Labor & Employment Law Update: EEOC Issues Final GINA Regulations

November 18, 2010

Publication| Labor & Employment

The Equal Employment Opportunity Commission (EEOC) has issued final regulations interpreting the Genetic Information Nondiscrimination Act (GINA), which will become effective on January 10, 2011. The employment provisions of GINA (covered in Title II of the law) generally (1) prohibit employers from discriminating against employees and applicants based on genetic information; (2) regulate employers’ collection of genetic information; and (3) require employers to keep genetic information confidential.

A few highlights include:
Safe Harbor for Medical Inquiries. Significantly, the regulations provide that an employer, when requesting medical information from a healthcare provider, needs to direct an individual and/or healthcare provider not to provide genetic information. If the directive is ignored, the employer may assert that its receipt of genetic information was inadvertent. In this regard, the final rule includes the language that employers may use in their otherwise lawful requests for medical information. By using this “safe harbor” language, employers may avoid liability under GINA should they nevertheless receive protected genetic information in response to those inquiries.

The “safe harbor” language is:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

Online Searches. An employer may obtain genetic information of an employee without violating the law if the information is acquired inadvertently or is publicly or commercially available (for example, from an article in a newspaper). However, the final regulations clarify that these exceptions do not apply if the employer acts deliberately, such as by searching online for genetic information.

Wellness Programs. GINA also allows employers to obtain genetic information in connection with employer-provided health or genetic services, including wellness programs under certain circumstances. To be within this exception, the employee participating in the program must provide prior knowing, voluntary, and written authorization. Additionally, the employee’s genetic information must be provided only to the employee and the licensed healthcare professionals involved in providing such services. If an employer offers financial inducements to employees for participating in a wellness program, the inducement must be made available regardless of whether or not the participant answers questions regarding genetic information.

Personnel Files. Employers must maintain genetic information separately from personnel files and treat such information as a confidential medical record. The final regulations clarify that genetic information placed in employee personnel files before the effective date of GINA (November 21, 2009) does not have to be removed. The employer may not disclose genetic information, except in certain limited circumstances, such as when accommodating an employee’s request for medical leave.

The final regulations can be found here: GINA.

If you would like assistance in connection with GINA compliance, please contact a Richards, Layton & Finger attorney.

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