Genetic Non-Discrimination in Insurance an d Employment : Side-by-Side Analysis o f Leading Bills of the 107 th Congress

Order Code RL3152 7 Report for Congres s Received through the CRS Web Genetic Non-Discrimination in Insurance an d Employment : Side-by-Side Analysis o f Leading Bills of the 107 th Congress Updated January 29, 2003 Jean Hearne Specialist in Social Legislatio n Domestic Social Policy Divisio n Nancy Lee Jone s Legislative Attorne y American Law Divisio n Congressional Research Service +:+ The Library of Congres s Genetic Non-Discrimination in Insurance and Employment : Side-by-Side Analysis o f Leading Bills of the 107 th Congress Summary This report compares current law with provisions of leading House and Senat e bills of the 107th Congress that would have limited the use of genetic informatio n with respect to health insurance and employment . Those bills are S . 1995, the Genetic Information Nondiscrimination Act of 2002, sponsored by Senators Snowe , Frist and Jeffords on March 6, 2002 and H.R. 602, the Genetic Nondiscrimination i n Health Insurance and Employment Act, introduced by Representative Slaughter February 13, 2001 . The companion bill of H .R. 602, S. 318, was introduced b y Senator Daschle the same day . The bills would have expanded upon the protection s established by the Health Insurance Portability and Affordability Act (HIPAA) an d established new protections for workers . Both bills sought to balance the privacy o f patients' predictive genetic information (PGI) with the interests of employers and o f health insurance companies that use information regarding the health care needs o f covered groups so that policies are priced to reflect the costs of the coverag e provided . Congressional action in genetic non-discrimination has been identified a s a priority for the 108 th Congress . The provisions of the leading bills from the 107 th Congress are likely to represent a starting point for renewed activity in this area . Both S . 1995 and H.R. 602/S . 318 would have made it unlawful to discriminat e in enrollment into health plans and in setting premiums based on predictive geneti c information but H .R . 602/S . 318 was interpreted to be more protective. Both bill s would have prohibited insurers in the group market from adjusting a group' s premiums based on an individual's genetic information, but only H .R. 602/S . 31 8 would have prohibited insurers from denying eligibility to a group based on a n individual's genetic information . The two bills' health insurance protections als o differed in their scope of applicability - H .R. 602/S . 318's provisions would hav e applied more broadly to supplemental Medicare policies such as Medigap, as well a s all state and local government-sponsored plans - and whether confidentialit y safeguards and enforcement provisions are included. Differences in the definition of protected genetic information also extended to the employment provisions as well . Both S . 1995 and H .R. 602/S . 318 would hav e made it an unlawful employment practice for an employer to discriminate against a n individual on the basis of "genetic information" (S . 1995) or "protected geneti c information" (H .R. 602/S . 318) . Both bills defined these terms as information concerning the genetic tests of individuals or their family members or concerning th e occurrence of a disease or disorder in a family member of the individual but the definition of "genetic information" in S . 1995 also required that the information b e used "to predict the risk of disease in asymptomatic or undiagnosed individuals ." Another difference between the bills is the use of "intent" in S . 1995 . For example , the provision limiting the collection of genetic information in S . 1995 would have made it an unlawful employment practice for an employer to "intentionally request, require, or purchase genetic information" while H .R. 602/S . 318 did not require intent and simply prohibited the collection of protected genetic information . Thi s product will not be updated . Contents Selected Differences Between S . 1995 and H .R. 602/S . 318 Health Insurance Employment Genetic Discrimination - Health Insurance Genetic Discrimination - Employment 3 3 4 6 15 Genetic Non-Discrimination in Insuranc e and Employment: Side-by-Side Analysis of Leading Bills of the 107 th Congress On June 26, 2000, at a special ceremony at the White House, the completion o f the "rough draft" of the human genome was announced . This milestone, which has been compared to the discoveries of Galileo, and other advances in genetics hav e created novel legal issues relating to genetic information . President Clinton, on February 8, 2000, issued an executive order prohibiting discrimination against federal employees based on protected genetic information . There are currently, however, no federal laws that directly and comprehensivel y address the issues raised by the use of genetic information .' A few laws address parts of these issues . The Health Insurance Portability and Accountability Act of 199 6 (HIPAA), P .L . 104-191, is the only federal law that directly addresses the issue o f discrimination based on genetic information, albeit not in a comprehensive manner . Its protections are limited to certain situations involving health insurance, includin g employer-sponsored benefit plans that include health insurance . Under HIPAA' s employer group market protections : 1) insurers operating in the small group marke t may not deny enrollment to most small groups ; 2) group plans or insurance issuers may not deny enrollment to an individual enrolling as part of a group based on th e individual's health status (which is defined to include genetic information) ; 3) group plans or insurance issuers may not charge individuals enrolling as part of a grou p more than others in the group based on health status . However, insurers may charg e the entire group more based on the health status of an individual or individuals withi n the group. In the individual market, federal law permits insurers to set premium s based on an applicant's genetic information, or deny that applicant coverage if he/sh e is not HIPAA-protected although some states prohibit such activities . With respect to employment, the Equal Employment Opportunity Commissio n (EEOC) has argued that the Americans with Disabilities Act (ADA), 42 U .S .C. § §12101 et seq ., applies to discrimination based on a genetic trait but there is no cas e law on this issue and Supreme Court decisions discussing the definition of disabilit y have raised doubts concerning the EEOC's interpretation .' Also, it is possible tha t Title VH of the Civil Rights Act of 1964, 42 U.S.C . § 2000e et seq ., prohibitin g ` There are numerous state statutes . For charts examining the various state statutes se e [http :/lwww .ncsl .org/programs/healthigenetics/ndiscrim .htm] and [http :ll www . nhgri .nih. gov/Policy_and_public_affairs/Legislation/workplace . htm] . ' For a more detailed discussion of this issue and genetic discrimination generally see, CR S Report RL30006, Genetic Information : Legal Issues Relating to Discrimination an d Privacy, by Nancy Lee Jones . CRS-2 employment discrimination on the basis of race, sex and national origin, might b e applicable to genetic discrimination based on a racially linked trait like sickle cel l anemia . A medical privacy rule, issued on December 20, 2000 by the Department o f Health and Human Services, establish safeguards with respect to the use an d disclosure of individually identifiable health information, which includes geneti c information .' Under the rule,4 health care providers and health plans may share a patient's health information, including genetic information, with the patient's prio r consent . Health plan requests for a provider to disclose genetic test results ar e subject to the rule's minimum necessary standard (i .e ., the provider need only disclose the minimum amount of information necessary to satisfy the intende d purpose of the request). The privacy rule does not in any way address the use o f genetic information by health insurers in making enrollment decisions and settin g premiums . The regulation went into effect on April 14, 2001 and since then change s have been proposed . The chart that follows compares current law with the provisions of the leadin g House and Senate bills of the 107th Congress that would have limited the use o f genetic information with respect to health insurance and employment : S . 