In Reply: I appreciate the opportunity that Dr. Scott's letter provides for further clarification of the provisions of GINA with regard to discrimination by employers. The core prohibition of Title II of GINA is that employers may not use genetic information in hiring or other work-related decisions. As Dr. Scott notes, "genetic information" includes employees' family histories of illness. To reinforce the prohibition against discrimination, GINA states that employers generally may not request genetic information. However, the statute recognizes that employers may obtain genetic data in a number of other ways, including inadvertently (for example, when the employee spontaneously discloses a family history), as part of an employer-provided wellness program, and in the course of evaluating requests for family and medical leave. Such permissible acquisition of data does not expose employers to liability under the terms of GINA unless they subsequently use the information for an illegitimate purpose.
In March 2010 the EEOC issued draft regulations implementing GINA (1). The regulations address ways in which employers might acquire genetic information as a result of medical examinations—the primary means by which mental health professionals may be implicated in Title II of GINA. Employers will not be permitted to inquire into family history and genetic testing data for the purpose of fitness-for-duty evaluations or to determine what may constitute reasonable accommodations under the Americans With Disabilities Act. Although the draft regulations are not entirely clear on this point, employers may need to instruct medical and mental health professionals performing such evaluations on their behalf to avoid those areas of inquiry, or at least not to report such information to the employer. Should employers acquire genetic information from other kinds of evaluations in which they have not specifically requested that such information be provided, the EEOC indicates in its commentary on the draft regulations that this will be considered inadvertent acquisition.
We will know more about how GINA will be implemented when final regulations are issued. But it appears that the EEOC is aware of some of the complexities in this area and is attempting to grapple with them in reasonable ways.
Equal Employment Opportunity Commission: Regulations Under the Genetic Information Nondiscrimination Act of 2008. CFR 29 Part 1635, Mar 2, 2009