirements and prohibitions of GINA do
not apply to acquisitions of genetic information outside the employment
context. See Comments of NFIB and Navigenics.
---------------------------------------------------------------------------
\17\ For example, one commenter provided several lists of
identifiable individuals with diabetes available for sale on the
Internet. See Comment of World Privacy Forum.
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In response to one comment we received, we further clarify that
genetic information about an individual acquired through any media
source, including one that is commercially and publicly available or a
source accessed outside the employment context, may not be used to
discriminate in employment decision-making and may not be disclosed in
violation of Title II's confidentiality provisions. See Comment of
National Counsel of EEOC Locals no. 216, American Federation of
Government Employees, AFL-CIO (AFGE).
Genetic Monitoring: The statute also permits a covered entity to
engage in the genetic monitoring of the biological effects of toxic
substances in the workplace, as long as that monitoring meets certain
requirements. First, a covered entity must provide written notice of
the monitoring and, where the monitoring is not specifically required
by federal or state law or regulation, must obtain an individual's
prior knowing, written, and voluntary authorization. Second, the
regulation describes the type of authorization form the employer must
provide in order to ensure that an individual's authorization is
knowing and voluntary. The authorization form must be written in a way
that is reasonably likely to be understood by the person from whom the
information is being sought, must describe the type of genetic
information that will be obtained and the general purposes for which it
will be used, and must describe the limitations on disclosure of the
genetic information. Third, all monitoring must comply with all
applicable provisions of the law and implementing regulations,
including regulations promulgated pursuant to the Occupational Safety
and Health Act of 1970 (29 U.S.C. 651 et seq.), the Federal Mine Safety
and Health Act of 1977 (30 U.S.C. 801 et seq.), and the Atomic Energy
Act of 1954 (42 U.S.C. 2011 et seq.).
Whether or not the monitoring is undertaken pursuant to federal or
state law, GINA requires that the individual receive results of the
monitoring and that the covered entity receive information only in
aggregate terms that do not disclose the identity of specific
individuals. As is the case with health or genetic services offered by
a covered entity on a voluntary basis, we have concluded that there is
no violation of GINA if a covered entity receives information only in
aggregate terms, but is able to identify the genetic information of
specific individuals for reasons outside the covered entity's control
and with no effort on its part (e.g., because of the small number of
employees involved in the monitoring). We have revised the language in
the final regulation to mirror the statutory language.
Several commenters mentioned the need for a provision in the final
regulation that protects workers who refuse to participate in genetic
monitoring that is not required by law. See Comments of ACLU, CGF,
Genetic Alliance, GPPC and LCCR. These commenters also requested that
the final regulation describe what actions a covered entity may
legitimately take in response to such a refusal. Id. We agree with
these groups that GINA prohibits a covered entity from retaliating or
otherwise discriminating against an employee who refuses to participate
in genetic monitoring that is not specifically required by law. An
individual who refuses to participate in a voluntary genetic monitoring
program
[[Page 68926]]
should be informed of the potential dangers (e.g., the consequences
that might result if the effects of certain toxins in the workplace are
not identified), but the covered entity is prohibited from taking any
adverse action, as that term is understood under Title VII of the Civil
Rights Act of 1964 and other civil rights laws, against the individual.
DNA Testing for Law Enforcement or Human Remains Identification
Purposes: Finally, sections 202(b), covering employers, and 205(b),
covering apprenticeship or other training programs, include a sixth
exception for employers that engage in DNA testing for law enforcement
purposes as a forensic lab or for purposes of human remains
identification. GINA provides that these entities may request or
require genetic information of such employer's employees, apprentices,
or trainees, ``but only to the extent that such genetic information is
used for analysis of DNA identification markers for quality control to
detect sample contamination.'' 42 U.S.C. 2000ff-1(b)(6) and 2000ff-
4(b)(6). The genetic information may be maintained and disclosed in a
manner consistent with this limited use. This is a very limited
exception and, if the analysis is properly conducted, an employer or
training program would not obtain health-related genetic information.
Several comments, while expressing general agreement with EEOC's
position, requested that the final regulation make clear that genetic
information covered by this exception must be destroyed after a
designated time period and that the samples and results be used solely
for quality control and not be entered into any law enforcement
database. See Comments of CGF, Genetic Alliance, and GPPC. We find that
it is unnecessary to add any further limitations to those set forth in
the statute and the proposed regulation. Both make clear that this is a
very limited exception, allowing only for the use of genetic
information for analysis of DNA identification markers for quality
control and to detect sample contamination, and not for any other law
enforcement purpose. Rather than specifying in the regulation how such
information should be used, we believe it is sufficient to state, as
the final rule does, that the information may be used in accordance
with the purpose for which it was acquired.
Section 1635.8(c)
We have added a new provision to 1635.8. Subsection (c)(1) responds
to a comment that said that information about an employee's manifested
disease, disorder, or pathological condition should not be considered
genetic information (i.e. family medical history) about a family member
working for the same employer. See Comment of Chamber/SHRM. We decline
to take this position in the final rule, because we believe that the
information would be family medical history that an employer could not
use to discriminate against, or disclose with respect to, the second
employee. We agree, however, that a request for information about
whether an individual has a manifested disease, disorder, or
pathological condition does not violate GINA simply because a family
member of the individual to whom the request was made works for the
same employer, is a member of the same labor organization, or is
participating in the same apprenticeship program as the person from
whom the information was requested. We have modified the final rule to
reflect this more limited point.
Section 1635.8(c)(2) addresses a related issue that may arise when
an individual's family member who, although not an employee of the same
employer, a member of the same labor organization, or a participant in
the same apprenticeship program as the individual, nevertheless
receives health or genetic services offered by a covered entity as
permitted under 1635.8(b)(2). The collection of information about the
manifested disease or disorder of a family member in the course of
providing health or genetic services to the family member is not an
unlawful acquisition of genetic information about the individual.
Section 1635.8(d)
We received several comments concerning the extent to which health
care professionals may request genetic information (particularly family
medical history) as part of a lawful medical examination (e.g., a post-
offer exam or fitness for duty exam) to determine whether an individual
has a manifested disease, disorder, or pathological condition. A number
of comments suggested that the final rule should not necessarily limit
the scope of the inquiries a health care professional may make, but
should ensure that any genetic information collected as part of the
examination is not shared with the employer. See Comments of AMA,
Chamber/SHRM, EEAC and IPMA; see also Comments of United States Customs
and Immigration Service (requesting clarification on this point). We do
not think it is sufficient for an employer or other covered entity
merely to indicate to the health care professional conducting a medical
examination on its behalf that the covered entity does not want to
receive genetic information acquired as part of the examination. The
final rule says that the covered entity must tell the health care
professional not to collect genetic information as part of a medical
examination intended to determine the ability to perform a job, and
must take additional reasonable measures within its control if it
learns that genetic information is being requested or required. This
could include no longer using the services of a health care
professional who continues to request or require genetic information
during medical examinations after being informed not to do so. Unlike
the warning described in 1635.8(b)(1), which may not be necessary if a
covered entity can show that it could not have known it would receive
genetic information in response to a lawful request for medical
documentation, the warning provided for in 1635.8(d) is required,
because any time an employer sends an applicant or employee for a
medical examination, the employer knows or should know that genetic
information is likely to be requested. We note, however, that family
medical history and other genetic information may be obtained as part
of health or genetic services provided by the employer (see 29 CFR
1635.8(b)(2)), and that Title II of GINA does not apply at all to
medical examinations conducted for the purpose of diagnosis and
treatment that are unrelated to employment (e.g., where an employee
seeks health services from the same hospital where he or she works).
See 1635.1(b)(1).
The preamble to the proposed rule suggested that there would never
be situations in which genetic information (including family medical
history) would be needed as part of a medical examination conducted to
assess an individual's ability to perform a job. One federal agency
asked whether the final rule would include an exception allowing an
employer or other covered entity to collect family medical history
(e.g., questions about the prevalence of a psychiatric disability in
family members of an individual) as part of the process of determining
whether to grant or deny a security clearance. See Comments of United
States Customs and Immigration Services. Neither the plain language of
Title II, which enumerates very specific exceptions to the rule
prohibiting acquisition of genetic information, nor GINA's legislative
history references such an exception; therefore, the Commission
declines to include one in the final rule.
[[Page 68927]]
In response to comments from some employers that genetic
information may be needed to make a diagnosis of a manifested disease,
disorder, or pathological condition, we considered adding a very narrow
exception to the prohibition on acquiring genetic information to allow
a covered entity or health care professional acting on the covered
entity's behalf to request genetic information as part of a medical
examination where doing so is necessary to determine whether an
individual has a particular manifested disease, disorder, or
pathological condition and where information about the particular
disease, disorder, or pathological condition, as opposed to its signs
and symptoms, is necessary to evaluate an individual's ability to
perform a particular job. See Comments of AHIP, Chamber/SRHM, EEAC and
SBA. We decided against creating this extra-statutory exception,
however, because neither the commenters that raised this concern nor
the experts with whom we consulted were able to provide an example that
fits within it. Although there may be cases where a manifested disease,
disorder, or pathological condition can only be positively diagnosed
through use of genetic information, there does not appear to be a case
in which the diagnosis, as opposed to the signs and symptoms, is
necessary to evaluate an individual's ability to perform a particular
job. For example, although experts at the National Institutes of Health
noted that a genetic test may be used to confirm a diagnosis of cystic
fibrosis based principally on the clinical analysis of the patient, the
signs or symptoms of cystic fibrosis (including, for example, frequent
lung infections, sinusitis, bronchitis and pneumonia, and nasal polyps,
among others) would be sufficient, regardless of the specific disease,
disorder, or pathological condition that may be causing them, to assess
an individual's ability to do a job. Moreover, in the case of cystic
fibrosis, it is extremely unlikely that an individual seeking
employment would be unaware of his or her diagnosis. Because we have no
information supporting the need for this type of exception, we decided
not to add to the exceptions specifically described in the statute.