1995, th e Genetic Information Nondiscrimination Act of 2002, sponsored by Senators Snowe , Frist and Jeffords on March 6, 2002 and H .R. 602, the Genetic Nondiscrimination in Health Insurance and Employment Act, introduced by Representative Slaughter o n February 13, 2001 . The companion bill of H .R. 602, S. 318, was introduced by Senator Daschle introduced in the Senate on the same day . The bills would hav e expanded upon the protections that HIPAA offers and established new protection s for workers . Both sought to balance the privacy of patients' genetic information wit h the interests of employers and of health insurance companies that use informatio n regarding the health care needs of covered groups to adequately price their policie s to cover the costs of the coverage provided . Congressional action in genetic nondiscrimination has been identified as a priority for the 108 th Congress . The provisions of the leading bills from the 107 th Congress are likely to represent a starting point for renewed activity in this area. Although there is no current law that directly addresses genetic discriminatio n in employment, the column described as "current law/comments" includes discussio n of related federal statutes and other information . In addition, some of the difference s in the bills have been indicated by placing the different words in a bold typeface . For example, this was done when S . 1995 uses the term "intentionally ." 3 65 Federal Register 82460 (December 20, 2000) . For further information on the rule see CRS Report RS20934, A Brief Summary of th e Medical Privacy Rule, by Gina Marie Stevens; CRS Report RS20500, Medical Records Privacy : Questions and Answers on the HIPAA Final Rule, by Stephen Redhead ; and CR S Report RL30620, Health Information Standards, Privacy, and Security : HIPAA 's Administrative Simplification Regulations, by Stephen Redhead . CRS-3 Selected Differences Betwee n S . 1995 and H .R. 6021S . 31 8 Health Insuranc e Both S . 1995 and H .R. 602/S . 318 would have extended the protections offere d under HIPAA and further limited the use and disclosure of genetic information, but H.R. 602/S . 318 was somewhat more protective . Both bills would have prohibite d insurers in the group market from adjusting a group's premiums based on a n individual's genetic information, but only H .R. 602/S . 318 would have prohibite d insurers from denying eligibility to a group based on an individual's geneti c information . In the individual market, both bills would have prohibited insurers fro m denying enrollment or adjusting an individual's premium based on geneti c information. Both bills included provisions that would have prohibited group plans or issuer s from requiring an individual or his or her family member to undergo a genetic tes t and would have only allowed such plans or issuers to request a genetic test if th e requestor is a health care professional who is providing health care services to that individual . S. 1995 also allowed individuals acting on behalf of a group health pla n or a health insurance issuer to request that a plan enrollee (or a potential enrollee) o r his or her family member undergo a genetic test . The agent of the plan or insure r would not, however, have been allowed to require the test . H.R. 602/S . 318 prohibited insurers from requesting, requiring, collecting, o r purchasing genetic information without a patient's authorization . S. 1995 included a similar provision but, in addition, included a second provision that appears t o contradict the first. The second provision would have allowed insurers to conditio n their services on the receipt of such information . H.R. 602/S . 318 also prohibite d insurers from disclosing genetic information to other plans, employers, etc ., without a patient's authorization . There was no comparable provision in S . 1995 . Finally, H.R. 602/S . 318 provided individuals with the right to sue, provides for civil penalties, and does not preempt more protective state laws . These provisions did not appear in S. 1995 . An important difference between the health insurance provisions of the two bill s concerns how protected genetic information was defined . S . 1995 specified that protected genetic information is genetic infounation used to predict risk of diseas e in asymptomatic or undiagnosed individuals . Exempted from this definition wer e physical exams and clinical/ lab tests, including chemical, blood, and urine analysis , performed to detect and diagnose disease . H.R. 602/S . 318 regulated "protecte d genetic information" which it defined more broadly as genetic tests of family history of disease . While there was no reference to "predictive" genetic information, as i n S. 1995, H .R. 602/S . 318 targeted predictive information by excluding from th e definition of "protected genetic information" any information that indicates th e current health status of the individual . The definition in S . 1995 clearly restricte d the protection to predictive information, while H .R. 602/S . 318, through its exemptions, may have had the same impact, although the Ianguage was not as clear . The insurance industry expressed concerned that the definition in H .R. 602/S . 318 CRS- 4 would have been interpreted broadly, preventing genetic information from being use d in underwriting health insurance even when a diagnosis of illness has been made . Finally, the two bills ' health insurance protections also differed in their scop e of applicability . Both bills' provisions applied to employer-sponsored health plans , health insurers and HMOs, plans sold in the individual market for insurance as wel l as state and local government sponsored plans, although S . 1995 would have allowe d certain state and local government plans to opt out . In addition, the protections o f H.R. 602/S. 318 would apply to supplemental Medicare policies such as Mediga p plans . Employment Both S . 1995 and H .R. 602/S . 318 would have made it an unlawful employment practice for an employer to discriminate against an individual on the basis of "geneti c information" (S . 1995) or "protected genetic information" (H .R. 602/S . 318). The two bills, however, contained some significant differences . They defined some terms differently including the terms "genetic information" and "protected geneti c information ." Both bills defined these terms as information concerning the geneti c tests of individuals or their family members or concerning the occurrence of a diseas e or disorder in a family member of the individual but the definition of "geneti c information" in S . 1995 also required that the information "is used to predict the ris k of disease in asymptomatic or undiagnosed individuals ." The exceptions to thes e definitions regarding employment are the same as those discussed previousl y regarding health insurance except that the employment definition in H .R. 602/S. 31 8 did not specifically include an exception regarding information about physical exam s of the individual and other information that indicates the current health status of th e individual . Another difference between the bills was in the use of "intent" in S . 1995. For example, the provision limiting the collection of genetic information in S . 199 5 would have made it an unlawful employment practice for an employer t o "intentionally request, require, or purchase genetic information" while H .R. 602/S. 318 would not have required intent, thereby prohibiting the collection of protecte d genetic information . Both bills provided for exceptions to this prohibition . S . 1995 in part excepted genetic monitoring that is required by federal, state, or local law . This exception which has no parallel provision in H .R. 602/S. 318, raised issue s about what laws might fit this exception .' Another exception contained in S . 1995 5 Some state laws specifically allow an employer to require genetic testing . For example , Louisiana statutes provide that "any employer, labor organization, or employment agenc y may request or require protected genetic information with respect to an applicant who ha s been given a conditional offer of employment or to an employee if: (a) the informatio n obtained is to be used exclusively to assess whether further medical evaluation is needed t o diagnose a current disease, or medical condition or disorder ; (b) such current disease, o r medical condition or disorder could prevent the applicant or employee from performing th e essential functions of the position held or desired ; and (c) the information will not be disclosed to persons other than medical personnel involved in or responsible for assessin g whether further medical evaluation is needed to diagnose a current disease, or medical (continued.. .) CRS- 5 that was not in H .R . 602/S. 318 concerns disparate impact . Under S . 1995, an employer would not have been considered to engage in an unlawful employment practice by applying a qualification standard, test or other selection criteria becaus e of its disparate impact on protected individuals . The enforcement provisions applicable to the employment sections of S . 199 5 and H .R. 602/S . 318 both generally paralleled the enforcement provisions of Title VI I of the Civil Rights Act of 1964 but also contained some differences . H.R. 602/S . 