POSTED BY KAREN M. BUESING AND SCOTT T. SILVERMAN ON DECEMBER 14, 2010
Yet another law for employers to worry about!
The U.S. Equal Employment Opportunity Commission (EEOC) has issued final regulations implementing the employment provisions of the Genetic Information Nondiscrimination Act (GINA). GINA applies to all employers covered by Title VII and generally prohibits discrimination and harassment in the terms and conditions of employment, including health benefits, on the basis of genetic information, as well as retaliation for opposing, or making a charge of, such discrimination or harassment. It also restricts employers from acquiring, requesting, requiring or purchasing genetic information, with six limited exceptions. It also limits disclosure of genetic information, also with six limited exceptions, and allows employers to keep genetic information in the same confidential file as medical information under the ADA.
Genetic information includes information about individuals' genetic tests and the tests of their family members; family medical history; requests for and receipt of genetic services by an individual or a family member; and genetic information about a fetus carried by an individual or family member or of an embryo legally held by the individual or family member using assisted reproductive technology. However, GINA would not come into play where the employee has a current condition that has a genetic basis, such as cancer, because GINA is concerned about discrimination occurring due to a perceived disposition to becoming ill in the future. Of course, the ADA may still be applicable in such a situation.
The final regulations provide examples of what are and are not genetic tests; more fully explain GINA's prohibition against requesting, requiring, or purchasing genetic information; provide model language employers can use when requesting medical information from employees to avoid acquiring genetic information; and describe how GINA applies to genetic information obtained via electronic media, including websites and social networking sites.
Employers are strongly advised to review these new regulations and work with counsel to update their policies to incorporate these new regulations.