On November 8, 2010, the EEOC issued final regulations interpreting the federal Genetic Information Non-Discrimination Act (GINA), which prohibits employers from requesting, requiring, or purchasing an individual's genetic information or using genetic information to make employment decisions. The new regulations (http://tinyurl.com/24x423u), which will take effect in approximately 60 days, clarify several of GINA's definitions and provide additional information regarding GINA's six exceptions to employer liability for obtaining genetic information. Among other things, the EEOC's final regulations:
- State that when an employer asks its company doctor to complete a medical exam of an employee or applicant, the employer must explicitly instruct the doctor not to ask for genetic information, including information about the individual's family history
- Set forth model language to be used by employers when requesting medical information from a third-party medical provider that warns the health care provider not to include data regarding genetic information with the response (This one is very important — make sure to update your forms or ask counsel about updating them)
- Require that the warning to health care providers regarding genetic information be included on medical certification forms used by employees to request leave for a serious health condition under both federal and state family and medical leave act laws
- Provide that employers are not liable for acquisition of genetic information that is inadvertent (e.g., overhearing employees' conversations or receiving genetic information from a medical provider after warning the provider not to include genetic information with the response)
- Require the employer to keep protected genetic information that it does receive in a confidential file separate from the employee's personnel file
- Allow employers to offer limited financial incentives for certain disease-management programs
The EEOC's final regulations interpreting GINA differ in many respects from the rule originally proposed by the EEOC in March 2009. Thus, employers would do well to familiarize themselves with the final regulations now before they take effect in January 2011.