318, but not S . 1995, would have given the Equal Employment Opportunitie s Commission (EEOC) the powers under Section 717 of the Civil Rights Act of 196 4 which concern federal employees . S. 1995, but not H .R. 602/S. 318, would hav e required the promulgation of regulations by the EEOC ; H .R. 602/S . 318 allowed for the promulgation of regulations . S . 1995, but not H.R. 602/S . 318, would hav e specifically amended 42 U .S.C . § 1981 to allow for the recovery of compensatory an d punitive damages for intentional unlawful employment practices relating to geneti c information . 5 (...continued) condition or disorder ." LA Rev. Stat. 23 :368E . It is not clear whether this type of statut e would be covered by the proposed section . CRS- 6 Genetic Discrimination - Health Insuranc e Provision Scope Current Law S. 1995 : Genetic Information Nondiscrimination Act of 2002 The Employment Retirement Amends ERISA, PHSA, and, IRC . Income Security Act of 197 4 (ERISA), the Public Health Service Act (PHSA), and the Internal Revenue Code (IRC ) prohibit discrimination base d on health status under limite d circumstances, and guarantee renewability and availability o f plans for certain groups an d individuals. All insured an d self-insured employer-base d plans (ERISA), health insurers and HMOs (PHSA) and church-based plans (IRC) are subject to those rules . Federal government plan s comply . Certain state and local government plans can opt ou t of the group market protection s if states' laws provide alternative protections. Federal government plans comply . Certain state and local government plans can opt out. H.R. 60215 .318 : Geneti c Nondiscrimination in Healt h Insurance and Employment Act Similar to S . 1995, but state an d local government plans cannot op t out and includes supplemental Medicare policies such as Medigap plans . CRS- 7 Provision Enrollment in group plans Current Law Prohibits group plans and issuers in the group market from establishing eligibility rules for an individual enrolling in a group plan based on health status (defined to includ e genetic information) . S. 1995 : Genetic Informatio n Nondiscrimination Act of 2002 No provision . Requires issuers offerin g coverage in the small grou p market to accept any smal l group (guaranteed availability - but allows exceptions) . Enrollment in individual plans Premiums an d contributions in employer group market H.R. 60215 .318 : Geneti c Nondiscrimination in Healt h Insurance and Employment Act Prohibits health plans or issuer s offering coverage in the group market from denying eligibility t o groups based on predictive geneti c information (PGI) concerning an individual in the group or a family member. (Sections 101a and 102a) Insurers operating in the individual market must offe r (guaranteed availability ) coverage to eligible individuals (those with prior creditabl e coverage) and must guarantee renewal for all individuals i n the individual market . Prohibits health insurance issuer s offering coverage in the individua l market from using geneti c information as a condition of eligibility (including information about a request or receipt of genetic services) . Prohibits health insurance issuer s offering coverage in the individua l market from establishing rules of eligibility based on predictive genetic information . Group plans and issuers in the group market cannot charge individuals more or quote higher rates for individuals i n groups based on health statu s (defined to include genetic information.) Prohibits health plans or issuer s offering coverage in the grou p market from adjusting premiums or contribution amounts for a group based on geneti c information concerning an individual (or a family member) i n the group, including information about a request for or receipt o f genetic services . Same as S . 1995 . (Section 102b ) (Sections 101a and 102a) CRS- 8 Provision Premiums an d contributions i n individual market Current Law No federal provision . Many states have enacted law s to protect citizens from discrimination based on geneti c testing and information, by prohibiting insurers from mandating testing, inquiring about test results or usin g genetic information t o determine insurance rates . S . 1995 : Genetic Information Nondiscrimination Act of 2002 Prohibits health plans or issuers offering coverage in the individua l market from adjusting premiums or contribution amounts for an individual based on geneti c information concerning th e individual (or a family member) , including information about a request for or receipt of geneti c services . H.R. 60215 .318 : Genetic Nondiscrimination in Healt h Insurance and Employment Ac t Same as S . I995 . (Section 102b) CRS- 9 Provision Collecting predictive genetic information Current Law No provision . S . 1995 : Genetic Information Nondiscrimination Act of 2002 H .R . 60215 .318 : Genetic Nondiscrimination in Health Insurance and Employment Ac t Prohibits group plans or issuers from requiring an individual or family member to undergo a genetic test as well as from requesting or requiring PGI concerning an individual or famil y member (including informatio n about a request for or receipt of genetic services) . Prohibits group plans or issuers from requesting or requiring a n individual or family member t o undergo a genetic test except for health care professionals who are providing treatment to th e individual . Those health care professionals may request but no t require such a genetic test . Allows an individual who is actin g on behalf of a group health plan o r health insurance issuer, to request , but not require, that such individual or family member o f such individual undergo a geneti c test. Other differences include 1 ) prohibits the purchase of PGI, 2) specifies that plans and issuers are prohibited from disclosing PGI t o other insurers or plan sponsors , agents, third party administrators or any other entities subject to state insurance laws, any entities tha t collect such PGI, the individual' s employer or plan sponsor or an y other person as specified by the Secretary in regulation, 3) does no t require inclusion of notice o f confidentiality safeguards wit h requests for PGI, and 4 ) prohibitions against collection an d disclosure do not apply if an individual provides prior, knowing , voluntary and written authorization for such . Allows group plan or issuers t o request an individual or famil y member to disclose or authorize the collection or disclosure of such information if for diagnosis , treatment, or payment relating t o the provision of health care items or services for such individual . Such requests shall include a notice of confidentialit y safeguards . CRS-10 Provision Current Law S. 1995 : Genetic Informatio n Nondiscrimination Act of 2002 H .R . 602/S . 318 : Geneti c Nondiscrimination in Healt h Insurance and Employment Act Notice of confidentiality practices No provision . Requires group plans or issuers t o post or provide in writing, notic e of the confidentiality practice s including; 1) a description of an individual's rights with respect t o PGI, 2) procedures established t o ensure those rights, and 3) th e right to obtain a copy of the notic e on confidentiality practices . No provision . Safeguards No provision . Requires group plans or issuers (i n connection with group plans) t o establish and maintai n administrative, technical and physical safeguards to protect the confidentiality, security, accuracy and integrity of PGI . No provision . Plans or issuers would be deemed in compliance with thi s requirement if they comply wit h standards created by the Secretary of HHS . CRS-1 1 Provision Definition of genetic information Current Law S . 1995 : Genetic Informatio n Nondiscrimination Act of 200 2 Genetic information-Information concerning the genetic tests o f individuals or their famil y members or concerning the occurrence of a disease or disorder in a family member of th e individual that is used to predict risk of disease in asymptomatic or undiagnosed individuals . H .R . 6021S . 318 : Geneti c Nondiscrimination in Health Insurance and Employment Act Protected genetic informatio n (PGI) - Information about a n individual's genetic tests, or famil y members of the individual, o r information about the occurrence of a disease or disorder in famil y members , Genetic information - Informatio n about genes, gene products, o r inherited characteristics that ma y derive from an individual or a family member of such individua l (including about a request for or the receipt of genetic services by suc h individual or family member o f such individual) . Exceptions - Does not include information about the sex, age o f the individual, information derived from clinical and laboratory tests such as chemical, blood, or urin e analyses including cholesterol tests, used to determine health status or detect illness or diagnos e disease, and information about physical exams of an individual . Exceptions - PGI does not include information about the sex or age o f the individual ; information about chemical, blood, or urine analyse s of the individual, unless thes e analyses are genetic tests ; about physical exams of the individual , and other information tha t indicates the current health status of an individual . CRS-1 2 Provision Other definitions Current Law S. 1995 : Genetic Informatio n Nondiscrimination Act of 2002 H.R. 60215 .318 : Geneti c Nondiscrimination in Healt h Insurance and Employment Act Genetic test : The analysis o f Genetic test: Similar to S . 