On Nov. 9, 2010, the EEOC published its final regulations under Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) – 18 months after the EEOC published its proposed regulations for public comment. The final regulations will take effect on Jan. 10, 2011.
GINA is designed to prohibit the improper use of genetic information. Title II of GINA prohibits employers from using individuals’ genetic information when making hiring, firing, placement or promotion decisions (Title I addresses group health plans and health insurers). Genetic information includes information obtained from the genetic tests of an individual or a family member, or an individual’s family medical history. While GINA generally bars employers from obtaining the genetic information of employees or applicants for employment, there are some exceptions to this general rule. For example, employers do not violate the law when they inadvertently acquire an employee’s genetic information via casual “water cooler” conversations.
The final regulations contain several important changes from the proposed regulations. While the proposed regulations stated that an employer violated GINA if it engaged in the “deliberate acquisition” of genetic information, this language has now been deleted as it suggested that an employer did not violate the law unless it had a specific intent to acquire the information. The final regulations state that an employer can violate the law even without a specific intent to acquire such information if it engages in an activity that presents a “heightened risk” of acquiring it.
The final regulations add a “safe harbor” provision for employers who inadvertently obtain genetic information in the course of making lawful requests for medical information under the ADA or the FMLA. To take advantage of this safe harbor, the employer must warn anyone from whom it seeks medical information not to provide genetic information. This warning should be included in correspondence sent to medical providers.
The final regulations make clear that the “water cooler” exception not only applies to information regarding family medical history, but also to information regarding the results of genetic tests. For example, an employer is protected if it inadvertently obtains, through casual conversation, information that an employee’s family member has breast cancer. Similarly, the employer is also protected if it inadvertently discovers, through casual conversation, that the employee’s family member had a genetic test which reveals that she has an increased risk for breast cancer.
The new regulations also clarify prior questions regarding the maintenance of genetic information. Now, it is clear that when employers maintain employees’ genetic information, they may keep this information in the same confidential medical files maintained under the ADA.
From a practical standpoint, employers should review their EEO policies and practices to ensure that they are not inappropriately obtaining genetic information or family medical history. In particular, employers should revise their requests for medical information under the ADA and FMLA to ensure that these documents contain the warnings required by the “safe harbor” provisions of the final regulations.