Section 1635.9 Confidentiality
GINA section 206 addresses confidentiality of genetic information
generally, establishes permitted disclosures, and describes the
relationship between GINA and HIPAA. Each of these items is discussed
below.
Section 1635.9(a) Treatment of Genetic Information
Under GINA, covered entities are required to treat genetic
information in their possession the same way they treat medical
information generally. They must keep the information confidential and,
if the information is in writing, must keep it apart from other
personnel information in separate medical files.\18\ Congress made
express the requirement that covered entities keep genetic information
confidential by using the confidentiality regime required by the ADA
generally for medical records. H.R. Rep. 110-28, part I, at 39. GINA
does not require that covered entities maintain a separate medical file
for genetic information. Genetic information may be kept in the same
file as medical information subject to the ADA.
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\18\ Genetic information that a covered entity receives verbally
and does not reduce to writing must still be kept confidential,
except to the extent that GINA permits disclosure. As noted in the
regulation at 1635.9(a)(3), a covered entity need not reduce to
writing genetic information that it receives orally. Although one
commenter requested that this language be altered to indicate that
covered entities should not reduce genetic information that it
receives orally to writing, we have decided to maintain the existing
language. See Comment of DLRC. This language was inserted in the
proposed rule to respond to concerns that GINA required employers to
reduce to writing any genetic information received.
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In response to questions raised by commenters, we note that
although genetic information placed in personnel files prior to the
effective date of GINA Title II need not be removed and an employer
will not be liable under GINA for the mere existence of the information
in the file, disclosing such information to a third party is
prohibited. See Comments of EEAC and SBA. GINA's prohibitions on use
and disclosure of genetic information apply to all genetic information
that meets the statutory definition, including genetic information
acquired prior to the effective date of GINA. See Comments of CGF,
Genetic Alliance, and GPPC (requesting clarification of this point). We
would not anticipate that removing genetic information in a personnel
file acquired before GINA's effective date in response to a request to
disclose the file would impose a significant burden on covered
entities. Most genetic information is medical information that has been
subject to the ADA's confidentiality requirements since 1992 (with
respect to employers with 25 or more employees) or 1994 (with respect
to employers with 15 to 24 employees). Consequently, although all
covered entities must remove genetic information from personnel files
prior to disclosing those files, we would anticipate that covered
entities who have been complying with the ADA will have very few
personnel files that contain genetic information.
We received one comment questioning what an employer should do if
it is aware that employees are discussing genetic information of co-
workers with other employees. See Comment of Navigenics. We do not
think this has been a significant problem under the ADA, which has a
similar confidentiality rule pertaining to employee medical information
in general, and therefore do not think that many charges will be filed
alleging that a covered entity violated GINA by allowing co-workers to
share genetic information about another individual. However, we note
that the analysis of an employer's responsibility to prevent harassment
by co-workers is instructive--an employer is liable for harassment of
an employee by co-workers if it knew or should have known of the
misconduct, unless it can show that it took immediate and appropriate
corrective action. See 29 CFR 1604.11(d). We believe a similar standard
would work well in the case of an employer's responsibility to prevent
individuals from discussing the genetic information of co-workers.
Chamber/SHRM requested that the final regulation clarify that
certain communications are exempt from GINA's confidentiality
provisions, such as communications to a contractor performing relevant
business functions (e.g., storing medical information on behalf of an
employer) or to attorneys for purposes of litigation or legal
assessment. This clarification is not necessary. First, it is apparent
that a covered entity's attorney or a business with whom it has
contracted to store medical information on its behalf is an agent of
the covered entity and would therefore be permitted access to relevant
genetic information. Second, as noted above, GINA uses the
confidentiality regime required by the ADA generally for medical
records. This regime does not include specific exceptions for
communications to attorneys for the purposes of litigation or to
contractors performing relevant business functions; yet we have not
seen any charges challenging these types of communications.
As noted above, a covered entity does not violate GINA when it
acquires genetic information through sources that are publicly and
commercially available, as long as it does not research those sources
with the intent of acquiring genetic information or access sources that
are likely to include genetic
[[Page 68928]]
information. For example, an employer that purchased a newspaper with
an obituary about a family member of an employee indicating that the
employee's relative died of a disease or disorder that has a genetic
component would not violate GINA. Similarly, a labor organization may
lawfully acquire a magazine or periodical with an article about a
member that includes family medical history about the member's parent,
sibling, or child. In neither instance, nor in any similar instance
where a covered entity acquires family medical history through sources
that are publicly and commercially available, must the covered entity
place the information into a confidential medical file. Moreover,
inasmuch as one of GINA's purposes is the protection from disclosure of
otherwise private genetic information, disclosure of genetic
information obtained through sources that are commercially and publicly
available does not violate the Act. However, a covered entity may not
use family medical history to make employment decisions, even if the
information was acquired through commercially and publicly available
sources.
Section 1635.9(b) Exceptions to Limitations on Disclosure
GINA permits disclosure of genetic information in limited
circumstances. First, a covered entity may disclose genetic information
to the individual to whom it relates, if the individual requests
disclosure in writing. Second, the section states that genetic
information may be provided to an occupational or other health
researcher ``if the research is being conducted in compliance with the
regulations under'' 45 CFR part 46 (regulating research involving human
subjects). One commenter requested that this type of disclosure only be
permitted if participation in the research is voluntary and the
information obtained is not used for secondary research purposes. See
Comment of ACLU. The requirements of 45 CFR part 46 itself, however,
include obtaining the informed consent of research participants, which
involves fully informing participants of the purposes and risks of the
research, as well as the extent to which confidentiality of identifying
records will be maintained. See 45 CFR 46.116. We need not adopt
further safeguards in these circumstances.
The third exception permits disclosure in compliance with a court
order. It provides that the disclosure of genetic information must be
carefully tailored to the terms of the order. Moreover, the language of
the regulation, taken from the statute, notes that if the court order
was secured without the knowledge of the employee or member to whom the
information refers, the covered entity must inform the employee or
member of the court order and the information that was disclosed.
Because the covered entity may not know whether the employee or member
is aware of the court order, it should inform the employee or member of
the court order and the disclosed information unless it knows that the
employee or member already has this information. This exception does
not allow disclosures in other circumstances during litigation, such as
in response to discovery requests or subpoenas that are not governed by
an order specifying that genetic information must be disclosed. Thus, a
covered entity's refusal to provide genetic information in response to
a discovery order, subpoena, or court order that does not specify that
genetic information must be disclosed is consistent with the
requirements of GINA.
The fourth exception permits disclosure of relevant genetic
information to government officials investigating compliance with the
statute. The fifth exception permits disclosure consistent with the
requirements of the FMLA or similar state or local leave law. For
example, an employee's supervisor who receives a request for FMLA leave
from an employee who wants to care for a child with a serious health
condition may forward this request to persons with a need to know the
information because of responsibilities relating to the handling of
FMLA requests. Finally, the sixth exception permits disclosure of
family medical history to federal, state, or local public health
officials in connection with a contagious disease that presents an
imminent hazard of death or life-threatening illness. The statute
requires the covered entity to notify the employee of any release of a
family member's medical history information when undertaken for this
purpose.
Section 1635.9(c) Relationship to HIPAA Privacy Regulations
GINA section 206(c) provides that the provisions of Title II of
GINA are not intended to apply to uses and disclosures of health
information governed by the HIPAA Privacy Rule. Accordingly, and
consistent with the general rule of construction implementing this
statutory provision at 1635.11(d), this rule provides at 1635.9(c) that
nothing in 1635.9 should be construed as applying to the use or
disclosure of genetic information that is protected health information
subject to the HIPAA Privacy Rule. See discussion of Section
1635.11(d), infra, for an example of the interaction under GINA between
the HIPAA Privacy Rule and this regulation.
Section 1635.10 Enforcement and Remedies
In crafting GINA's enforcement and remedies section, Congress
recognized the advisability of using the existing mechanisms in place
for redress of other forms of employment discrimination. In particular,
the Senate noted that this section intends to take ``advantage of the
expertise and process of the EEOC.'' S. Rep. No. 110-48, at 31 & n.17.
In this regard, GINA and the final regulation provide the following:
The enforcement mechanism applicable and remedies
available to employees and others covered by Title VII of the Civil
Rights Act of 1964 apply to GINA as well.\19\ The statute references
sections 705-707, 709-711, and 717 of Title VII, 42 U.S.C. 2000e-4, et
seq. The Commission notes that its implementing regulations found at 29
CFR parts 1601 (procedural regulations), 1602 (recordkeeping and
reporting requirements under Title VII and the ADA), and 1614 (federal
sector employees) apply here as well.
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\19\ As defined by section 701 of the Civil Rights Act of 1964,
42 U.S.C. 2000e, an employee is an individual employed by a person
engaged in an industry affecting commerce who has fifteen or more
employees for each working day in each of twenty or more calendar
weeks in the current or preceding calendar year and any agent of
such a person.
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The procedures applicable and remedies available to
employees covered by sections 302 and 304 of the Government Employee
Rights Act of 1991, 42 U.S.C. 2000e-16(b) & (c) (GERA) apply under
GINA.\20\ EEOC regulations applicable to GERA are found at 29 CFR part
1603.
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\20\ As defined by section 304(a) of GERA, 42 U.S.C. 2000e-
16c(a), an employee is a person chosen or appointed by an individual
elected to public office by a State or political subdivision of a
State to serve as part of the personal staff of the elected
official, to serve the elected official on a policy-making level, or
to serve the elected official as the immediate advisor on the
exercise of the elected official's constitutional or legal powers.