1995 but human DNA, RNA, chromosomes , does not include metabolic test s proteins, and metabolites, that that are not intended to reveal PGI . detect genotypes, mutations, or chromosomal changes . Does no t include information described i n the exceptions to the definition of genetic information . Genetic services : health service s provided for genetic education an d counseling. Genetic services : health services , including genetic tests, provided t o obtain, assess, or interpret genetic information for diagnostic and therapeutic purposes and for genetic education and counseling. CRS-1 3 Provision Current Law Effective dates S . 1995 : Genetic Informatio n Nondiscrimination Act of 2002 Effective for plan years beginnin g 18 months after the date of enactment . H .R . 60215.318 : Genetic Nondiscrimination in Health Insurance and Employment Ac t For group plans and issuers offerin g coverage in connection with a group plan, plan years beginning after October 1, 2002 . For collectively bargaine d agreements ratified before the dat e of enactment, the latter of the date s when the last agreement terminate s or October 1, 2002 . For states that require legislation t o conform its regulatory program to these standards and do not have a legislature scheduled to meet i n 2002, the effective date is the firs t day of the first calendar quarter after the close of the first legislativ e session that begins on or after July 1, 2002 . Enforcement Under current ERISA , claimants can sue employe r benefit plans for benefits du e and other limited fees . Under current IRC, the Interna l Revenue Service can fine a noncomplying employer $10 0 per day per violation . No new provision . Courts may award any appropriat e legal or equitable relief an d attorney fees in any case in which a plan sponsor, health insurance issuer or any third party acting o n behalf of a plan or issuer) violate s the aforementioned provisions . Civil penalties in an amount not t o exceed $50,000 for a first violation ; and $100,000 for any subsequen t violation may be awarded . Such penalties would be paid to th e general fund of the Treasury . CRS-1 4 Provision Current Law Coordination wit h state laws Generally, the federa l protections do not supersed e state laws in those areas relating to health insuranc e issuers in connection with group plans except to the exten t that such laws would prevent the application of the federa l laws . I S . 1995 : Genetic Informatio n Nondiscrimination Act of 2002 No new provision . Current law preemption provisions woul d apply. H .R . 60215.318 : Genetic Nondiscrimination in Health Insurance and Employment Ac t Does not supercede state laws that more completely protect th e confidentiality of geneti c information . CRS-1 5 Genetic Discrimination - Employment Provision Current LawlComment s Definitions S . 1995 : Genetic Informatio n Nondiscrimination Act of 2002 H. R. 602IS . 318 : Geneti c Nondiscrimination in Healt h Insurance and Employment Act Commission means the Equa l Employment Commission . Section 717 of the Civil Rights Act of 1964, 42 U .S .C . §2000e-16 , concerns employment by the federal government . Opportunit y Employee, employer, employmen t agency, and labor organization have the meanings given in Section 701 of the Civil Right s Act of 1964 (42 U.S .C . §2000e) . Employee and member as use d with respect to a labo r organization include an applican t for employment and an applicant for membership in a labo r organization respectively. Family Member means spouse , Same as S . 1995 except that th e terms employee and employer shall also include the meanings give n those terms in Section 717 of th e Civil Rights Act of 1964 (42 U .S .C . §2000e-16) . Same as S . 1995 . dependant child who is born to o r placed for adoption with th e individual and all other individual s related by blood to the individua l or the spouse or the dependant child . Genetic information - Informatio n Protected Genetic Information - concerning the genetic tests o f individuals or their famil y members or concerning th e occurrence of a disease or disorde r in a family member of th e individual and that is used to predict the risk of disease in asymptomatic or undiagnose d individuals . Information concerning the geneti c tests of individuals or their famil y members or concerning th e occurrence of a disease or disorder in a family member of the individual . CRS-1 6 Provision Current Law/Comments S . 1995 : Genetic Informatio n Nondiscrimination Act of 2002 H. R. 60215 .318 : Genetic Nondiscrimination in Healt h Insurance and Employment Ac t Exceptions - Does not include information about the sex or age of the individual, information derived from clinical an d laboratory tests such as the chemical, blood, or urine analyse s of the individual includin g cholesterol tests, used t o determine health status or detec t illness or diagnose disease, an d information about physica l exams of the individual . Exceptions - Does not includ e information about the sex or age o f the individual, information about chemical, blood, or urine analyse s of individuals, unless thes e analyses are genetic tests . (Section 202 ) Genetic Monitoring - The term genetic monitoring means the periodic examination o f employees to evaluate acquire d modifications to their geneti c material that may have develope d in the course of employment du e to exposure to toxic substances i n the workplace in order to identify , evaluate, and respond to th e effects of or control advers e environmental exposures in th e workplace . Same as S . 1995 . Genetic Services - Geneti c services means health services provided for genetic education an d counseling . Genetic Services - Genetic service s means health services, including genetic tests, provided to obtain, assess, or interpret geneti c information for diagnostic an d therapeutic purposes, and fo r genetic education and counseling. CRS-1 7 Provision Employer practices Current Law/Comments The language in the bills parallel s that in Title VII of the Civil Rights Act of 1964, 42 U.S .C . §2000e-2 . The language in the ADA is somewhat similar but is mor e detailed, including, for example, a requirement for the provision o f reasonable accommodations . Se e 42 U .S .C . §12112 . S . 1995 : Genetic Information Nondiscrimination Act of 2002 H.R. 60215 .318 : Genetic Nondiscrimination in Health Insurance and Employment Ac t Genetic Test - Genetic test mean s the analysis of human DNA, RNA , chromosomes, proteins, an d metabolites, that detect genotypes , mutations, or chromosoma l changes . It does not include information described in the exceptions to the definition o f genetic information . Genetic Test - Genetic test means the analysis of human DNA, ItNA , chromosomes, proteins, an d metabolites, that detect genotypes , mutations, or chromosoma l changes except that the conducting of metabolic tests that are no t intended to reveal protected geneti c information shall not be considere d to be a violation of §§203(a)(3) , 204(3), 205(3), or 206(3) regardless of the results of the tests . Test results that are protected geneti c information shall be subject to th e applicable provisions of this title . (Section 201) (Section 201 ) Use of Genetic Information - It shall be an unlawful employmen t practice for an employer to (1) fai l or refuse to hire or to discharge any individual, or otherwise to discriminate against an y individual with respect to the compensation, terms, conditions , or privileges of employment of th e individual because of geneti c information with respect to th e individual (or information about a request for or the receipt o f genetic services by such individual or family member of suc h individual) ; or (2) limit, segregate , or classify the employees of the In General -- Same as S . 199 5 except where S . 1995 references "genetic information " , H .R. 602/S . 318 references "protected geneti c information." CRS-1 8 Provision Current Law/Comments S . 1995 : Genetic Informatio n Nondiscrimination Act of 2002 H .R. 602/S . 