EEOC Issues Final Regulations Interpreting Genetic Information Nondiscrimination Act
Last November, the Genetic Information Nondiscrimination Act “GINA” became law. GINA provides a general ban on employers’ obtaining genetic information about employees or job applicants, including the inadvertent acquisition of the information for use in employment decisions. Almost a full year after GINA became effective, the EEOC has issued final regulations interpreting its application.
The EEOC final regulations are intended to provide guidance regarding many issues currently existing in the work place as well as anticipated issues regarding genetic data.
Significant provisions of GINA include –
• Family medical history questions no longer allowed. Employers are prohibited from questioning employees/new hires during “fitness for duty” or other post-job offer medical exams regarding family medical history.
• Genetic information allowed for treatment only. Employers are not allowed to use genetic information in making employment decisions, however they may inquire about genetic information for treatment purposes.
• Protected genetic information must be kept separate. Genetic information may not be included in an employee’s personnel file. Similar to provisions in the Americans with Disability Act (ADA), it is critical to maintain confidentiality regarding genetic information.
• Employers cannot search internet or social networking sites as a means to discover an individuals’ genetic information. Employers may not be liable for obtaining genetic information inadvertently, such as through casual conversation or overhearing employees’ conversations, however employers may not search the internet in order to obtain prohibited genetic data.
• Covered acts include both harassment and retaliation based on genetic material.