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The procedures applicable and remedies available to
employees covered by 3 U.S.C. 401 et seq. are set forth in 3 U.S.C.
451-454.\21\ These
[[Page 68929]]
sections provide for counseling and mediation of employment
discrimination allegations and the formal process of complaints before
the Commission using the same administrative process generally
applicable to employees in the Executive Branch of the Federal
---------------------------------------------------------------------------
government; that is, the process set forth in 29 CFR part 1614.
\21\ As defined by, and subject to the limitations in, section
2(a) of the Presidential and Executive Office Accountability Act, 3
U.S.C. 411(c), these employees include any employee of the executive
branch not otherwise covered by section 717 of the Civil Rights Act
of 1964, 42 U.S.C. 2000e-16, section 15 of the Age Discrimination in
Employment Act of 1967, 29 U.S.C. 633a, or section 501 of the
Rehabilitation Act of 1973, 29 U.S.C. 791, whether appointed by the
President or any other appointing authority in the executive branch,
including an employee of the Executive Office of the President.
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Employees covered through the Congressional Accountability Act of 1995
must use the procedures set forth in that statute. The Commission has
no authority with respect to the enforcement of GINA as to employees
covered through this provision.
The final regulation includes a separate reference to the remedies
provisions applicable to GINA. Similar to other federal anti-
discrimination laws, GINA provides for recovery of pecuniary and non-
pecuniary damages, including compensatory and punitive damages. The
statute's incorporation by reference of section 1977A of the Revised
Statutes of the United States (42 U.S.C. 1981a) also imports the
limitations on the recovery of compensatory damages for future
pecuniary losses, emotional pain, suffering, etc., and punitive damages
applicable generally in employment discrimination cases, depending on
the size of the employer. Punitive damages are not available in actions
against the federal government, or against state or local government
employers.
Finally, at 1635.10(c) the regulation notes that covered entities
are required to post notices in conspicuous places describing GINA's
applicable provisions. The Commission issued a revised EEO poster that
may be used for this purpose prior to GINA's effective date (November
21, 2009). It is available to order or print on EEOC's Web site at
http://www1.eeoc.gov/employers/poster.cfm.
Section 1635.11 Construction
GINA section 209 and this section of the regulation set forth rules
of construction applicable to GINA's coverage and prohibitions. They
address principally GINA's relationship to other federal laws covering
discrimination, health insurance, and other areas of potential
conflict.
Section 1635.11(a) Relationship to Other Laws Generally
The subsection first addresses the relationship of Title II of GINA
to other federal, state, local, and tribal laws governing genetic
discrimination, the privacy of genetic information, and discrimination
based on disability. Over 30 states have laws addressing genetic
discrimination in employment. Some may be more stringent than GINA;
others less so. GINA makes clear that it does not preempt any other
state or local law that provides equal or greater protections than GINA
from discrimination on the basis of genetic information or improper
access or disclosure of genetic information. Additionally, Title II of
GINA does not limit the rights or protections under federal, state,
local or tribal laws that provide greater privacy protection to genetic
information. The EEOC will provide information on our public Web site
about state and local laws that prohibit employment discrimination on
the basis of genetic information. See Comment of SBA (requesting more
information about state and local laws addressing genetic information).
Similarly, GINA does not affect an individual's rights under the
ADA, the Rehabilitation Act, or state or local laws that prohibit
discrimination against individuals based on disability. So, for
example, an individual could challenge the disclosure of genetic
information under the ADA where the information is also considered
medical information subject to that law. Additionally, even though
information that an employee currently has a disease, such as cancer,
is not subject to GINA's confidentiality provisions, such information
would be protected under the ADA, and an employer would be liable under
that law for disclosing the information, unless a specific ADA
exception applied.
GINA does limit, however, an employer's ability to obtain genetic
information as a part of a disability-related inquiry or medical
examination. For example, an employer will no longer be able to obtain
family medical history or conduct genetic tests of post-offer job
applicants, as it currently may do under the ADA. We reiterate,
however, that family medical history and other genetic information may
be acquired in connection with employer-provided health or genetic
services, including wellness programs, that are provided on a voluntary
basis (see 1635.8(b)(2)), and that Title II of GINA does not apply to
genetic information acquired as part of a medical examination conducted
for the purpose of diagnosis and treatment that is wholly unrelated to
employment (e.g., where an employee seeks health services from the
hospital where he or she works).
Other provisions in this section clarify that GINA does not (1)
limit or expand rights or obligations under workers' compensation laws;
(2) limit or expand the rights of federal agencies to conduct or
support occupational or other health research conducted in accordance
with the rules found in 45 CFR part 46; or (3) limit the statutory or
regulatory authority of the Occupational Safety and Health
Administration or the Mine Safety and Health Administration or other
workplace health and safety laws and regulations. Another provision
addresses the exemption from GINA of the Armed Forces Repository of
Specimen Samples for the Identification of Remains.
The final provision in this subsection makes clear that GINA does
not require that a covered entity provide individuals with any specific
benefits or specialized health coverage. A covered entity does not have
to offer health benefits that relate to any specific genetic disease or
disorder. GINA merely requires that the covered entity not discriminate
against those covered by the Act on the basis of genetic information.
Section 1635.11(b) Relationship to Other Federal Laws Governing Health
Coverage
GINA section 209(a)(2)(B) includes four subsections that address
the relationship between Title II and requirements or prohibitions that
are subject to enforcement under other federal statutes addressing
health coverage. Section 209(a)(2)(B)(i) states that nothing in Title
II provides for enforcement of, or penalties for, violations of
requirements or prohibitions subject to enforcement under GINA Title I.
The three following subsections, sections 209(a)(2)(B)(ii)-(iv), state
that nothing in Title II provides for enforcement of, or penalties for,
any requirement or prohibition subject to enforcement under various
sections of ERISA, the Public Health Service Act, and the Internal
Revenue Code, which generally prohibit a group health plan or health
insurance issuer in the group market from:
Imposing a preexisting condition exclusion based solely on
genetic information, in the absence of a diagnosis of a condition;
Discriminating against individuals in eligibility and
continued eligibility for benefits based on genetic information; and
[[Page 68930]]
Discriminating against individuals in premium or
contribution rates under the plan or coverage based on genetic
information, although such a plan or issuer may adjust premium rates
for an employer based on the manifestation of a disease or disorder of
an individual enrolled in the plan.
The intent of this section is to create a clear ``firewall''
between GINA Titles I and II so that health plan or issuer provisions
or actions are addressed and remedied through GINA Title I, ERISA, the
Public Health Service Act, or the Internal Revenue Code and not through
Title II and other employment discrimination procedures.
We received a variety of comments requesting further clarification
of the firewall provision. Employer groups argued that the final
regulation should make very clear that the firewall is broad. See
Comments of ABC, Blue Cross and Blue Shield Association (BCBSA),
Chamber/SHRM and NFIB. Some of these same groups requested that more
specific language about the lack of double liability be inserted into
the regulation itself and provided model language for this purpose. See
Comments of ABC, Blue Cross and Blue Shield Association, (BSBCA), and
Chamber/SHRM. Civil rights groups, groups promoting genetic research,
and others argued that the final rule should clarify that the firewall
was not intended to immunize from liability decisions and actions that
violate Title II, simply because those decisions involve health
benefits governed by Title I. See Comments of CGF, Congressional
Committee on Education and Labor (CCEL) (offering specific model
language), Genetic Alliance, and GPPC. CCEL argued that the proposed
regulation failed to make clear that liability under GINA is based on
the actor who discriminates (i.e., employers or health plans/insurers)
and not the act of discrimination. See Comment of CCEL. Commenters also
requested that the final regulation include additional examples
illustrating how the firewall will work, with one commenter providing
specific examples for this purpose. See Comments of CCEL (providing
specific examples and model language), Navigenics and SBA. We agree
that further clarification of the firewall is required and, after
careful review of the comments received, have made the necessary
changes to the preamble and the final regulation.
Section 209(a)(1)(B) eliminates ``double liability'' for health
plans and insurers by preventing Title II causes of action from being
asserted regarding matters subject to enforcement under Title I or the
other genetics provisions for group coverage in ERISA, the Public
Health Service Act, and the Internal Revenue Code. The firewall seeks
to ensure that health plan or issuer provisions or actions are
addressed and remedied through ERISA, the Public Health Service Act, or
the Internal Revenue Code, while actions taken by employers and other
GINA Title II entities are remedied through GINA Title II. The
regulation reiterates the language of the section, noting the specific
sections from ERISA, the Public Health Service Act, and the Internal
Revenue Code that the section covers.
Employers and other GINA Title II covered entities, however, would
remain liable for any of their actions that violate Title II, even
where those actions involve access to health benefits, because such
benefits are within the definition of compensation, terms, conditions,
or privileges of employment. For example, an employer that fires an
employee because of anticipated high health claims based on genetic
information remains subject to liability under Title II. On the other
hand, health plan or issuer provisions or actions related to the
imposition of a preexisting condition exclusion; a health plan's or
issuer's discrimination in health plan eligibility, benefits, or
premiums based on genetic information; a health plan's or issuer's
request that an individual undergo a genetic test; and/or a health
plan's or issuer's collection of genetic information remain subject to
enforcement under Title I exclusively. Below are a few examples of how
the firewall is intended to operate:
If an employer contracts with a health insurance issuer to
request genetic information, the employer has committed a Title II
violation. In addition, the plan and issuer may have violated Title I
of GINA.
If an employer directs its employees to undergo mandatory
genetic testing in order to be eligible for health benefits, the
employer has committed a Title II violation.
If an employer or union amends a health plan to require an
individual to undergo a genetic test, then the employer or union is
liable for a violation of Title II. In addition, the health plan's
implementation of the requirement may violate Title I.