318 : Geneti c Nondiscrimination in Health Insurance and Employment Ac t employer in any way that woul d deprive or tend to deprive an y individual of employmen t opportunities or otherwis e adversely affect the status of th e individual as an employee , because of genetic informatio n with respect to the individual (o r information about a request for o r the receipt of genetic services b y such individual or family membe r of such individual) . Regulations promulgated under th e Health Insurance Portability an d Accountability Act (HIPAA ) provide detailed privac y protections and prohibit companie s that sponsor health plans fro m accessing personal health information for employmen t purposes unless the patien t consents . See 65 Federal Registe r 82461 (December 20, 2000) . However, on March 27, 2002, th e Department of Health and Huma n Resources proposed changes to this rule that removed certain provisions requiring consent. Se e [littp :I/www .hhs .gov/ocrIhipaa ] For a more detailed discussion o f privacy issues generally see : CRS Report RS20500, Medical Records Privacy : Questions and Answers on the December 2000 Federal Limitation on the Collection of Genetic Information - It shall b e an unlawful employment practic e for an employer to intentionall y request, require, or purchas e genetic information with respect t o an employee or a family membe r of the employee (or informatio n about a request for the receipt o f genetic services by such employe e or a family of such employee) except (1) where the informatio n involved is to be used for geneti c monitoring of the biologica l effects of toxic substances in the workplace, but only if (A) th e employer provides written notic e of the genetic monitoring to th e employee, (B) the employe e provides prior, knowing , voluntary, and writte n authorization or the genetic Restriction on the Collection of Genetic Information - It shall b e an unlawful employment practic e for an employer to request, require , collect or purchase protecte d genetic information with respect to an individual or a family member of the individual except (A) wher e used for genetic monitoring o f biological effects of toxi c substances in the workplace, but only if (i) the employee ha s provided prior, knowing, voluntar y and written authorization, (ii) th e employee is informed of individua l monitoring results, (iii) th e monitoring conforms to any geneti c monitoring regulations that may be promulgated by the Secretary o f Labor under the Occupational Safety and Health Act (OSHA) o r the Federal Mine Safety and Health CRS-1 9 Provision Current Law/Comments Regulations, by Stephen Redhead and CRS Report RS20934, A Brief Summary of the Medical Privacy Rule, by Gina Marie Stevens . S . 1995 : Genetic Informatio n Nondiscrimination Act of 2002 H .R. 60215 .318 : Genetic Nondiscrimination in Health Insurance and Employment Ac t monitoring is required by federal , state or local law, (C) the employee is informed o f individual monitoring results, (D ) the monitoring conforms to any federal or state geneti c monitoring regulations includin g any regulations that may b e promulgated by the Secretary o f Labor under the Occupationa l Safety and Health Act (OSHA) o r the Federal Mine Safety an d Health Act ; and (E) the employer , except for a licensed health care professional who is involved i n the genetic monitoring program , receives the results of th e monitoring only in aggregat e terms that do not disclose th e identity of specific employees ; (2 ) where health or genetic services are offered by the employer, th e employee provides prior, knowing , voluntary, and writte n authorization and only th e employee or family member an d the licensed or certified heath car e professionals involved i n providing such services receive individually identifiabl e information concerning the results of such services ; or (3) where the request or requirement i s necessary to comply with federal , state, or local law . The protected Act, and (iv) the employer, excep t for a licensed health car e professional who is involved in th e genetic monitoring program , receives the results of th e monitoring only in aggregate terms that do not disclose the identity o f specific employees ; or (B) wher e health or genetic services ar e offered by the employer and th e employee provides prior, knowing , voluntary, and writte n authorization, and only th e employee or family member o f such employee receives the results ; or (C) with respect to an applican t who has been given a conditiona l offer of employment or to an employee, an employer ma y request, require, collect or purchas e the protected genetic information if (i) the request is consistent with th e Americans with Disabilities Ac t (ADA) or the Rehabilitation Act, (ii) the information obtained is to be used solely to assess whethe r further medical evaluation i s needed to diagnose a curren t disease, or medical condition or disorder, and such current disease , or medical condition or disorde r could prevent the applicant or employee from performing th e essential functions of the positio n desired to be held ; and (iii) the CRS-2 0 Provision Current Law/Comments S . 1995 : Genetic Information Nondiscrimination Act of 2002 genetic information which mayb e obtained in this manner may not be used to violate the prohibition s ofunlawful employment practices . Disparate Impact - The Suprem e Exception - An employer shall not Court first enunciated the concep t be considered to engage in an of disparate impact in Griggs v . unlawful employment practic e Duke Power Co ., 401 U .S . 424 because of its disparate impact , (1971), where the Court found that on the basis that the employe r Title VII of the Civil Rights Act o f applies a qualification standard , 1964 prohibited not only overt test, or other selection criterio n discrimination but also practice s that screens out or tends to scree n that are discriminatory i n out an individual if the selectio n operation . This concept wa s criterion has been shown to be codified by the Civil Rights Act o f job-related and consistent with 1991, P .L . 102-166, whic h business necessity . Th e amended 42 U.S .C . §2000e-2 to qualification standard may include include a new subsection (k ) a requirement that an individua l regarding disparate impact . The shall not pose a direct threat to the ADA provides that the powers and health or safety of othe r remedies provided under Title VI I individuals in the workplace . also apply to the ADA . However , disparate impact may not be applied to other statutes such as the Age Discrimination i n Employment Act (ADEA) . The Supreme Court granted certiorari and heard oral argument in Adams v. Florida Power Corp ., No 01 584, to determine this issue but H.R. 60215 .318 : Genetic Nondiscrimination in Healt h Insurance and Employment Act information described in suc h section will not be disclosed t o persons other than certain medica l personnel . The protected genetic information which may be obtaine d in this manner may not be used t o violate the prohibitions of unlawfu l employment practices . No comparable provision . CRS-2 1 Provision Current Law/Comments S . 1995 : Genetic Information Nondiscrimination Act of 2002 H.R. 602/S . 318 : Genetic Nondiscrimination in Healt h Insurance and Employment Act dismissed the case on April 1 , 2002 as "improvidently granted . " The federal judicial circuits ar e currently split concerning whethe r disparate impact may be applied to the ADEA . Employment agency practices These provisions generally trac k those in §703 of Title VII of the Civil Rights Act of 1964, 42 U .S .C . §2000e-2 . Rule of Construction Relating t o Group Health Plans - A group health plan is not prohibited fro m making a request regarding th e collection of genetic information if the request is consistent with provisions of ERISA, the Publi c Health Services Act, and th e Internal Revenue Code . No comparable provision . (Section 202) (Section 203 ) Use of Genetic Information - It shall be an unlawful employmen t practice for an employment agency (1) to fail or refuse to refe r for employment, or otherwis e discriminate against an y individual because of genetic information with respect to the individual or because o f information about a request for genetic services by the individua l or family member or the receipt o f genetic services by a family member, or (2) to limit, segregate , or classify individuals or fail o r refuse to refer for employment any Unlawful Employment Practices Same as S . 1995 except H .R . 602/S . 31S uses the term "protecte d genetic information" instead o f "genetic information." CRS-2 2 Provision Current Law/Comments S . 