The U.S. Equal Employment Opportunity Commission (EEOC) recently published regulations interpreting the ADA Amendments Act of 2008 (ADAAA) and the Genetic Information Nondiscrimination Act of 2008 (GINA). The key provisions of these regulations, as well as practical steps for employers to achieve compliance, are listed below.
The ADAAA Regulations
The ADAAA made a number of changes to the Americans With Disabilities Act (ADA). The EEOC's regulations interpreting the ADAAA will become effective on May 24, 2011. Among the most significant provisions in the regulations are:
- Clarification of "disability": The new regulations include a list of impairments that will virtually always be considered disabilities, including bipolar disorder, cancer, diabetes, epilepsy and HIV infection. In addition, the new regulations specify certain impairments that may constitute disabilities, such as cosmetic disfigurement or an impairment that is in remission or episodic but substantially limits a major life activity when active.
- Broad interpretation of "substantially limits": An impairment does not need to prevent or severely restrict a major life activity to be considered a disability. The term "substantially limits" should be construed as broadly as permitted by the ADAAA.
- Mitigating measures irrelevant: With the exception of ordinary eyeglasses and contact lenses, the assessment of whether an impairment substantially limits a major life activity should be made without considering the ameliorative effects of mitigating measures, such as drugs that control an impairment.
- Individuals who are "regarded as" disabled: An individual is "regarded as" disabled if his or her employer believes that he or she has an impairment and discriminates against the individual based on this belief. However, an employer does not need to provide a reasonable accommodation for persons who are only "regarded as" disabled. Furthermore, the employer can assert as a defense that because an employee's condition is both transitory and minor, it cannot objectively be considered a disability.
The GINA Regulations
The purpose of GINA is to protect employees and labor union members from discrimination based on their genetic information. Title II of GINA prohibits public and private employers from deliberately acquiring an employee's genetic information and from using genetic information in employment decision-making. Title II also strictly limits an employer's disclosure of such information and prohibits retaliation against employees who complain of genetic discrimination. Title II took effect on November 21, 2009, and the EEOC's regulations became effective on January 10, 2011. Highlights of the EEOC's regulations include:
- Broad definition of "genetic information": GINA defines "genetic information" to include information about a person's genetic background or the medical history or genetic background of the person's family members (up to and including fourth-degree relatives). Genetic information includes information about an individual's genetic tests, the genetic tests of an individual's family members and the manifestation of a disease or disorder in an individual's family members.
- Acquisition of genetic information: GINA prohibits employers from requesting, requiring or purchasing genetic information about an employee. The term "request" includes: (1) an Internet search on an individual that is likely to produce genetic information; (2) actively listening to third-party conversations for the purpose of obtaining genetic information; and (3) making requests for information about an individual's current health status in a manner likely to lead to the discovery of genetic information.
- Safe harbor provision: Employers may shield themselves from liability for acquiring genetic information by warning anyone from whom it lawfully requests health-related information not to provide genetic information. The EEOC has provided suggested safe harbor language in the published regulations.
- Affirmative warning required: An employer must instruct health care providers not to collect genetic information, including family medical history, as part of an employment-related medical examination, such as a fitness-for-duty exam, on the employer's behalf. If the employer finds out that such information is being collected, the employer must take additional reasonable measures (including not using the services of that health care provider) to prevent this from occurring.
- Confidential medical file: Employers that possess written genetic information concerning an employee must store such information in a separate confidential medical file, as required by the ADA. Genetic information included in personnel files prior to November 21, 2009, need not be removed.
To achieve compliance with the ADAAA and GINA, we suggest that employers do the following:
- Provide comprehensive training to human resources personnel, managers and recruiters regarding permissible and impermissible medical inquiries.
- Engage in the interactive process to determine whether a reasonable accommodation is needed for employees with medical impairments. Apply this policy broadly.
- Adapt medical information requests, including those related to employment-required medical examinations, to include the safe harbor language set forth in the GINA regulations.
- Revise policies to include prohibitions against discrimination based on genetic information and associated retaliation.
- Store records that contain genetic information in a separate, confidential medical file with other medical records.