The The employment provisions in Title II of the Genetic Information Nondiscrimination Act (GINA), became effective November 21, 2009. Final regulations are expected to issue in the near future. Seyfarth Shaw submitted comments to the proposed regulations, which are available at: http://www.regulations.gov/search/Regs/home.html#documentDetail?R=0900006480970cf1.

GINA regulates the acquisition, treatment and disclosure of genetic information, and prohibits employment discrimination based on genetic information. Preliminarily, GINA broadly defines “genetic information” to include information about the genetic testing of, as well as the manifestation of a disease or disorder in, an individual and his or her family members (including dependents, or first, second, third or fourth-degree relative). GINA may be distinguished from the Americans With Disabilities Act, as amended, as GINA regulates conditions that have not yet manifested (i.e., asymptomatic conditions).

GINA prohibits employers from collecting genetic information. However, there are a few important exceptions to this rule. For example, GINA includes a “water-cooler” exception protecting employers where genetic information is inadvertently acquired. This exception would apply where a supervisor unintentionally overhears a conversation between employees where genetic information is disclosed. GINA also permits genetic information to be collected in various other circumstances, such as where: an employer offers genetic services through a voluntary wellness program; genetic information is disclosed in the course of complying with the Family Medical Leave Act or similar state laws; and where an employer purchases commercially available documents containing genetic information. GINA also requires employers to treat genetic information as confidential. Genetic information may not be maintained in personnel files and only may be disclosed under limited circumstances, such as in response to a court order.

In addition, GINA forbids employers from considering genetic information in making employment decisions. For example, GINA prevents an employer from refusing to hire an applicant based on its belief that she is likely to develop breast cancer because it knows her mother had that condition. The procedures and remedies of Title VII of the Civil Rights Act of 1964 apply to claims under GINA, although GINA does not presently provide a cause of action for disparate impact claims. Notably, many states already have enacted statutes that are similar to GINA, and GINA does not preempt those statutes.

Employers must promptly get into compliance with GINA. In the immediate future, employers should: (i) post the updated “Equal Employment Opportunity It’s the Law” poster referencing GINA’s prohibitions; (ii) update anti-discrimination policies; (iii) segregate genetic information from personnel files; and (iv) omit genetic information (again, this includes family medical history) from post-offer, pre-employment healthy history and other employment-related examinations.