1995 : Genetic Informatio n Nondiscrimination Act of 2002 H .R. 60215.318 : Genetic Nondiscrimination in Health Insurance and Employment Ac t individual in any way that woul d deprive or tend to deprive any individual of employmen t opportunities, or otherwis e adversely affect the status of th e individual as an employee becaus e of genetic information with respect to the individual o r because of information about a request for genetic services by th e individual or family member o r the receipt of genetic services by a family member. See comments above concernin g the collection of geneti c information under employe r practices . Limitation on the Collection of Collection of Genetic Information Genetic Information - It shall b e It shall be an unlawful employmen t an unlawful employment practic e for an employment agency to intentionally request, require, o r purchase genetic information with respect to an employee or famil y member of the employee, o r information about a request for o r the receipt of genetic services b y such employee or family membe r of such employee except that th e provisions of Section 202(b ) (limitation on the collection o f genetic information by employers ) shall apply with respect t o employment agencies an d employees (and their famil y members) in the same manner an d to the same extent as such provisions apply to employers and practice for an employment agenc y to request, require, collect or purchase protected geneti c information with respect to an individual, or information about a request for or the receipt of geneti c services by such individual or family member of such individual . CRS-2 3 Provision Current LawlComments S . 1995 : Genetic Information Nondiscrimination Act of 2002 H .R. 602/S . 318 : Genetic Nondiscrimination in Healt h Insurance and Employment Act employees (and the famil y members of employees) . Section 202(d) of S . 1995 provides an exception to unlawfu l employment practices concernin g disparate impact . Labor organization practices These provisions generally trac k those in §703 of Title VII of th e Civil Rights Act of 1964, 4 2 U .S .C . §2000e-2 . Causing Employer Discrimination Causing Employer Discriminatio n It shall be an unlawfu l employment practice for a n employment agency to cause o r attempt to cause an employer to discriminate against an individua l in violation of this title . Same as S . 1995 . Limitation and Exception No comparable provision - Subsections (c) and (d) of Sectio n 202 shall apply with respect to employment agencies an d employees (and the famil y members of the employees) under this section like those provisions apply to employers and employee s (and the family members o f employees) under Section 202 . (Section 203) (Section 204 ) Use of Genetic Information - It shall be an unlawful employment practice for a labor organization t o exclude or to expel fro m membership of the organization , or otherwise to discriminate against, any individual because of genetic information with respect t o the individual (or informatio n about a request for or the receip t of genetic services by such Unlawful Employment Practices Same as S . 1995 except H .R . 602/S . 318 uses the term "protecte d genetic information" instead o f "genetic information ." CRS-2 4 Provision Current Law/Comments S . 1995 : Genetic Informatio n Nondiscrimination Act of 2002 H .R. 602/S . 318 : Genetic Nondiscrimination in Health Insurance and Employment Ac t individual or family member o f such an individual) ; or to limit , segregate, or classify the member s of the organization, or fail or refuse to refer for employment any individual, in any way that would deprive or tend to deprive any individual of employmen t opportunities, or otherwis e adversely affect the status of th e individual as an employee , because of genetic informatio n with respect to the individual (o r information about a request for or the receipt of genetic services by such individual or family membe r of such individual) . See comments above concernin g the collection of geneti c information under employer practices . Limitation on the Collection of Collection of Genetic Information Genetic Information - It shall b e It shall be an unlawful employmen t an unlawful employment practic e for a labor organization to intentionally request, require, or purchase genetic information with respect to an individual who is a member of a labor organizatio n or a family member of the individual, or information about a request for or the receipt of genetic services by such individual or family member of suc h individual except that th e provisions of Section 202(b) (limitation on the collection of genetic information by employers) practice for a labor organization t o request, require, collect or purchase protected geneti c information with respect to a n individual or information about a request for or the receipt of geneti c services by such individual or family member of such individual . CRS-2 5 Provision Current Law/Comments S. 1995 : Genetic Informatio n Nondiscrimination Act of 2002 H.R . 602/S . 318 : Geneti c Nondiscrimination in Healt h Insurance and Employment Act shall apply with respect to labor organizations and such individual s (and their family members) in th e same manner and to the same extent as such provisions apply t o employers and employees (and th e family members of employees). Section 202(d) of S . 1995 provide s an exception to unlawfu l employment practices concerning disparate impact. Training programs These provisions generally trac k those in §703 of Title VII of th e Civil Rights Act of 1964, 4 2 U .S .C . §2000e-2 . Causing Employer Discriminatio n Causing Employer Discriminatio n It shall be an unlawfu l employment practice for a labor organization to cause or attempt t o cause an employer to discriminat e against an individual in violation of this title . Same as S . 1995 . Limitation and Exception No comparable provision . - Subsections (c) and (d) of Sectio n 202 shall apply with respect t o labor organizations an d individuals who are members o f labor organizations (and the family members of suc h individuals) under this section like those provisions apply to employers and employees (and th e family members of employees ) under Section 202 . (Section 204) (Section 205 ) Use of Genetic Information - It shall be an unlawful employmen t practice for any employer, labo r organization, or joint labor- It shall be an unlawful employmen t practice for any employer, labo r organization, or joint labor- Unlawful Employment Practices - CRS-2 6 Provision Current Law/Comments S . 1995 : Genetic Informatio n Nondiscrimination Act of 2002 management committe e controlling apprenticeship or othe r training or retraining, includin g on-the-job training programs t o discriminate against an y individual because of genetic information with respect to the individual (or information about a request for or the receipt of genetic services by such individual or a family member of such individual) in admission to, or employment in, any program established to provid e apprenticeship or other training or retraining; or to limit, segregate , or classify the applicants for or participants in suc h apprenticeship or other trainin g or retraining, or fail or refuse t o refer for employment an y individual, in any way that woul d deprive or tend to deprive any individual of employmen t opportunities, or otherwis e adversely affect the status of the individual as an employee , because of genetic information with respect to the individual (o r information about a request for o r receipt of genetic services by such individual or family member o f such individual .) H .R. 602/S . 318 : Geneti c Nondiscrimination in Health Insurance and Employment Ac t management committee controllin g apprenticeship or other training o r retraining, including on-the-jo b training programs to discriminate against any individual because o f protected genetic information with respect to the individual (o r information about a request for o r the receipt of genetic services b y such individual) in admission to, o r employment in, any program established to provid e apprenticeship or other training o r retraining; or to limit, segregate, o r classify the members of th e organization, or fail or refuse t o refer for employment an y individual, in any way that woul d deprive or tend to deprive any individual of employmen t opportunities, or would limit th e employment opportunities, o r otherwise adversely affect the status of the individual as an employee, because of protecte d genetic information with respect to the individual (or information about a request for or receipt of geneti c services by such individual o r family member of such individual .) CRS-2 7 Provision Current LawlComments See comments above concerning the collection of geneti c information under employe r practices . S . 