Section 1635.11(c) Relationship to Authorities Under GINA Title I
The final subsection in GINA section 209 provides that nothing in
GINA Title II prohibits a group health plan or group health insurance
issuer from engaging in any activity that is authorized under the GINA
Title I provisions identified in GINA section 209(a)(2)(B)(i)-(iv),
including any implementing regulations thereunder. The section and the
implementing regulation reiterate the limitations imposed on Title II
in the area of group health coverage.
Section 1635.11(d) Relationship to HIPAA Privacy Regulations
Final Sec. 1635.11(d) implements section 206(c) of GINA Title II
by providing, as a general rule of construction, that this regulation
does not apply to protected health information subject to the HIPAA
Privacy Rule. Thus, entities subject to the HIPAA Privacy Rule must
continue to apply the requirements of the HIPAA Privacy Rule, and not
the requirements of GINA Title II and these implementing regulations,
to genetic information that is protected health information. For
example, if a hospital subject to the HIPAA Privacy Rule treats a
patient who is also an employee of the hospital, any genetic
information that is obtained or created by the hospital in its role as
a health care provider is protected health information and is subject
to the requirements of the HIPAA Privacy Rule and not those of GINA. In
contrast, however, any genetic information obtained by the hospital in
its role as employer, for example, as part of a request for leave by
the employee, would be subject to GINA Title II and this rule.
Similarly, a health care provider may share genetic information,
consistent with the HIPAA Privacy Rule, in the course of providing
genetic services as part of a voluntary wellness program.
Several commenters requested that the final regulation make clear
that genetic information obtained by a health care provider covered by
the HIPAA Privacy Rule may not be used in making employment decisions
and must be kept separate from employment files. See Comments of CGF,
Genetic Alliance and GPPC. Another commenter was concerned that the
language in the proposed preamble suggested that an entity covered by
both the HIPAA Privacy Rule and GINA can use genetic information to
discriminate against applicants and employees because the requirements
of GINA do not apply to it. See Comment of World Privacy Forum. In
response to these comments, we clarify that all entities covered by
Title II of GINA, whether or not they are also covered by the HIPAA
Privacy Rule, must follow the requirements of GINA when they are acting
as employers.
Section 1635.12 Medical Information That Is Not Genetic Information
The final regulation states that a covered entity does not violate
GINA by
[[Page 68931]]
acquiring, using, or disclosing medical information about a manifested
disease or disorder that is not genetic information, even if the
disease or disorder may have a genetic basis or component. It further
notes, however, that the ADA, and the applicable regulations issued in
support of the Act, would limit the disclosure of genetic information
that also is medical information and covered by the ADA. In response to
a comment, we clarify that GINA prohibits discrimination based on
genetic information and not on the basis of a manifested condition,
while the ADA prohibits discrimination on the basis of manifested
conditions that meet the definition of disability. See Comment of ICC.
Although another commenter expressed concern that neither GINA nor the
ADA protects individuals with a manifested genetic disease that is not
yet substantially limiting, we note that we have no authority under
these regulations to expand the coverage of GINA. See Comment of Burton
Blatt Institute. Moreover, given the broader definition of disability
that now exists under the Americans with Disabilities Act Amendments
Act (ADAAA), it is less likely that a significant number of individuals
will fall within this gap. Perhaps most notably, the revised definition
of the ``regarded as'' definition of ``disability'' would apply to
anyone against whom an employer or other covered entity takes a
prohibited action (e.g., failure to hire or termination) based on an
actual or perceived physical or mental impairment that is not
transitory (lasting or expected to last for six months or less) and
minor. See 42 U.S.C. 12102(3)(A).
Regulatory Procedures
Executive Order 12866
Pursuant to Executive Order 12866, EEOC has coordinated this final
rule with the Office of Management and Budget. Under section 3(f)(1) of
Executive Order 12866, EEOC has determined that the regulation will not
have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or state, local or tribal governments or communities.
Therefore, a detailed cost-benefit assessment of the regulation is not
required.
Paperwork Reduction Act
This rule contains no new information collection requirements
subject to review by the Office of Management and Budget under the
Paperwork Reduction Act (44 U.S.C. chapter 35).
Regulatory Flexibility Act
Title II of GINA applies to all employers with fifteen or more
employees, approximately 822,000 of which are small firms (entities
with 15-500 employees) according to data provided by the Small Business
Administration Office of Advocacy. See Firm Size Data at http://sba.gov/advo/research/data.html#us.
The Commission certifies under 5 U.S.C. 605(b) that this final rule
will not have a significant economic impact on a substantial number of
small entities because it imposes no reporting burdens and only minimal
costs on such firms. GINA is intended to prevent discrimination based
on concerns that genetic information about an individual suggests an
increased risk of, or predisposition to, acquiring a condition in the
future. Because individuals protected under GINA do not have currently
manifested conditions that would result in any workplace barriers, the
law imposes no costs related to making workplace modifications. To the
extent GINA requires businesses that obtain genetic information about
applicants or employees to maintain it in confidential files, GINA
permits them to do so using the same confidential files they are
already required to maintain under Title I of the Americans with
Disabilities Act.
The Act may require some modification to the post offer/pre-
employment medical examination process of some employers, to remove
from the process questions pertaining to family medical history. We do
not have data on the number and size of businesses that obtain family
medical history as part of a post-offer medical examination. However,
our experience with enforcing the ADA, which required all employers
with fifteen or more employees to remove medical inquiries from their
application forms, suggests that revising post-offer medical
questionnaires to eliminate questions about family medical history
would not impose significant costs. We recognize that some employers
who currently request medical information from employees verbally may
decide to make such requests in writing and may create a form for this
purpose, in response to the safe harbor described in 1635.8(b)(1)(i).
We have no data that would enable us to determine how many businesses
will change their practices, but do not believe the cost of creating a
form for those businesses who choose to do so would be significant.
GINA will require that covered entities obtain and post revised
notices informing covered individuals of their rights under the law.
Employers will not incur any costs related to obtaining or posting
these notices because the Commission provides employers, at no cost, a
poster explaining the EEO laws that will be updated to include
information about GINA.
To the extent that employers will need to expend resources to train
human resources staff and others on the requirements of GINA, we note
that the EEOC conducts extensive outreach and technical assistance
programs, many of them at no cost to employers, to assist in the
training of relevant personnel on EEO-related issues. In FY 2008, for
example, EEOC's outreach efforts included 5,360 education, training,
and outreach events reaching over 270,000 people. EEOC District offices
conducted 530 no-fee outreach events directed toward small businesses,
including many events in partnership with employer associations, such
as the Society for Human Resource Management, and the Industry Liaison
Groups and other federal agencies, such as the National Labor Relations
Board and the Office of Federal Contract Compliance Programs. Events
included oral presentations, training and stakeholder input meetings
involving 28,525 small business representatives. We expect to include
information about GINA in our outreach programs in general and to offer
numerous GINA-specific outreach programs once the regulation
implementing Title II of GINA becomes final. We will also post
technical assistance documents on our Web site explaining the basics of
the new regulation, as we do with all of our new regulations and policy
documents. We estimate that typical human resources professionals will
need to dedicate, at most, three hours to gain a satisfactory
understanding of the new requirements, either by attending an EEOC-
sponsored event or reviewing the relevant materials on their own. We
further estimate that the median hourly pay rate of an HR professional
is approximately $46.40. See Bureau of Labor Statistics, Occupational
Employment and Wages, May 2009 at http://www.bls.gov/oes/current/oes113049.htm#5#5. Assuming that small entities have between one and
five HR professionals/managers, we estimate that the cost per entity of
getting appropriate training will be between approximately $139.00 and
$696.00, at the high end. EEOC does not believe that this cost will be
significant for the impacted small entities.
[[Page 68932]]
Although several commenters requested that EEOC provide training
and technical assistance specifically geared towards small businesses,
we received no comments disputing our estimates of the number of small
entities impacted or the cost to those entities. See Comments of NFIB,
NSBA and SBA. As noted above, EEOC will offer training on Title II of
GINA in various formats, as well as issuing the necessary technical
assistance guidance.
Unfunded Mandates Reform Act of 1995
This final rule will not result in the expenditure by state, local,
or tribal governments, in the aggregate, or by the private sector, of
$100 million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Dated: October 29, 2010.
For the Commission.
Jacqueline A. Berrien,
Chair.
List of Subjects in 29 CFR Part 1635
Administrative practice and procedure, Equal employment
opportunity.
0
For the reasons set forth in the preamble, the EEOC amends 29 CFR
chapter XIV by adding part 1635 to read as follows:
PART 1635--GENETIC INFORMATION NONDISCRIMINATION ACT OF 2008
Sec.
1635.1 Purpose.
1635.2 Definitions--general.
1635.3 Definitions specific to GINA.
1635.4 Prohibited practices--in general.
1635.5 Limiting, segregating, and classifying.
1635.6 Causing a covered entity to discriminate.
1635.7 Retaliation.
1635.8 Acquisition of genetic information.
1635.9 Confidentiality.
1635.10 Enforcement and remedies.
1635.11 Construction.
1635.12 Medical information that is not genetic information.
Authority: 110 Stat. 233; 42 U.S.C. 2000ff.
Sec. 1635.1 Purpose.
(a) The purpose of this part is to implement Title II of the
Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. 2000ff, et
seq. Title II of GINA:
(1) Prohibits use of genetic information in employment decision-
making;
(2) Restricts employers and other entities subject to Title II of
GINA from requesting, requiring, or purchasing genetic information;
(3) Requires that genetic information be maintained as a
confidential medical record, and places strict limits on disclosure of
genetic information; and
(4) Provides remedies for individuals whose genetic information is
acquired, used, or disclosed in violation of its protections.
