In a prior notice, the Equal Employment Opportunity Commission (EEOC) announced that its new Genetic Information Nondiscrimination Act (GINA) regulations would be issued this month and that new Americans with Disabilities Act (ADA) regulations should be out in July. It now appears those dates were overly optimistic.
In a public session before the District of Columbia Bar’s Labor and Employment Committee on Wednesday, May 26, EEOC Commissioners Victoria Lipnic and Stuart Ishimaru indicated that with three new members and a new general counsel coming onto the board, there is certain to be a period of reexamination of the public comments about the regulations before the commissioners are prepared to vote on them.
In particular, Lipnic said she didn’t believe the ADA regulations would be published this summer in large part because of the agency’s large regulatory load and the need for the new appointees to become familiar with the material and have an opportunity to participate in the regulatory drafting process. Presumably, the same delay will affect the GINA regulations as well.
For employers, this is a respite — with problems. The delay will likely further forestall some potential litigants who don’t want to state their cases without knowing just what the regulations say. On the other hand, employers are unable to review and rewrite policies and otherwise take steps to ensure continued compliance with these laws.
For employers with wellness programs, the delay is especially frustrating. In light of the dissonance between GINA’s text and statements from the EEOC regarding the disclosure of family medical history, many wellness programs are in a lengthy “hold,” hoping that the GINA regulations would clarify just what medical information could be requested, under what terms, with what inducements, and so forth. That “hold” is destined to continue.
You can expect to read more about these developments in an upcoming issue of Federal Employment Law Insider.
Burton J. Fishman is an employment and labor law attorney with Fortney & Scott, LLC, in Washington, D.C. He has taken a leading role nationally in advising the business community on the impact of the ADA, the Family and Medical Leave Act, genetic discrimination, and the evolving law of affirmative action.