1995 : Genetic Informatio n Nondiscrimination Act of 2002 H .R. 60215 .318 : Geneti c Nondiscrimination in Healt h Insurance and Employment Ac t Limitation on the Collection of Collection of Genetic Informatio n Genetic Information - It shall b e - It shall be an unlawfu l an unlawful employment practic e employment practice for any for an employer, labo r employer, labor organization o r organization or joint labor- joint labor-management committe e management committee to controlling apprenticeship or othe r intentionally request, require, o r training or retraining, including on purchase genetic information wit h the-job training to request, require, respect to an individual who is a n collect or purchase protected applicant for or a participant i n genetic information with respect t o such apprenticeship or othe r an individual or information abou t training or retraining, o r a request for or the receipt of information about a request for o r genetic services by such individual the receipt of genetic services by or family member of such such individual or family membe r individual. of such individual except that th e provisions of Section 202(b ) (limitation on the collection o f genetic information by employers ) shall apply with respect to such employers, labor organizations , and joint labor-management committees and to suc h individuals (and their family members) in the same manner and to the same extent as such provisions apply to employers and employees (and the famil y members of employees) . Causing Employer Discriminatio n Causing Employer Discrimination It shall be an unlawfu l employment practice for a n employer, labor organization, or joint labor-management It shall be an unlawful employmen t practice for any employer, labor organization or joint labormanagement committee controlling CRS-2 8 Provision Current Law/Comments Section 202(d) of S . 1995 provide s an exception to unlawfu l employment practices concernin g disparate impact . Confidentiality of genetic infor nation See comments above concernin g the collection of geneti c information under employe r practices . S . 1995 : Genetic Information Nondiscrimination Act of 2002 H.R. 60215 .318 : Genetic Nondiscrimination in Healt h Insurance and Employment Act committee controllin g apprenticeship or other training or retraining, including on-the-jo b training to cause or attempt to cause an employer to discriminate against an applicant for or a participant in suc h apprenticeship or other trainin g in violation of this title. apprenticeship or other training o r retraining, including on-the-job training to cause or attempt to cause an employer to discriminat e against an individual in violation of this title . Limitation and Exception Subsections (c) and (d) of Sectio n 202 shall apply with respect to employers, labor organizations or joint labor-managemen t committees and to individuals wh o are applicants for or participants in apprenticeships or other training or retraining (and the famil y members of such individuals ) under this section like thos e provisions apply to employers and employees (and the famil y members of employees) under Section 202 . No comparable provisio n (Section 205) (Section 206) Confidentiality of Geneti c Information - If an employer , employment agency, labo r organization, or joint labormanagement committe e possesses genetic informatio n about an employee or member (or Maintenance of Protected Geneti c Information - If an employer, possesses protected geneti c information about an employee o r (or information about a request fo r or receipt of genetic services by such employee or family member CRS-29 Provision Current Law/Comments S . 1995 : Genetic Information Nondiscrimination Act of 2002 H.R . 6021S . 318 : Genetic Nondiscrimination in Healt h Insurance and Employment Act information about a request for or receipt of genetic services by suc h employee or member or famil y member of such employee or member), such information shal l be treated and maintained as part of the employee's or member' s confidential files . of such employee), suc h information shall be treated an d maintained as part of th e employee's confidential files . Limitation on Disclosure - A n Disclosure of Protected Geneti c Information - An employer shal l employer, employment agency, labor organization, or joint labor-management committe e shall not disclose geneti c information concerning a n employee or member (o r information about a request for or receipt of genetic information by such employee or member o r family member of such employe e or member) except (A) to th e employee (or family member i f the family member is receiving th e genetic services) or member at the request of the employee o r member ; (B) to an occupational or other health researcher if th e research is conducted i n compliance with the regulation s and protections provided under 4 5 C .F .R. Part 46 (HHS policy regarding the protection of huma n research subjects) or an y corresponding simila r regulation or rule ; (C) under not disclose protected geneti c information (or information about a request for or receipt of geneti c services by such employee or family member of such employee) except (1) to the employee who i s the subject of the information at th e request of the employee ; (2) to an occupational or other health researcher if the research i s conducted in compliance with th e regulations and protection s provided under 45 C .F.R . Part 46 ; (3) under legal compulsion of a federal court order, except that i f the court order was secured without the knowledge of the individual to whom the information refers, th e employer shall provide th e individual with adequate notice to challenge the court order unless th e court order also impose s confidentiality requirements ; (4) to government officials who are CRS-30 Provision Current Law/Comments S . 1995 : Genetic Information Nondiscrimination Act of 2002 H .R. 602/S . 318 : Genetic Nondiscrimination in Health Insurance and Employment Act legal compulsion of a federal o r state court order, except that if the court order was secured withou t the knowledge of the individual t o whom the information refers, the employer shall provide th e individual with adequate notice t o challenge the court order ; (D) t o government officials who are investigating compliance with thi s title if the information is relevant to the investigation ; (E) to the extent that such disclosure i s necessary to comply with federal , state or local law ; and (F) a s otherwise provided for in this title . investigating compliance with thi s act if the information is relevant t o the investigation . Rule of Construction Relating to Group Health Plans - Nothing in No comparable provision . this section shall be construed to prohibit a group health plan (a s such term is defined in Section 733(a) or ERISA, or a health insurance issuer offering group health insurance coverage in connection with a group health plan, from using or PGI if such use of disclosure is consistent wit h the provisions of Part 7 of subtitl e B of Title I of ERISA, Titl e XXVII of the Public Health Service Act, and Chapter 100 o f the Internal Revenue Code of 1986 (limitations on the use of geneti c information by employer based CRS-3 1 Provision Current LawlComments S . 1995 : Genetic Information Nondiscrimination Act of 2002 H .R. 602/S . 318 : Genetic Nondiscrimination in Healt h Insurance and Employment Act health plans and health insuranc e issuers . ) Enforcement/Civil Actions The enforcement sections of th e two bills generally parallel th e enforcement provisions of Titl e VII of the Civil Rights Act o f 1964 . The ADA also reference d the Title VII provisions regardin g enforcement for Title 1 of the AD A relating to employment . Generally, Title VII of the Civil Rights Act o f 1964 authorizes compensatory an d punitive damages in case s involving unlawful intentiona l discrimination but does no t provide for damages in disparate impact cases, 42 U .S .C . §§2000e 4, 2000e-5, 2000e-6, 2000e-8 an d 2000e-9 (Sections 705, 706, 707 , 709 and 710 of the Civil Right s Act of 1964) . P .L . 102-166, th e Civil Rights Act of 1991 , authorized compensatory an d punitive damages in cases of intentional discrimination . 4 2 U .S .C . §1981a(a)(1) . Like Titl e VII, plaintiffs under Title I of th e ADA are required to exhaus t administrative remedies . Th e addition of compensatory an d punitive damages made by th e Civil Rights Act of 1991 was made (Section 206) (Section 207 ) Enforcemen t Civil Action In General - One or No comparable provisio n more employees, members of a labor organization, or participants in training programs or a labo r organization may bring an action i n a federal or state court of competent jurisdiction against a n employer, employment agency , labor organization, or joint labor management committee or trainin g program who commits a violatio n of this title . Enforcement Enforcement by the Equal Employment Opportunit y Commission - In general. The The powers , remedies, and procedures set fort h in Sections 705, 706, 707, 709 , and 710 of the Civil Rights Act o f 1964 shall be the powers , remedies, and procedures that thi s title provides to the Commission , to the Attorney General, or to any person alleging an unlawfu l employment practice i n violation of Section 202 (othe r than subsection (e) of such Section, 203, 204, 205, or 206(a) or the regulations promulgate d under Section 210 concernin g employment. (Section 207) powers, remedies, and procedure s set forth in Sections 705, 706, 707 , 709, and 710 and 717 of the Civi l Rights Act of 1964 shall be th e powers, remedies, and procedure s provided to the Equa l Employment Opportunit y Commission to enforce this title . (Section 208) CRS-3 2 Provision Current Law/Comments specifically applicable to the ADA and there is a provision no t allowing damages where the covered entity demonstrates goo d faith efforts, in consultation with the person with a disability, regarding a reasonabl e accommodation . 