The U.S. Equal Employment Opportunity Commission (EEOC) recently issued final regulations implementing the Genetic Information Nondiscrimination Act of 2008 (GINA). GINA prohibits the intentional and, in many cases, inadvertent acquisition of genetic information by employers and insurers and the use of genetic information to make decisions about health insurance and employment, and restricts the disclosure of genetic information.

Genetic information is defined very broadly by the regulations and includes a person's family medical history. While the final regulations do not contain any significant changes from the proposed regulations issued on March 2, 2009, the EEOC's commentary to the final regulations emphasizes the breadth of an employer's obligations. Consequently, employers must exercise care in soliciting information from employees.

Employers should be particularly alert when conducting wellness programs with financial inducements for completing a health risk assessment. While wellness programs are permitted, all questions related to family medical history must be identified as voluntary. However, recognizing the challenges this posed to providers, the EEOC added an exception to the regulations to clarify that when a healthcare provider's employee receives a medical examination for the purpose of diagnosis and treatment unrelated to his or her employment, GINA would not cover genetic information obtained. However, HIPAA and state medical privacy laws likely would preclude the provider's use and/or disclosure of such information in most cases.

The final regulations become effective 60 days from formal publication in the Federal Register on November 9, 2010. For more information on the final GINA regulations, please see the EEOC webpage on genetic information discrimination.