(b) This part does not apply to actions of covered entities that do
not pertain to an individual's status as an employee, member of a labor
organization, or participant in an apprenticeship program. For example,
this part would not apply to:
(1) A medical examination of an individual for the purpose of
diagnosis and treatment unrelated to employment, which is conducted by
a health care professional at the hospital or other health care
facility where the individual is an employee; or
(2) Activities of a covered entity carried on in its capacity as a
law enforcement agency investigating criminal conduct, even where the
subject of the investigation is an employee of the covered entity.
Sec. 1635.2 Definitions--general.
(a) Commission means the Equal Employment Opportunity Commission,
as established by section 705 of the Civil Rights Act of 1964, 42
U.S.C. 2000e-4.
(b) Covered Entity means an employer, employing office, employment
agency, labor organization, or joint labor-management committee.
(c) Employee means an individual employed by a covered entity, as
well as an applicant for employment and a former employee. An employee,
including an applicant for employment and a former employee, is:
(1) As defined by section 701 of the Civil Rights Act of 1964, 42
U.S.C. 2000e, an individual employed by a person engaged in an industry
affecting commerce who has fifteen or more employees for each working
day in each of twenty or more calendar weeks in the current or
preceding calendar year and any agent of such a person;
(2) As defined by section 304(a) of the Government Employee Rights
Act, 42 U.S.C. 2000e-16c(a), a person chosen or appointed by an
individual elected to public office by a State or political subdivision
of a State to serve as part of the personal staff of the elected
official, to serve the elected official on a policy-making level, or to
serve the elected official as the immediate advisor on the exercise of
the elected official's constitutional or legal powers.
(3) As defined by section 101 of the Congressional Accountability
Act, 2 U.S.C. 1301, any employee of the House of Representatives, the
Senate, the Capitol Guide Service, the Capitol Police, the
Congressional Budget Office, the Office of the Architect of the
Capitol, the Office of the Attending Physician, the Office of
Compliance, or the Office of Technology Assessment;
(4) As defined by, and subject to the limitations in, section 2(a)
of the Presidential and Executive Office Accountability Act, 3 U.S.C.
411(c), any employee of the executive branch not otherwise covered by
section 717 of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16,
section 15 of the Age Discrimination in Employment Act of 1967, 29
U.S.C. 633a, or section 501 of the Rehabilitation Act of 1973, 29
U.S.C. 791, whether appointed by the President or any other appointing
authority in the executive branch, including an employee of the
Executive Office of the President;
(5) As defined by, and subject to the limitations in, section 717
of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16, and regulations of
the Equal Employment Opportunity Commission at 29 CFR 1614.103, an
employee of a federal executive agency, the United States Postal
Service and the Postal Rate Commission, the Tennessee Valley Authority,
the National Oceanic and Atmospheric Administration Commissioned Corps,
the Government Printing Office, and the Smithsonian Institution; an
employee of the federal judicial branch having a position in the
competitive service; and an employee of the Library of Congress.
(d) Employer means any person that employs an employee defined in
Sec. 1635.2(c) of this part, and any agent of such person, except
that, as limited by section 701(b)(1) and (2) of the Civil Rights Act
of 1964, 42 U.S.C. 2000e(b)(1) and (2), an employer does not include an
Indian tribe, or a bona fide private club (other than a labor
organization) that is exempt from taxation under section 501(c) of the
Internal Revenue Code of 1986.
(e) Employing office is defined in the Congressional Accountability
Act, 2 U.S.C. 1301(9), to mean the personal office of a Member of the
House of Representatives or of a Senator; a committee of the House of
Representatives or the Senate or a joint committee; any other office
headed by a person with the final authority to appoint, hire,
discharge, and set the terms, conditions, or privileges of the
employment of an employee of the House of Representatives or the
Senate; or the Capitol Guide Board, the Capitol Police Board, the
Congressional Budget Office, the Office of the Architect of the
[[Page 68933]]
Capitol, the Office of the Attending Physician, the Office of
Compliance, and the Office of Technology Assessment.
(f) Employment agency is defined in 42 U.S.C. 2000e(c) to mean any
person regularly undertaking with or without compensation to procure
employees for an employer or to procure for employees opportunities to
work for an employer and includes an agent of such a person.
(g) Joint labor-management committee is defined as an entity that
controls apprenticeship or other training or retraining programs,
including on-the-job training programs.
(h) Labor organization is defined at 42 U.S.C. 2000e(d) to mean an
organization with fifteen or more members engaged in an industry
affecting commerce, and any agent of such an organization in which
employees participate and which exists for the purpose, in whole or in
part, of dealing with employers concerning grievances, labor disputes,
wages, rates of pay, hours, or other terms or conditions of employment.
(i) Member includes, with respect to a labor organization, an
applicant for membership.
(j) Person is defined at 42 U.S.C. 2000e(a) to mean one or more
individuals, governments, governmental agencies, political
subdivisions, labor unions, partnerships, associations, corporations,
legal representatives, mutual companies, joint-stock companies, trusts,
unincorporated organizations, trustees, trustees in cases under title
11, or receivers.
(k) State is defined at 42 U.S.C. 2000e(i) and includes a State of
the United States, the District of Columbia, Puerto Rico, the Virgin
Islands, American Samoa, Guam, Wake Island, the Canal Zone, and Outer
Continental Shelf lands defined in the Outer Continental Shelf Lands
Act (43 U.S.C. 1331 et seq.).
Sec. 1635.3 Definitions specific to GINA.
(a) Family member means with respect to any individual:
(1) A person who is a dependent of that individual as the result of
marriage, birth, adoption, or placement for adoption; or
(2) A first-degree, second-degree, third-degree, or fourth-degree
relative of the individual, or of a dependent of the individual as
defined in Sec. 1635.3(a)(1).
(i) First-degree relatives include an individual's parents,
siblings, and children.
(ii) Second-degree relatives include an individual's grandparents,
grandchildren, uncles, aunts, nephews, nieces, and half-siblings.
(iii) Third-degree relatives include an individual's great-
grandparents, great grandchildren, great uncles/aunts, and first
cousins.
(iv) Fourth-degree relatives include an individual's great-great-
grandparents, great-great-grandchildren, and first cousins once-removed
(i.e., the children of the individual's first cousins).
(b) Family medical history. Family medical history means
information about the manifestation of disease or disorder in family
members of the individual.
(c) Genetic information. (1) Genetic information means information
about:
(i) An individual's genetic tests;
(ii) The genetic tests of that individual's family members;
(iii) The manifestation of disease or disorder in family members of
the individual (family medical history);
(iv) An individual's request for, or receipt of, genetic services,
or the participation in clinical research that includes genetic
services by the individual or a family member of the individual; or
(v) The genetic information of a fetus carried by an individual or
by a pregnant woman who is a family member of the individual and the
genetic information of any embryo legally held by the individual or
family member using an assisted reproductive technology.
(2) Genetic information does not include information about the sex
or age of the individual, the sex or age of family members, or
information about the race or ethnicity of the individual or family
members that is not derived from a genetic test.
(d) Genetic monitoring means the periodic examination of employees
to evaluate acquired modifications to their genetic material, such as
chromosomal damage or evidence of increased occurrence of mutations,
caused by the toxic substances they use or are exposed to in performing
their jobs, in order to identify, evaluate, and respond to the effects
of, or to control adverse environmental exposures in the workplace.
(e) Genetic services. Genetic services means a genetic test,
genetic counseling (including obtaining, interpreting, or assessing
genetic information), or genetic education.
(f) Genetic test--(1) In general. ``Genetic test'' means an
analysis of human DNA, RNA, chromosomes, proteins, or metabolites that
detects genotypes, mutations, or chromosomal changes.
(2) Genetic tests include, but are not limited to:
(i) A test to determine whether someone has the BRCA1 or BRCA2
variant evidencing a predisposition to breast cancer, a test to
determine whether someone has a genetic variant associated with
hereditary nonpolyposis colon cancer, and a test for a genetic variant
for Huntington's Disease;
(ii) Carrier screening for adults using genetic analysis to
determine the risk of conditions such as cystic fibrosis, sickle cell
anemia, spinal muscular atrophy, or fragile X syndrome in future
offspring;
(iii) Amniocentesis and other evaluations used to determine the
presence of genetic abnormalities in a fetus during pregnancy;
(iv) Newborn screening analysis that uses DNA, RNA, protein, or
metabolite analysis to detect or indicate genotypes, mutations, or
chromosomal changes, such as a test for PKU performed so that treatment
can begin before a disease manifests;
(v) Preimplantation genetic diagnosis performed on embryos created
using invitro fertilization;
(vi) Pharmacogenetic tests that detect genotypes, mutations, or
chromosomal changes that indicate how an individual will react to a
drug or a particular dosage of a drug;
(vii) DNA testing to detect genetic markers that are associated
with information about ancestry; and
(viii) DNA testing that reveals family relationships, such as
paternity.
(3) The following are examples of tests or procedures that are not
genetic tests:
(i) An analysis of proteins or metabolites that does not detect
genotypes, mutations, or chromosomal changes;
(ii) A medical examination that tests for the presence of a virus
that is not composed of human DNA, RNA, chromosomes, proteins, or
metabolites;
(iii) A test for infectious and communicable diseases that may be
transmitted through food handling;
(iv) Complete blood counts, cholesterol tests, and liver-function
tests.
(4) Alcohol and Drug Testing--
(i) A test for the presence of alcohol or illegal drugs is not a
genetic test.
(ii) A test to determine whether an individual has a genetic
predisposition for alcoholism or drug use is a genetic test.
