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EEOC Opens Comment Phase on GINA

NEW YORK (GenomeWeb News) — The Equal Employment Opportunity Commission is preparing to implement the Genetic Information Non-discrimination Act of 2008, and today opened a 60-day public comment phase regarding the Title II part of the law that pertains to employment rules.

The EEOC kicked off the comment period with a public hearing today, which was followed by a closed-door session, during which representatives of different stakeholders talked about some points of contention with the employment part of the bill that remained after its passage, particularly about the so-called firewall protection in the law that separates Title I from Title II.

"As a deliberative body, we want to ensure that the intent of Congress is properly carried out through our regulations," EEOC Vice Chair Christine Griffin said in a statement, adding that the public comment phase "is a critical part of that process."

Title II prohibits employers, employment companies, and others from using genetic information when making certain decisions, including those about hiring and firing, and it prohibits them from intentionally acquiring and disseminating such genetic information. It also prohibits employers from requesting, requiring, or purchasing such information except under certain circumstances.

Representatives from industry groups have found some of this section to be problematic, and still would like more clarification in the language and more protection for employers.

The problems that some in industry see in Title II and recommendations on how to implement the regulations were outlined in statements today by Rae Vann, who is general counsel for the Equal Employment Advisory Council, and Karen Elliott of the small business-focused law firm Gregory Kaplan and a member of the Society for Human Resource Management.

Vann said the EEOC should provide some guidance on the specific degrees of familial relationships that the law counts as "family members."

She also argued that the regulation should include a provision that would require claimants to show evidence that an employer intentionally violated certain provisions in the law.

Vann also stated that the EEOC's regulations should illustrate how a provision regarding "publicly available information" would apply, and provided the example of a manager who happens to read in the popular press a story on a genetic marker that an employee has previously disclosed having.

In addition, Vann argued that employers should always be protected by information that turns up after requests made under the Family Medical Leave Act as part of the medical certification process.

Elliott said that employers should have protections that keep them safe in several circumstances regarding possession of "genetic information" that are not clearly protected under the law. The employer should be covered when it did not seek the information, and when it was disclosed by the employee, Elliott stated.

Adding to Vann's call for an exception regarding FMLA compliance, Elliott said employers should be protected for complying with local FMLA laws, worker's compensation forms, discussions regarding health insurance coverage, and accommodations with the Americans with Disabilities Act.

Susannah Baruch, who is the law and policy director for the Genetics and Public Policy Center at Johns Hopkins University, which supported the legislation, said that "GINA need not and should not create a burden for employers."

Baruch agreed that law will require some clarification as it is turned into EEOC regulations. "We recognize that employers need clarity on what constitutes inadvertent acquisition of information," she stated.

She said that employers already complying with the FMLA and the ADA "should find that GINA's prohibitions are consistent with those laws in terms of procedures and enforcement.

"We expect the regulations will provide assurance that this is the case," she said.

Baruch also wants the EEOC to illustrate the definitions of "concepts like genetic test and genetic information and manifest disease," and should "provide clear examples and remain flexible as science changes," she added.

The commission is expected to release its official Notice of Proposed Rule Making sometime this week.

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