GINA, the Genetic Information and Nondiscrimination Act, took effect nearly a year ago. After several delays, the EEOC has published final regulations that interpret and implement the nondiscrimination provisions of the Act, which apply to employers. Those employers who have been paying attention to GINA and its requirements won’t be surprised at the regulations, as they are substantially similar to the proposed regulations. They do , however, offer specific examples applicable to employers.
I’ll surely have more detailed commentary after I’ve reviewed the regs in full; but, until then, here are a few of the highlights:
The regs offer employers specific language for use in medical-exam and -inquiry forms:
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.
The purpose of this “boilerplate” language? It’s an insurance policy, of sorts. So long as the employer uses this language, it will not be held to have violated GINA if the medical provider discloses genetic information in spite of the warning.
I’ve posted before on some of the potential GINA-specific risks of social-media “background checks” conducted by employers. The regs may alleviate some of these concerns. The final regulations provide that, in general, an employer who obtains protected genetic information inadvertently probably does not violate the statute. For example, if the information is learned via a Google search performed using the employee or applicant’s name, the receipt of the information is considered inadvertent.
The regs also provide that genetic information learned from an employee’s Facebook or other social-networking site will be deemed inadvertently obtained, provided you have permission to access the information on that site (i.e., if the employee or applicant has accepted you as a Facebook friend).
The final GINA regulations (29 CFR Part 1635) take effect on January 9, 2011. We’ll surely have more comments in the meantime but, if you need to get up to speed on this important law affecting employers, see these previous posts:
- Do Bald Employees Finally Have A Cause of Action Under GINA?
- Does GINA Provide a Cause of Action for Overweight (or Overly Attractive) Employees?
- Still No GINA Regs, But New Website on the Basics
- GINA and Social Media
- The GINA’s Out of the Bottle–And It’s a New Weapon in the Work-Family Arsenal
- GINA’s Application to Caregiver Scenarios
- GINA’s Implication on Employers: Pink Ribbons and Yellow Bracelets
- GINA Presentation to Delaware SHRM
- Genetic Information Nondiscrimination Act Update
- DOL Publishes FAQs on GINA