ABC, along with five other organizations, May 1 filed comments with the Equal Employment Opportunity Commission on a proposed rule implementing provisions of the “Genetic Information Nondiscrimination Act of 2008” (GINA), a federal law that prohibits discrimination in health coverage and employment based on genetic information. The comments expressed overall support for the proposed rule and offered suggestions on how to achieve the goals of the legislation without unnecessarily burdening employers.
GINA aims to prevent employers from using genetic information for hiring, firing or promotion decisions, in addition to preventing health insurers from using genetic information for decisions about coverage or rates. The law goes into effect for employers Nov. 21.
“We strongly support genetic nondiscrimination and confidentiality and believe that employment decisions should be based on an individual’s qualifications and ability to perform a job, not on characteristics that have no bearing on job performance,” the comments stated. “While many improvements were made to GINA through the legislative process over the years, we remain concerned that an overly broad GINA regulatory framework will result in serious, negative, albeit unintended, consequences. We are particularly concerned that employers and employees will struggle to discern genetic information from general medical information about health status, disability and manifested disease.”
Specifically, the comments noted the need for a clear definition of what constitutes a manifested disease so GINA doesn’t hinder existing provisions that allow an employer to use post-offer examinations of employees to determine an applicant’s current ability to perform a job. In addition, the comments pointed out the lack of a concrete definition for family medical history and the need to clarify that the term only refers to inheritable conditions.
“We do not believe that Congress intended non-inheritable conditions, such as colds and the flu, upset stomachs, chicken pox, etc., in family members to be part of the family medical history,” the comments stated.
The groups also raised concern in the comments about the general prohibition on the acquisition of genetic information which appears to suggest that passive or inadvertent acquisition of genetic information by an employer would be seen as equivalent to actively requesting such information, which is prohibited and punishable under GINA.
GINA defines genetic information as: an individual’s genetic tests; genetic tests of an individual’s family members; genetic tests of any fetus of an individual or family member, and any genetic tests of an embryo legally held by an individual or family member; the manifestation of a disease or disorder in an individual’s family members; or any request for, or receipt of, genetic services by an individual or their family members. It generally does not apply to employers with fewer than 15 employees and it protects against discrimination for health coverage and employment only.
Other groups that signed the comments include the U.S. Chamber of Commerce, the Society for Human Resource Management, the College and University Professional Association for Human Resources, the National Public Employer Labor Relations Association, and the National Federation of Retailers.
To read the comments, visit
www.abc.org/comments.