(g) Manifestation or manifested means, with respect to a disease,
disorder, or pathological condition, that an individual has been or
could reasonably be diagnosed with the disease, disorder, or
pathological condition by a health care professional with appropriate
training and expertise
[[Page 68934]]
in the field of medicine involved. For purposes of this part, a
disease, disorder, or pathological condition is not manifested if the
diagnosis is based principally on genetic information.
Sec. 1635.4 Prohibited practices--in general.
(a) It is unlawful for an employer to discriminate against an
individual on the basis of the genetic information of the individual in
regard to hiring, discharge, compensation, terms, conditions, or
privileges of employment.
(b) It is unlawful for an employment agency to fail or refuse to
refer any individual for employment or otherwise discriminate against
any individual because of genetic information of the individual.
(c) It is unlawful for a labor organization to exclude or to expel
from the membership of the organization, or otherwise to discriminate
against, any member because of genetic information with respect to the
member.
(d) It is an unlawful employment practice for any employer, labor
organization, or joint labor-management committee controlling
apprenticeship or other training or retraining programs, including on-
the-job training programs to discriminate against any individual
because of the individual's genetic information in admission to, or
employment in, any program established to provide apprenticeship or
other training or retraining.
Sec. 1635.5 Limiting, segregating, and classifying.
(a) A covered entity may not limit, segregate, or classify an
individual, or fail or refuse to refer for employment any individual,
in any way that would deprive or tend to deprive the individual of
employment opportunities or otherwise affect the status of the
individual as an employee, because of genetic information with respect
to the individual. A covered entity will not be deemed to have violated
this section if it limits or restricts an employee's job duties based
on genetic information because it was required to do so by a law or
regulation mandating genetic monitoring, such as regulations
administered by the Occupational and Safety Health Administration
(OSHA). See 1635.8(b)(5) and 1635.11(a).
(b) Notwithstanding any language in this part, a cause of action
for disparate impact within the meaning of section 703(k) of the Civil
Rights Act of 1964, 42 U.S.C. 2000e-2(k), is not available under this
part.
Sec. 1635.6 Causing a covered entity to discriminate.
A covered entity may not cause or attempt to cause another covered
entity, or its agent, to discriminate against an individual in
violation of this part, including with respect to the individual's
participation in an apprenticeship or other training or retraining
program, or with respect to a member's participation in a labor
organization.
Sec. 1635.7 Retaliation.
A covered entity may not discriminate against any individual
because such individual has opposed any act or practice made unlawful
by this title or because such individual made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this title.
Sec. 1635.8 Acquisition of genetic information.
(a) General prohibition. A covered entity may not request, require,
or purchase genetic information of an individual or family member of
the individual, except as specifically provided in paragraph (b) of
this section. ``Request'' includes conducting an Internet search on an
individual in a way that is likely to result in a covered entity
obtaining genetic information; actively listening to third-party
conversations or searching an individual's personal effects for the
purpose of obtaining genetic information; and making requests for
information about an individual's current health status in a way that
is likely to result in a covered entity obtaining genetic information.
(b) Exceptions. The general prohibition against requesting,
requiring, or purchasing genetic information does not apply:
(1) Where a covered entity inadvertently requests or requires
genetic information of the individual or family member of the
individual.
(i) Requests for Medical Information:
(A) If a covered entity acquires genetic information in response to
a lawful request for medical information, the acquisition of genetic
information will not generally be considered inadvertent unless the
covered entity directs the individual and/or health care provider from
whom it requested medical information (in writing, or verbally, where
the covered entity does not typically make requests for medical
information in writing) not to provide genetic information.
(B) If a covered entity uses language such as the following, any
receipt of genetic information in response to the request for medical
information will be deemed inadvertent: ``The Genetic Information
Nondiscrimination Act of 2008 (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. `Genetic information' as defined
by GINA, 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 of a fetus carried by an individual
or an individual's family member or an embryo lawfully held by an
individual or family member receiving assistive reproductive
services.''
(C) A covered entity's failure to give such a notice or to use this
or similar language will not prevent it from establishing that a
particular receipt of genetic information was inadvertent if its
request for medical information was not ``likely to result in a covered
entity obtaining genetic information'' (for example, where an overly
broad response is received in response to a tailored request for
medical information).
(D) Situations to which the requirements of subsection (b)(1)(i)
apply include, but are not limited to the following:
(1) Where a covered entity requests documentation to support a
request for reasonable accommodation under Federal, State, or local
law, as long as the covered entity's request for such documentation is
lawful. A request for documentation supporting a request for reasonable
accommodation is lawful only when the disability and/or the need for
accommodation is not obvious; the documentation is no more than is
sufficient to establish that an individual has a disability and needs a
reasonable accommodation; and the documentation relates only to the
impairment that the individual claims to be a disability that requires
reasonable accommodation;
(2) Where an employer requests medical information from an
individual as required, authorized, or permitted by Federal, State, or
local law, such as where an employee requests leave under the Family
and Medical Leave Act (FMLA) to attend to the employee's own serious
health condition or where an employee complies with the FMLA's employee
return to work certification requirements; or
(3) Where a covered entity requests documentation to support a
request for leave that is not governed by Federal,
[[Page 68935]]
State, or local laws requiring leave, as long as the documentation
required to support the request otherwise complies with the
requirements of the Americans with Disabilities Act and other laws
limiting a covered entity's access to medical information.
(ii) The exception for inadvertent acquisition of genetic
information also applies in, but is not necessarily limited to,
situations where--
(A) A manager, supervisor, union representative, or employment
agency representative learns genetic information about an individual by
overhearing a conversation between the individual and others;
(B) A manager, supervisor, union representative, or employment
agency representative learns genetic information about an individual by
receiving it from the individual or third-parties during a casual
conversation, including in response to an ordinary expression of
concern that is the subject of the conversation. For example, the
exception applies when the covered entity, acting through a supervisor
or other official, receives family medical history directly from an
individual following a general health inquiry (e.g., ``How are you?''
or ``Did they catch it early?'' asked of an employee who was just
diagnosed with cancer) or a question as to whether the individual has a
manifested condition. Similarly, a casual question between colleagues,
or between a supervisor and subordinate, concerning the general well-
being of a parent or child would not violate GINA (e.g., ``How's your
son feeling today?'', ``Did they catch it early?'' asked of an employee
whose family member was just diagnosed with cancer, or ``Will your
daughter be OK?''). However, this exception does not apply where an
employer follows up a question concerning a family member's general
health with questions that are probing in nature, such as whether other
family members have the condition, or whether the individual has been
tested for the condition, because the covered entity should know that
these questions are likely to result in the acquisition of genetic
information;
(C) A manager, supervisor, union representative, or employment
agency representative learns genetic information from the individual or
a third-party without having solicited or sought the information (e.g.,
where a manager or supervisor receives an unsolicited email about the
health of an employee's family member from a co-worker); or
(D) A manager, supervisor, union representative, or employment
agency representative inadvertently learns genetic information from a
social media platform which he or she was given permission to access by
the creator of the profile at issue (e.g., a supervisor and employee
are connected on a social networking site and the employee provides
family medical history on his page).
(2) Where a covered entity offers health or genetic services,
including such services offered as part of a voluntary wellness
program.
(i) This exception applies only where--
(A) The provision of genetic information by the individual is
voluntary, meaning the covered entity neither requires the individual
to provide genetic information nor penalizes those who choose not to
provide it;
(B) The individual provides prior knowing, voluntary, and written
authorization, which may include authorization in electronic format.
This requirement is only met if the covered entity uses an
authorization form that:
(1) Is written so that the individual from whom the genetic
information is being obtained is reasonably likely to understand it;
(2) Describes the type of genetic information that will be obtained
and the general purposes for which it will be used; and
(3) Describes the restrictions on disclosure of genetic
information;
(C) Individually identifiable genetic information is provided only
to the individual (or family member if the family member is receiving
genetic services) and the licensed health care professionals or board
certified genetic counselors involved in providing such services, and
is not accessible to managers, supervisors, or others who make
employment decisions, or to anyone else in the workplace; and
(D) Any individually identifiable genetic information provided
under paragraph (b)(2) of this section is only available for purposes
of such services and is not disclosed to the covered entity except in
aggregate terms that do not disclose the identity of specific
individuals (a covered entity will not violate the requirement that it
receive information only in aggregate terms if it receives information
that, for reasons outside the control of the provider or the covered
entity (such as the small number of participants), makes the genetic
information of a particular individual readily identifiable with no
effort on the covered entity's part).
(ii) Consistent with the requirements of paragraph (b)(2)(i) of
this section, a covered entity may not offer a financial inducement for
individuals to provide genetic information, but may offer financial
inducements for completion of health risk assessments that include
questions about family medical history or other genetic information,
provided the covered entity makes clear, in language reasonably likely
to be understood by those completing the health risk assessment, that
the inducement will be made available whether or not the participant
answers questions regarding genetic information. For example:
(A) A covered entity offers $150 to employees who complete a health
risk assessment with 100 questions, the last 20 of them concerning
family medical history and other genetic information. The instructions
for completing the health risk assessment make clear that the
inducement will be provided to all employees who respond to the first
80 questions, whether or not the remaining 20 questions concerning
family medical history and other genetic information are answered. This
health risk assessment does not violate Title II of GINA.
(B) Same facts as the previous example, except that the
instructions do not indicate which questions request genetic
information; nor does the assessment otherwise make clear which
questions must be answered in order to obtain the inducement. This
health risk assessment violates Title II of GINA.
(iii) A covered entity may offer financial inducements to encourage
individuals who have voluntarily provided genetic information (e.g.,
family medical history) that indicates that they are at increased risk
of acquiring a health condition in the future to participate in disease
management programs or other programs that promote healthy lifestyles,
and/or to meet particular health goals as part of a health or genetic
service. However, to comply with Title II of GINA, these programs must
also be offered to individuals with current health conditions and/or to
individuals whose lifestyle choices put them at increased risk of
developing a condition. For example:
(A) Employees who voluntarily disclose a family medical history of
diabetes, heart disease, or high blood pressure on a health risk
assessment that meets the requirements of (b)(2)(ii) of this section
and employees who have a current diagnosis of one or more of these
conditions are offered $150 to participate in a wellness program
designed to encourage weight loss and a healthy lifestyle. This does
not violate Title II of GINA.
