The Genetic Information Nondiscrimination Act of 2008 (“GINA"), which became effective on November 21, 2009, makes it unlawful for an employer to discriminate against an employee based on his or her genetic information. Title I of GINA addresses the use of genetic information in health insurance. Title II prohibits employers from using genetic information in making employment decisions; prohibits employers from requesting, requiring or purchasing genetic information; requires that genetic information be maintained as a confidential medical record; and limits the disclosure of genetic information.

On November 9, 2010, the Equal Employment Opportunity Commission (“EEOC") published final regulations implementing Title II of GINA. The regulations, codified at 29 C.F.R. § 1635, will become effective 60 days from publication. The final regulations provide additional guidance on various sections of GINA. A few of these sections bear discussion.

Who Must Comply with GINA

Title II of GINA applies to private employers with fifteen or more employees, employment agencies, labor unions, and joint labor-management training programs. The regulations expressly provide that GINA protects job applicants and former employees in addition to active employees.

What is a “Genetic Test"

GINA defines “genetic test" as “an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations, or chromosomal changes. The regulations provide clarification regarding what constitutes a genetic test by providing specific examples, including tests which determine whether a person carries a specific gene for certain kinds of diseases; carrier screening for adults to determine the risk of certain conditions; amniocentesis and other evaluations used to determine the presence of genetic abnormalities in a fetus; newborn screening analysis to detect or indicate genotypes, mutations or chromosomal changes; and DNA testing that reveals family relationships (paternity tests) or determines the presence of genetic markers associated with ancestry. In addition, the regulations specify that certain tests, such as complete blood counts, cholesterol tests, and liver-function tests, do not constitute genetic tests.

Prohibition Against Acquiring Genetic Information

GINA makes it unlawful for an employer to request, require, or purchase genetic information with respect to an employee or a family member of the employee, with certain exceptions. GINA defines “genetic information?? with respect to an individual as “information about--(i) such individual’s genetic tests, (ii) the genetic tests of family members of such individual, and (iii) the manifestation of a disease or disorder in family members of such individual.†

A “request" of genetic information includes conducting an Internet search that would likely result in an employer obtaining genetic information, actively listening to third-party conversations or searching an individual’s personal effects with the purpose of obtaining genetic information, and requesting information about an individual’s current health status in a way that would likely result in an employer obtaining genetic information.

The regulations also provide clarification about the exceptions to the general prohibition. For example, the regulations elaborate on the “water cooler" exception which provides that an employer does not violate GINA when that employer inadvertently acquires genetic information. The regulations provide examples of situations where an employer would inadvertently acquire genetic information, including where a manager or supervisor learns genetic information by overhearing or during a casual conversation, learns genetic information without having solicited or sought the information, or learns genetic information from a social media platform, such as a social networking site, which the manager or supervisor had permission to access. In addition, the regulations state that if an employer acquires genetic information in response to a request for medical information, the acquisition of such information will not generally be considered inadvertent, unless the employer directs the individual or health care provider from whom it requested medical information not to provide such information. The regulations offer model language for an employer to use so that any receipt of genetic information will be deemed inadvertent.

Treatment of Genetic Information

GINA provides that an employer who possesses genetic information about an employee must maintain such information on separate forms and in separate medical files and must treat the information as a confidential medical record. The regulations provide that employers do not need to remove genetic information that was placed in an employee’s personnel file prior to November 21, 2009. The regulations also allow employers to keep genetic information in the same file in which it maintains confidential medical information subject to the Americans with Disabilities Act.

State Laws

The EEOC recognizes that over thirty states have laws that address genetic discrimination in employment. The regulations clarify that GINA does not preempt or limit the rights and protections of an individual under other state or local laws that provide equal or greater protection from discrimination based on genetic information.? Employers should be aware that Illinois has a genetic privacy law. The Illinois Genetic Information Privacy Act similarly prohibits employers from using genetic testing information for employment decisions and also prohibits employers from collecting genetic information.

Conclusion

To avoid liability, employers should become familiar with GINA and its requirements. Because there are many opportunities for employers to acquire an employee’s medical information, employers must be vigilant to ensure that they do not improperly acquire an employee’s genetic information and must also be certain that they do not make employment decisions based on the employee’s genetic information. Accordingly, employers should consult with counsel to develop and implement policies and train management in practices that will reduce the risk of a GINA violation.