EEOC Issues Final Rule for the Genetic Information Nondiscrimination Act (GINA)

The EEOC issued its final rule implementing Title II of the Genetic Information Nondiscrimination Act (“GINA”) and provided background information regarding the new regulations, which shall take effect on January 10, 2011. GINA generally restricts employers and other covered entities from deliberate acquisition of genetic information, prohibits use of genetic information in employment decision-making, and strictly limits disclosure of genetic information.

Highlights from the EEOC regulations include:

• “Genetic Information” is broadly defined and includes information about the genetic tests of an individual or his family members, as well as information regarding an individual’s family medical history. The regulations also provide examples of tests that qualify as “genetic tests” (e.g. a test to determine whether an individual has the genetic variants associated with a predisposition to breast cancer) and tests that do not qualify (e.g. cholesterol and HIV tests).
• The EEOC urges employers to include specific language in medical exam/inquiry forms, such as those accompanying pre-offer and post-offer medical exams and fitness-for-duty exams to help protect against unlawful disclosures. By using this “safe harbor” language, employers can shield themselves from liability under GINA should they receive protected genetic information in response to these inquiries.

• With limited exceptions, employers may not “request, require or purchase genetic information of an individual or family member of the individual.” A “request” includes: (1) internet searches that are likely to result in the employer obtaining genetic information; (2) making requests for information about an individual’s current health status in a manner that will likely result in the disclosure of genetic information; and (3) actively and intentionally listening to third party conversations or searching a person’s personal effects for the purpose of obtaining genetic information. Exceptions to this rule include:
  • the “water cooler” exception, whereby an employer has obtained genetic information inadvertently such as by overhearing a conversation involving genetic information “at the water cooler;”
  • receiving a response to an ordinary expression of concern about an employee’s health that includes genetic information; and
  • obtaining genetic information from health risk assessments that employees must complete in connection with voluntary employee wellness programs for which they receive a financial incentive, so long as the assessment specifically identifies which questions request genetic information and plainly states that responding to those questions is optional and that that the financial incentive will be provided regardless of whether employees answer those specific questions.
• Employers are not required to remove genetic information from personnel files where such information was placed in the files before November 21, 2009. Employers may maintain genetic information about an employee in the same file in which it maintains confidential medical information that is subject to the Americans with Disabilities Act. This information should be maintained separately from employee personnel files and should be treated as confidential.

The same remedies available to employees under Title VII of the Civil Rights Act of 1964 are available for employer violations of Title II of GINA. Employers should also be aware that GINA does not preempt state or local laws that provide equal or greater protections than GINA from genetic discrimination or from improper access or disclosure of genetic information. Therefore, employers should also obtain legal advice regarding the relevant state law(s) to determine whether they are subject to stricter requirements.