(B) The program in the previous example offers an additional
[[Page 68936]]
inducement to individuals who achieve certain health outcomes.
Participants may earn points toward ``prizes'' totaling $150 in a
single year for lowering their blood pressure, glucose, and cholesterol
levels, or for losing weight. This inducement would not violate Title
II of GINA.
(iv) Nothing contained in Sec. 1635.8(b)(2)(iii) limits the rights
or protections of an individual under the Americans with Disabilities
Act (ADA), as amended, or other applicable civil rights laws, or under
the Health Insurance Portability and Accountability Act (HIPAA), as
amended by GINA. For example, if an employer offers a financial
inducement for participation in disease management programs or other
programs that promote healthy lifestyles and/or require individuals to
meet particular health goals, the employer must make reasonable
accommodations to the extent required by the ADA, that is, the employer
must make ``modifications or adjustments that enable a covered entity's
employee with a disability to enjoy equal benefits and privileges of
employment as are enjoyed by its other similarly situated employees
without disabilities'' unless ``such covered entity can demonstrate
that the accommodation would impose an undue hardship on the operation
of its business.'' 29 CFR 1630.2(o)(1)(iii); 29 CFR 1630.9(a). In
addition, if the employer's wellness program provides (directly,
through reimbursement, or otherwise) medical care (including genetic
counseling), the program may constitute a group health plan and must
comply with the special requirements for wellness programs that
condition rewards on an individual satisfying a standard related to a
health factor, including the requirement to provide an individual with
a ``reasonable alternative (or waiver of the otherwise applicable
standard)'' under HIPAA, when ``it is unreasonably difficult due to a
medical condition to satisfy'' or ``medically inadvisable to attempt to
satisfy'' the otherwise applicable standard. See section 9802 of the
Internal Revenue Code (26 U.S.C. 9802, 26 CFR 54.9802-1 and 54.9802-
3T), section 702 of the Employee Retirement Income Security Act of 1974
(ERISA) (29 U.S.C. 1182, 29 CFR 2590.702 and 2590.702-1), and section
2705 of the Public Health Service Act (45 CFR 146.121 and 146.122).
(3) Where the covered entity requests family medical history to
comply with the certification provisions of the Family and Medical
Leave Act of 1993 (29 U.S.C. 2601 et seq.) or State or local family and
medical leave laws, or pursuant to a policy (even in the absence of
requirements of Federal, State, or local leave laws) that permits the
use of leave to care for a sick family member and that requires all
employees to provide information about the health condition of the
family member to substantiate the need for leave.
(4) Where the covered entity acquires genetic information from
documents that are commercially and publicly available for review or
purchase, including newspapers, magazines, periodicals, or books, or
through electronic media, such as information communicated through
television, movies, or the Internet, except that this exception does
not apply--
(i) To medical databases, court records, or research databases
available to scientists on a restricted basis;
(ii) To genetic information acquired through sources with limited
access, such as social networking sites and other media sources which
require permission to access from a specific individual or where access
is conditioned on membership in a particular group, unless the covered
entity can show that access is routinely granted to all who request it;
(iii) To genetic information obtained through commercially and
publicly available sources if the covered entity sought access to those
sources with the intent of obtaining genetic information; or
(iv) To genetic information obtained through media sources, whether
or not commercially and publicly available, if the covered entity is
likely to acquire genetic information by accessing those sources, such
as Web sites and on-line discussion groups that focus on issues such as
genetic testing of individuals and genetic discrimination.
(5) Where the covered entity acquires genetic information for use
in the genetic monitoring of the biological effects of toxic substances
in the workplace. In order for this exception to apply, the covered
entity must provide written notice of the monitoring to the individual
and the individual must be informed of the individual monitoring
results. The covered entity may not retaliate or otherwise discriminate
against an individual due to his or her refusal to participate in
genetic monitoring that is not required by federal or state law. This
exception further provides that such monitoring:
(i) Is either required by federal or state law or regulation, or is
conducted only where the individual gives prior knowing, voluntary and
written authorization. The requirement for individual authorization is
only met if the covered entity uses an authorization form that:
(A) Is written so that the individual from whom the genetic
information is being obtained is reasonably likely to understand the
form;
(B) Describes the genetic information that will be obtained; and
(C) Describes the restrictions on disclosure of genetic
information;
(ii) Is conducted in compliance with any Federal genetic monitoring
regulations, including any regulations that may be promulgated by the
Secretary of Labor pursuant to the Occupational Safety and Health Act
of 1970 (29 U.S.C. 651 et seq.), the Federal Mine Safety and Health Act
of 1977 (30 U.S.C. 801 et seq.), or the Atomic Energy Act of 1954 (42
U.S.C. 2011 et seq.); or State genetic monitoring regulations, in the
case of a State that is implementing genetic monitoring regulations
under the authority of the Occupational Safety and Health Act of 1970
(29 U.S.C. 651 et seq.); and
(iii) Provides for reporting of the results of the monitoring to
the covered entity, excluding any licensed health care professional or
board certified genetic counselor involved in the genetic monitoring
program, only in aggregate terms that do not disclose the identity of
specific individuals.
(6) Where an employer conducts DNA analysis for law enforcement
purposes as a forensic laboratory or for purposes of human remains
identification and requests or requires genetic information of its
employees, apprentices, or trainees, but only to the extent that the
genetic information is used for analysis of DNA identification markers
for quality control to detect sample contamination and is maintained
and disclosed in a manner consistent with such use.
(c) Inquiries Made of Family Members Concerning a Manifested
Disease, Disorder, or Pathological Condition. (1) A covered entity does
not violate this section when it requests, requires, or purchases
information about a manifested disease, disorder, or pathological
condition of an employee, member, or apprenticeship program participant
whose family member is an employee for the same employer, a member of
the same labor organization, or a participant in the same
apprenticeship program. For example, an employer will not violate this
section by asking someone whose sister also works for the employer to
take a post-offer medical examination that does not include requests
for genetic information.
(2) A covered entity does not violate this section when it
requests, requires, or purchases genetic information or
[[Page 68937]]
information about the manifestation of a disease, disorder, or
pathological condition of an individual's family member who is
receiving health or genetic services on a voluntary basis. For example,
an employer does not unlawfully acquire genetic information about an
employee when it asks the employee's family member who is receiving
health services from the employer if her diabetes is under control.
(d) Medical examinations related to employment. The prohibition on
acquisition of genetic information, including family medical history,
applies to medical examinations related to employment. A covered entity
must tell health care providers not to collect genetic information,
including family medical history, as part of a medical examination
intended to determine the ability to perform a job, and must take
additional reasonable measures within its control if it learns that
genetic information is being requested or required. Such reasonable
measures may depend on the facts and circumstances under which a
request for genetic information was made, and may include no longer
using the services of a health care professional who continues to
request or require genetic information during medical examinations
after being informed not to do so.
(e) A covered entity may not use genetic information obtained
pursuant to subparagraphs (b) or (c) of this section to discriminate,
as defined by Sec. Sec. 1635.4, 1635.5, or 1635.6, and must keep such
information confidential as required by Sec. 1635.9.
Sec. 1635.9 Confidentiality.
(a) Treatment of genetic information. (1) A covered entity that
possesses genetic information in writing about an employee or member
must maintain such information on forms and in medical files (including
where the information exists in electronic forms and files) that are
separate from personnel files and treat such information as a
confidential medical record.
(2) A covered entity may maintain genetic information about an
employee or member in the same file in which it maintains confidential
medical information subject to section 102(d)(3)(B) of the Americans
with Disabilities Act, 42 U.S.C. 12112(d)(3)(B).
(3) Genetic information that a covered entity receives orally need
not be reduced to writing, but may not be disclosed, except as
permitted by this part.
(4) Genetic information that a covered entity acquires through
sources that are commercially and publicly available, as provided by,
and subject to the limitations in, 1635.8(b)(4) of this part, is not
considered confidential genetic information, but may not be used to
discriminate against an individual as described in Sec. Sec. 1635.4,
1635.5, or 1635.6 of this part.
(5) Genetic information placed in personnel files prior to November
21, 2009 need not be removed and a covered entity will not be liable
under this part for the mere existence of the information in the file.
However, the prohibitions on use and disclosure of genetic information
apply to all genetic information that meets the statutory definition,
including genetic information requested, required, or purchased prior
to November 21, 2009.
(b) Exceptions to limitations on disclosure. A covered entity that
possesses any genetic information, regardless of how the entity
obtained the information (except for genetic information acquired
through commercially and publicly available sources), may not disclose
it except:
(1) To the employee or member (or family member if the family
member is receiving the genetic services) about whom the information
pertains upon receipt of the employee's or member's written request;
(2) To an occupational or other health researcher if the research
is conducted in compliance with the regulations and protections
provided for under 45 CFR part 46;
(3) In response to an order of a court, except that the covered
entity may disclose only the genetic information expressly authorized
by such order; and if the court order was secured without the knowledge
of the employee or member to whom the information refers, the covered
entity shall inform the employee or member of the court order and any
genetic information that was disclosed pursuant to such order;
(4) To government officials investigating compliance with this
title if the information is relevant to the investigation;
(5) To the extent that such disclosure is made in support of an
employee's compliance with the certification provisions of section 103
of the Family and Medical Leave Act of 1993 (29 U.S.C. 2613) or such
requirements under State family and medical leave laws; or
(6) To a Federal, State, or local public health agency only with
regard to information about the manifestation of a disease or disorder
that concerns a contagious disease that presents an imminent hazard of
death or life-threatening illness, provided that the individual whose
family member is the subject of the disclosure is notified of such
disclosure.