42 U .S .C . § 1981 a(a)(3) . There are also caps for the sum total of compensatory and punitive damages dependin g on the workforce size of the employer . 42 U.S .C . § 1981a(b)(3) . Punitive damages are specificall y not allowed for a government, government agency or politica l subdivision . 42 U .S .C . §1981a(b)(1) . Section 717 of the Civil Rights Act of 1964, 42 U .S .C . §2000e-16 , concerns employment by th e federal government and i s referenced by H .R . 602/S . 318 but not S . 1995 . The ADA section requiring th e promulgation of regulations regarding employmen t discrimination by the EEOC contains a specific requirement for the regulations to be in a n accessible format . S . 1995 : Genetic Information Nondiscrimination Act of 2002 H .R. 60215 .318 : Genetic Nondiscrimination in Healt h Insurance and Employment Act CRS-33 Provision Current Law/Comments S . 1995 : Genetic Informatio n Nondiscrimination Act of 2002 H .R. 602/S . 318 : Genetic Nondiscrimination in Health Insurance and Employment Ac t Regulations - Not later than on e Regulations - The Commission year after the date of enactment o f this title, the Commission shal l issue final regulations in a n accessible format to carry out thi s title . (Section 210) may promulgate regulations t o implement these powers, remedie s and procedures . (Section 208 ) No comparable provision. Exhaustion of Remedies - Nothin g in this subsection shall be construe d to require that an individual exhaus t the administrative remedie s available through the EEOC prior to commencing a civil action under this section, except that if an individual files a charge o f discrimination with th e Commission that alleges a violatio n of this title, the individual shal l exhaust the administrative remedie s available through the Commissio n prior to commencing a civil actio n under this section. No comparable provision . Remedy - A federal or state court may award any appropriate legal o r equitable relief under this section . Such relief may include a requirement for the payment o f attorneys' fees and costs, including the cost of experts . (Section 208) CRS-3 4 Provision Amendment to th e revised statutes Current Law/Comments S . 1995 : Genetic Informatio n Nondiscrimination Act of 2002 H .R . 60215.318 : Genetic Nondiscrimination in Healt h Insurance and Employment Act Right of Recovery - 42 U .S .C . No comparable provision . § 1981 a(a) is amended by adding at the end : (4) Genetic information In an action brought by a complaining party under the powers, remedies, and procedure s set forth in Section 706 of the Civil Rights Act of 1964 a s authorized under Section 207 o f this act, against a respondent wh o is engaging (or who has engaged ) in an intentional unlawfu l employment practice prohibite d by Section 202 (other than subsection (e) of such Section) , 203, 204, 205, or 206(a) of this act against an individual (other tha n an action involving a n employment practice that i s allegedly unlawful because of it s disparate impact), th e complaining party may recove r compensatory and punitiv e damages as permitted under subsection (b), in addition to any relief otherwise provided for unde r Section 706(g) of the Civil Right s Act of 1964 from the respondent. Conforming amendments to 42 U .S .C . § 1981 are added . (Section 208) CRS-3 5 Provision Construction Current Law/Comments S . 1995 : Genetic Information Nondiscrimination Act of 2002 Nothing in this title shall b e construed to (1) limit the rights o r protections of an individual unde r the Americans with Disabilities Act, including coverage afforded to individuals under Section 10 2 of such act, or under th e Rehabilitation Act of 1973, excep t that an individual may not bring an action against an employer , employment agency, labo r organization, or joint labor management committe e pursuant to this title and als o pursuant to the ADA or th e Rehabilitation Act of 1973 if the actions are predicated on the same facts or a common occurrence ; (2) limit the rights or protections of an individual to bring an action under this title against an employer , employment agency, labo r organization, or joint labormanagement committee for a violation of this title, except tha t an individual may not bring an action against such an employer , employment agency, labo r organization, or joint labormanagement committee, wit h respect to a group health plan o r a health insurance issue r offering health insuranc e coverage in connection with a H . R. 602/S . 318 : Genetic Nondiscrimination in Healt h Insurance and Employment Act Nothing in this title shall be construed to (1) limit the rights or protections of an individual under the Americans with Disabilitie s Act, including coverage afforded to individuals under Section 102 of such act ; (2) limit the rights or protections of an individual under the Rehabilitation Act of 1973 ; (3 ) limit the rights or protections of a n individual under any other federa l or state statute that provides equa l or greater protection to a n individual than the rights or protections provided for under thi s act ; (4) apply to the Armed Force s Repository of Specimen Sample s for the Identification of Remains ; or (5) limit the statutory o r regulatory authority of th e Occupational Safety and Health Administration to promulgate o r enforce workplace safety an d health laws and regulations . CRS-3 6 Provision Current Law/Comments S . 1995 : Genetic Informatio n Nondiscrimination Act of 2002 H .R. 602/S . 318 : Geneti c Nondiscrimination in Health Insurance and Employment Ac t group health plan, under this title if the action is based on a violation of a provision of the amendments made by Title I ; (3) limit the rights or protection s of an individual under any other federal or state statute that provides equal or greate r protection to an individual than the rights or protections provide d for under this title ; (4) apply to th e Armed Forces Repository o f Specimen Samples for th e Identification of Remains ; (5) limit the authority of a federa l department or agency t o conduct or sponsor occupationa l or other health research that is conducted in compliance wit h the regulations contained in 4 5 C .F .R . Part 46 (or an y corresponding or simila r regulation or rule) ; and (6) Iimi t the statutory or regulator y authority of the Occupationa l Safety and Health Administratio n to promulgate or enforc e workplace safety and health laws and regulations . 45 C .F .R . Part 4 6 sets forth the HHS polic y regarding the protection of huma n research subjects . (Section 209) (Section 209) CRS-3 7 Provision Severability Authorization of Appropriations Effective Date Current Law/Comments S . 1995 : Genetic Informatio n Nondiscrimination Act of 2002 H .R. 60215 .318 : Genetic Nondiscrimination in Health Insurance and Employment Ac t If any provision of this title, an amendment made by this title, or the application of such provisio n or amendment to any person or circumstance is held to be unconstitutional, the remainder of this title, the amendments mad e by this title, and the application of such provisions to any person or circumstance shall not be affecte d thereby . If any provision of this act, an amendment made by this act, or th e application of such provision o r amendment to any person o r circumstance is held to b e unconstitutional, the remainder o f this act, the amendments made by this act, and the application of suc h provisions to any person o r circumstance shall not be affected thereby . (Section 211) (Section 301 ) There are authorized to be appropriated such sums as may be necessary to carry out this title . Same as S . 1995 . (Section 212) (Section 210 ) This title takes effect on the date that is 18 months after the enactment of the act ; however, no enforcement action shall b e commenced under Section 20 7 until the date on which the Commission issues fina l regulations under Section 210 . This title shall become effective o n October 1, 2002 . (Section 213) (Section 211)