On November 9, 2010, the Equal Employment Opportunity Commission ("EEOC") released its Regulations under Title II of the Genetic Information Nondiscrimination Act of 2008 ("GINA"). The Regulations will take effect on January 10, 2011.

GINA was enacted to prohibit discrimination by employers and insurers based on one's genetic information. However, Title II of GINA also prohibits an employer's acquisition and disclosure of confidential genetic information, except in limited circumstances.

The Regulations confirm that the law is modeled after other federal equal employment statutes that prohibit both discrimination and retaliation against applicants and employees. However, other provisions, such as GINA's impact on the Family Medical Leave Act ("FMLA"), should be closely examined by employers.

Although GINA generally prohibits employer acquisition of genetic information, the Regulations contain a "safe harbor" exception by which employers will not violate the law if they inadvertently obtain such information through a lawful request for medical information that does not specifically request genetic information. However, any such request must contain language notifying the responding party of GINA's prohibitions and discouraging the party from producing any genetic information.

Pursuant to the FMLA, an employer, whose employee requests leave for his or her own serious health condition, must provide a certification form to the employee requesting sufficient medical information to justify the need for leave. Reasoning that genetic information is not needed to justify this type of leave, the Regulations would require all such certifications to be accompanied by the "safe harbor" language.

The impact of GINA is less clear where an employee requests FMLA leave to care for a family member. An employee's family medical history is specifically included in the definition of "genetic information," and the applicable FMLA certification form intentionally seeks the family member's relevant medical information. Therefore, the Regulations carve out a separate exception permitting the acquisition of the type of "genetic information" that is acquired pursuant to the FMLA or a comparable law or company policy.

It is possible that a lawful request for information about the family member's health condition could inadvertently cause the production of other types of "genetic information," such as genetic testing information. Therefore, such certification requests should contain a modified disclaimer provision that is carefully tailored to prevent the responding party from disclosing any "genetic information" other than what is specifically requested in the certification.