(c) Relationship to HIPAA Privacy Regulations. Pursuant to Sec.
1635.11(d) of this part, nothing in this section shall be construed as
applying to the use or disclosure of genetic information that is
protected health information subject to the regulations issued pursuant
to section 264(c) of the Health Insurance Portability and
Accountability Act of 1996.
Sec. 1635.10 Enforcement and remedies.
(a) Powers and procedures: The following powers and procedures
shall apply to allegations that Title II of GINA has been violated:
(1) The powers and procedures provided to the Commission, the
Attorney General, or any person by sections 705 through 707 and 709
through 711 of the Civil Rights Act of 1964, 42 U.S.C. 2000e-4 through
2000e-6 and 2000e-8 through 2000e-10, where the alleged discrimination
is against an employee defined in 1635.2(c)(1) of this part or against
a member of a labor organization;
(2) The powers and procedures provided to the Commission and any
person by sections 302 and 304 of the Government Employees Rights Act,
42 U.S.C. 2000e-16b and 2000e-16c, and in regulations at 29 CFR part
1603, where the alleged discrimination is against an employee as
defined in Sec. 1635.2(c)(2) of this part;
(3) The powers and procedures provided to the Board of Directors of
the Office of Compliance and to any person under the Congressional
Accountability Act, 2 U.S.C. 1301 et seq. (including the provisions of
Title 3 of that act, 2 U.S.C. 1381 et seq.), where the alleged
discrimination is against an employee defined in Sec. 1635.2(c)(3) of
this part;
(4) The powers and procedures provided in 3 U.S.C. 451 et seq., to
the President, the Commission, or any person in connection with an
alleged violation of section 3 U.S.C. 411(a)(1), where the alleged
discrimination is against an employee defined in Sec. 1635.2(c)(4) of
this part;
(5) The powers and procedures provided to the Commission, the
Librarian of Congress, and any person by section 717 of the Civil
Rights Act, 42 U.S.C. 2000e-16, where the alleged discrimination is
against an employee defined in Sec. 1635.2(c)(5) of this part.
(b) Remedies. The following remedies are available for violations
of GINA sections 202, 203, 204, 205, 206, and 207(f):
[[Page 68938]]
(1) Compensatory and punitive damages as provided for, and limited
by, 42 U.S.C. 1981a(a)(1) and (b);
(2) Reasonable attorney's fees, including expert fees, as provided
for, and limited by, 42 U.S.C. 1988(b) and (c); and
(3) Injunctive relief, including reinstatement and hiring, back
pay, and other equitable remedies as provided for, and limited by, 42
U.S.C. 2000e-5(g).
(c) Posting of Notices. (1) Every covered entity shall post and
keep posted in conspicuous places upon its premises where notices to
employees, applicants for employment, and members are customarily
posted a notice to be prepared or approved by the Commission setting
forth excerpts from or, summaries of, the pertinent provisions of this
regulation and information pertinent to the filing of a complaint.
(2) A willful violation of this requirement shall be punishable by
a fine of not more than $100 for each separate offense.
Sec. 1635.11 Construction.
(a) Relationship to other laws, generally. This part does not--
(1) Limit the rights or protections of an individual under any
other Federal, State, or local law that provides equal or greater
protection to an individual than the rights or protections provided for
under this part, including the Americans with Disabilities Act of 1990
(42 U.S.C. 12101 et seq.), the Rehabilitation Act of 1973 (29 U.S.C.
701 et seq.), and State and local laws prohibiting genetic
discrimination or discrimination on the basis of disability;
(2) Apply to the Armed Forces Repository of Specimen Samples for
the Identification of Remains;
(3) Limit or expand the protections, rights, or obligations of
employees or employers under applicable workers' compensation laws;
(4) Limit the authority of a Federal department or agency to
conduct or sponsor occupational or other health research in compliance
with the regulations and protections provided for under 45 CFR part 46;
(5) Limit the statutory or regulatory authority of the Occupational
Safety and Health Administration or the Mine Safety and Health
Administration to promulgate or enforce workplace safety and health
laws and regulations; or
(6) Require any specific benefit for an employee or member or a
family member of an employee or member (such as additional coverage for
a particular health condition that may have a genetic basis) under any
group health plan or health insurance issuer offering group health
insurance coverage in connection with a group health plan.
(b) Relation to certain Federal laws governing health coverage. (1)
General: Nothing in GINA Title II provides for enforcement of, or
penalties for, violation of any requirement or prohibition of a covered
entity subject to enforcement under:
(i) Amendments made by Title I of GINA.
(ii) Section 701(a) of the Employee Retirement Income Security Act
(29 U.S.C. 1181) (ERISA), section 2704(a) of the Public Health Service
Act, and section 9801(a) of the Internal Revenue Code (26 U.S.C.
9801(a)), as such sections apply with respect to genetic information
pursuant to section 701(b)(1)(B) of ERISA, section 2704(b)(1)(B) of the
Public Health Service Act, and section 9801(b)(1)(B) of the Internal
Revenue Code, respectively, of such sections, which prohibit a group
health plan or a health insurance issuer in the group market from
imposing a preexisting condition exclusion based solely on genetic
information, in the absence of a diagnosis of a condition;
(iii) Section 702(a)(1)(F) of ERISA (29 U.S.C. 1182(a)(1)(F)),
section 2705(a)(6) of the Public Health Service Act, and section
9802(a)(1)(F) of the Internal Revenue Code (26 U.S.C. 9802(a)(1)(F)),
which prohibit a group health plan or a health insurance issuer in the
group market from discriminating against individuals in eligibility and
continued eligibility for benefits based on genetic information; or
(iv) Section 702(b)(1) of ERISA (29 U.S.C. 1182(b)(1)), section
2705(b)(1) of the Public Health Service Act, and section 9802(b)(1) of
the Internal Revenue Code (26 U.S.C. 9802(b)(1)), as such sections
apply with respect to genetic information as a health status-related
factor, which prohibit a group health plan or a health insurance issuer
in the group market from discriminating against individuals in premium
or contribution rates under the plan or coverage based on genetic
information.
(2) Application. The application of paragraph (b)(1) of this
section is intended to prevent Title II causes of action from being
asserted regarding matters subject to enforcement under Title I or the
other genetics provisions for group coverage in ERISA, the Public
Health Service Act, and the Internal Revenue Code. The firewall seeks
to ensure that health plan or issuer provisions or actions are
addressed and remedied through ERISA, the Public Health Service Act, or
the Internal Revenue Code, while actions taken by employers and other
GINA Title II covered entities are remedied through GINA Title II.
Employers and other GINA Title II covered entities would remain liable
for any of their actions that violate Title II, even where those
actions involve access to health benefits, because such benefits are
within the definition of compensation, terms, conditions, or privileges
of employment. For example, an employer that fires an employee because
of anticipated high health claims based on genetic information remains
subject to liability under Title II. On the other hand, health plan or
issuer provisions or actions related to the imposition of a preexisting
condition exclusion; a health plan's or issuer's discrimination in
health plan eligibility, benefits, or premiums based on genetic
information; a health plan's or issuer's request that an individual
undergo a genetic test; and/or a health plan's or issuer's collection
of genetic information remain subject to enforcement under Title I
exclusively. For example:
(i) If an employer contracts with a health insurance issuer to
request genetic information, the employer has committed a Title II
violation. In addition, the issuer may have violated Title I of GINA.
(ii) If an employer directs his employees to undergo mandatory
genetic testing in order to be eligible for health benefits, the
employer has committed a Title II violation.
(iii) If an employer or union amends a health plan to require an
individual to undergo a genetic test, then the employer or union is
liable for a violation of Title II. In addition, the health plan's
implementation of the requirement may subject the health plan to
liability under Title I.
(c) Relationship to authorities under GINA Title I. GINA Title II
does not prohibit any group health plan or health insurance issuer
offering group health insurance coverage in connection with a group
health plan from engaging in any action that is authorized under any
provision of law noted in Sec. 1635.11(b) of this part, including any
implementing regulations noted in Sec. 1635.11(b).
(d) Relationship to HIPAA Privacy Regulations. This part does not
apply to genetic information that is protected health information
subject to the regulations issued by the Secretary of Health and Human
Services pursuant to section 264(c) of the Health Insurance Portability
and Accountability Act of 1996.
[[Page 68939]]
Sec. 1635.12 Medical information that is not genetic information.
(a) Medical information about a manifested disease, disorder, or
pathological condition. (1) A covered entity shall not be considered to
be in violation of this part based on the use, acquisition, or
disclosure of medical information that is not genetic information about
a manifested disease, disorder, or pathological condition of an
employee or member, even if the disease, disorder, or pathological
condition has or may have a genetic basis or component.
(2) Notwithstanding paragraph (a)(1) of this section, the
acquisition, use, and disclosure of medical information that is not
genetic information about a manifested disease, disorder, or
pathological condition is subject to applicable limitations under
sections 103(d)(1)-(4) of the Americans with Disabilities Act (42
U.S.C. 12112(d)(1)-(4)), and regulations at 29 CFR 1630.13, 1630.14,
and 1630.16.
(b) Genetic information related to a manifested disease, disorder,
or pathological condition. Notwithstanding paragraph (a) of this
section, genetic information about a manifested disease, disorder, or
pathological condition is subject to the requirements and prohibitions
in sections 202 through 206 of GINA and Sec. Sec. 1635.4 through
1635.9 of this part.
[FR Doc. 2010-28011 Filed 11-8-10; 8:45 am]
BILLING CODE 6570-01-P