Genetic Information Nondiscrimination Act Rules Issued

The Equal Employment Opportunity Commission published final regulations in the Nov. 9 Federal Register to implement Title II of the Genetic Information Nondiscrimination Act.

The regulations have been long awaited by employers. The EEOC had proposed regulations under Title II of GINA on March 2, 2009, followed by a period of public comment. The final regulations issued Nov. 9 say that after considering public comment, the EEOC has revised portions of both the final rule and the preamble.

Title II of GINA, which went into effect in November 2009, prohibits using genetic information in making employment decisions, restricts acquisition of genetic information by employers and strictly limits its disclosure.

At least one change in the final regulations is positive for employers, said Rich Stover, a principal with Buck Consultants in Secaucus, New Jersey. He said the initial proposal would have allowed employers to use genetic information in connection with voluntary wellness programs but did not define such programs. That prompted employer concern as to whether wellness programs that provided financial incentives could still be considered voluntary.

That has now been answered in the affirmative in the final regulations, Stover said.
“The positive news is you can have a financial incentive,” he said. It “would largely kill” wellness programs if employers could not offer workers incentives for their participation.

As of fiscal 2010, which ended Sept. 30, the agency had received a little more than 200 charges of discrimination alleging GINA violations, although none has resulted in any EEOC-initiated litigation, a spokeswoman for the commission said. 

Filed by Judy Greenwald of Business Insurance, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.

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