22 November 2010
ByAppeared in BioNews 585
The Equal Employment Opportunity Commission (EEOC), responsible for enforcing federal anti-discrimination laws in the US, has issued its 'final rule' guidelines clarifying how federal laws should operate to prevent job discrimination on the basis of genetic information.
The EEOC's rules carve out narrow exceptions where employers may lawfully acquire genetic information including situations where information is taken from commercially and publicly available sources, such as newspapers.
Employers are prohibited from intentionally seeking genetic health information through snooping, searching the Internet or intentionally checking an employee's social network site without consent. But it may be lawful if family genetic health information is inadvertently learned from social networking sites, such as Facebook, where an employee has consented to their employer having routine access.
Congress enacted the Genetic Information Nondiscrimination Act 2008 (GINA), the world's first national genetics anti-discrimination civil rights law, to address concerns that individuals may avoid undergoing genetic testing for fear that it might be used to jeopardise their health insurance or employment.
Title II of GINA prohibits the use of genetic information in employment - including decisions relating to promotions, job assignments, training, and benefits. But GINA's employment provisions raised many questions, including the liability of employers upon learning of an employee's family medical history through Internet sources, informal discussions in the workplace and other non-intended means.
The EEOC rules clarify that an unintentional discovery of genetic health information will generally not be considered a breach of GINA. Other exceptions include obtaining information inadvertently through voluntary health services such as occupational wellness programmes offered to employees achieve healthy lifestyles. An employer may also lawfully ask general health questions, including how an employee feels or if doctors have detected a cancer early, where the employee has already volunteered disclosure.
GINA, which came into effect on 21 November 2009, applies to employers with at least 15 employees and other 'covered' bodies including employment agencies. The EEOC, established under the Civil Rights Act of 1964, enforces Title II of GINA which deals with genetic discrimination in employment. Title I of GINA covers the use of genetic data in health insurance, for which responsibility lies with the Departments of Labor, Health and Human Services and the Treasury.
The EEOC rules were issued on 9 November 2010 and will become effective from 10 January 2011.