On November 9, 2010 the Equal Employment Opportunity Commission (EEOC) issued its final rule interpreting the Genetic Information Nondiscrimination Act of 2008 (GINA). GINA was enacted to protect job applicants and current and former employees from discrimination based on their genetic information and the genetic information of their family members. The regulations provide some helpful guidance as to what constitutes "genetic information," and how employers can handle medical-related issues without running afoul of the law.

GINA’s Prohibitions

Under GINA, it is unlawful for an employer to discriminate against an individual on the basis of genetic information in regard to hiring, discharge, compensation, or the terms, conditions or privileges of employment. GINA also prohibits employers from limiting, segregating or classifying employees based on genetic information unless otherwise required by law. It is also unlawful for employers to retaliate against any individual because the individual has opposed any act or practice made unlawful by the regulations, or because such individual made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under GINA. Finally, GINA prohibits employers from requesting, requiring or purchasing genetic information, and strictly limits employers from disclosing genetic information.

What Is "Genetic Information"?

Genetic information includes information about:

  • an individual’s genetic tests and the genetic tests of that individual’s family members;
  • the manifestation of a disease or disorder in family members (family medical history);
  • an individual’s request for or receipt of genetic services or participation in clinical research that includes genetic services; or
  • the genetic details of a fetus carried by an individual or by a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.

The regulations define "family member" broadly to include dependents as the result of marriage, birth, adoption or placement for adoption, and other relatives ranging from parents, siblings and children all the way to great-great grandparents, great-great grandchildren and first cousins once-removed (i.e., the child of the individual’s first cousin).

What If an Employer Inadvertently Obtains Genetic Information?

Inadvertently obtaining genetic information is not a violation of GINA, such as overhearing conversations, engaging in casual conversations not intended to elicit genetic information or an employee providing such information without having been solicited.

Whenever an employer is requesting medical information for purposes allowed by federal, state or local law, the employer must give a disclosure that it does not want genetic information. The regulations provide suggested language for the disclosure. If an employer receives genetic information in response to a request and it has not provided this disclosure, only in limited circumstances can the employer argue that the receipt of genetic information was inadvertent.

When Else Can an Employer Obtain Genetic Information?

Although seeking genetic information is generally prohibited under GINA, it is allowed in instances where:

  • required by federal genetic monitoring regulations, such as the Occupational Safety and Health Act, Federal Mine Safety and Health Act, and Atomic Energy Act;
  • the request complies with the certification provisions of the FMLA, other state or local leave laws, or pursuant to a policy that permits the use of leave to care for a sick family member;
  • the employer offers health or genetic services as part of a voluntary wellness program; or
  • genetic information was obtained through documents that are commercially and publically available for review and purchase or through electronic media.

How Should an Employer Maintain Records That Contain Genetic Information?

Genetic information must be maintained as a confidential medical record, separate and apart from an employee’s personnel file, and can only be disclosed in a few, limited circumstances.

What Are the Penalties For a Violation of GINA?

GINA also provides remedies for individuals whose genetic information is acquired, used or disclosed in violation of GINA including compensatory and punitive damages, attorneys’ fees, injunctive relief and other equitable remedies.

As genetic testing becomes more commonplace, it is essential for employers to train supervisors and managers to avoid eliciting genetic information, and on how to treat genetic information if it is disclosed. Employers should also review their policies and any documents that request medical information to ensure that they are compliant with the new regulations.