On November 9, 2010, the Equal Employment Opportunity Commission (EEOC) issued its final regulations under Title II of the Genetic Information Non-Discrimination Act (Act or GINA). Title II of the Act, which took effect November 21, 2009, prohibits employers from discriminating based upon genetic information. Specifically, GINA bars the use of genetic information in employment decision-making, restricts deliberate acquisition of genetic information, requires that genetic information be maintained as a confidential medical record, and places strict limits on disclosure of genetic information.

The final regulations clarify definitions and provide several examples to aid employers in complying with the Act. For example:

  • One of the concerns raised by the legislation when it was passed was that employers could face liability as a result of inadvertently acquiring genetic information through normal practices and conversations with employees. The final regulations address this concern by specifying exceptions to the general prohibition against acquiring genetic information;
  • Under the statute, an individual’s or family member’s age or gender is not considered genetic information. The final rule also excludes information about race and ethnicity that is not derived from a genetic test; and
  • The final rule requires new notices to be included in requests for medical information, such as FMLA certifications. (For more on this new requirement, visit our FMLA Insights blog.)

The final regulations will take effect January 10, 2011. We will provide a more detailed summary of the new rules in the near future.