On November 9, 2010, the Equal Employment Opportunity Commission (EEOC) issued final regulations implementing Title II of the Genetic Information Nondiscrimination Act (GINA), a law that generally prohibits employers from using or considering genetic information or family history in making employment decisions. The regulations specifically address the use, acquisition and maintenance of genetic information in the employment context and provide significant guidance on how employers can avoid running afoul of GINA’s protections.
GINA makes it unlawful for private employers with 15 or more employees and other covered entities to discriminate against employees or applicants on the basis of genetic information—regardless of how it was acquired—in the hiring, firing, pay, job assignment, promotion, layoff, training, benefits or other terms and conditions of employment. “Genetic information” is an individual or family member’s genetic testing, family medical history, requests for genetic services and genetic information carried by a fetus or embryo. “Genetic testing” is an analysis of human DNA and other genetic information, such as tests to determine an individual’s predisposition to certain diseases or conditions. Genetic testing does not include tests for viruses, infectious or communicable diseases, or the presence of alcohol or illegal drugs.
GINA also prohibits employers from requesting or acquiring an employee’s genetic information or family medical history. The regulations, however, carve out important exceptions for when this prohibition does not apply, including:
- Employers will not be liable for inadvertent acquisitions of an employee’s genetic information, including passively overhearing a conversation or receiving unsolicited information about an employee or family member’s health.
- Employers may obtain genetic information as part of an employee’s voluntary participation in a health, genetic or wellness program, provided the employee gives prior authorization and is not required to provide genetic information to participate.
- Employers may obtain proof of a family member’s medical condition for purposes of the Family and Medical Leave Act.
- Employers will not be liable for genetic information acquired through commercially and publicly available sources, provided the employer did not actively search these sources with the intent of finding genetic information.
Fortunately, the regulations offer a safe harbor for employers requesting health-related information, including when such information is sought for the purposes of evaluating a request for reasonable accommodation under the Americans with Disabilities Act (ADA) or a request for leave under the Family and Medical Leave Act. Employers are advised to include language in each request warning the employee and/or health care provider not to provide genetic information in their response, and the EEOC has provided sample language that employers may use. Employers are further advised to warn their health care providers not to collect genetic information as part of employment-related medical exams.
GINA also closely regulates the disclosure of genetic information. Employers must maintain genetic information confidentially and separate from other personal data, though genetic information may be kept in the same file as other medical information that is subject to the ADA. Employers may disclose genetic information only in limited circumstances.
The EEOC’s final regulations on Title II of GINA may be found in their entirety at http://edocket.access.gpo.gov/2010/pdf/2010-28011.pdf. Employers should take steps to ensure compliance with GINA, including revision of EEO policies to include prohibitions against discrimination based on genetic information and review of current policies and procedures to ensure compliance with the law.