The Equal Employment Opportunity Commission ("EEOC") has issued regulations related to the Genetic Information Non-Discrimination Act ("GINA"), which will take effect on January 10, 2011. GINA was signed into law by President Obama on November 21, 2009 as a measure to prohibit discrimination, harassment and retaliation based on genetic information of employees (and employees' family members), and restrict an employer's acquisition and disclosure of such information.
Title II of GINA generally prohibits the use of genetic information in employment by restricting employers with 15 or more employees (as well as employment agencies, labor unions, and joint labor-management training programs), from requesting, requiring, or purchasing genetic information, and strictly limits the disclosure thereof. Like other federal anti-discrimination laws, employees can file a Charge with the EEOC within 180 days of the alleged violation of GINA, or 300 days if a local or state agency enforces/prohibits discrimination on the same basis.
The prohibition on the use of genetic information is absolute. However, there are narrow exceptions to the rule precluding an employer from obtaining genetic information, such as: 1) the inadvertent request for genetic information; 2) a request in the context of a voluntary wellness program with prior voluntary, knowing, and written authorization; 3) a request for family medical history in order to comply with the Family Medical Leave Act (or state or local leave laws); 4) when such information is acquired from publicly available documents; 5) as part of a genetic monitoring that is voluntary or required by law; and 6) by employers that conduct DNA testing for law enforcement purposes. Importantly, inadvertent discrimination may occur during casual conversation, overhearing "water-cooler" talk, or through email or social media. If information is inadvertently learned, employers should avoid any follow-up, as that could be considered intentional requests/disclosures, which is prohibited conduct. Notably, GINA does not apply to an employee who has already been diagnosed, for example, with breast cancer, or some other condition even if it has a genetic component; those employees instead may fall under the protection of the Americans with Disabilities Act ("ADA").
The EEOC's regulations further require that if any genetic information is learned about an employee or applicant, it must be kept confidential and in a separate file from general personnel information. However, it may be kept in the same file as medical information subject to the ADA. Information obtained prior to the November 21, 2009 enactment can remain in the personnel file. There are, of course, exceptions to the requirement of confidentiality, such that, genetic information may be disclosed: 1) subject to a written request when the information requested pertains directly to an occupational health or other health researcher in compliance with 45 CFR part 46; 2) in direct response to a court order; 3) as necessary for government investigation of Title II GINA compliance; 4) in accordance with the certification process for federal, state or local medical leave laws; and, 5) to a public health agency with regard to a contagious disease or disorder that presents an eminent threat.
In order to protect against disclosure, employers are urged to include explicit language in medical exam/inquiry forms such as, fitness for duty certifications and requests made in conjunction with an employee's request for a reasonable accommodation, indicating that genetic information should not be disclosed to the employer. The EEOC has drafted model "safe harbor" language, but alternative language may be used as long as the purpose and effect is the same. Employers are also strongly encouraged to revise handbooks and anti-discrimination policies to reflect this newly recognized protected category and ensure that the most up-to-date mandatory EEOC "Equal Employment is the Law" poster has been conspicuously displayed, as it has been revised to include information about GINA (as well as other changes to the federal employment discrimination laws). As a final precautionary measure, employers should revise and supplement their training of managers and human resource professionals to include discussions about the new law, potential exposure and protecting against unlawful disclosure and use of genetic information of employees.