• EEOC Issues Final GINA Regulations
  • November 23, 2010 | Authors: Wilhelm L. Gruszecki; Kari Knight Stevens
  • Law Firm: Blank Rome LLP - Philadelphia Office
  • On November 9, 2010, the EEOC issued final regulations implementing the employment provisions of Title II of the Genetic Information Non-Discrimination Act of 2008 (GINA). These regulations become effective on January 1, 2011.

    GINA took effect on November 21, 2009 and applies to private employers and state and local government employers with 15 or more employees.  GINA prohibits covered employers from using genetic information to make decisions related to any terms, conditions or privileges of employment (e.g., employee benefits).  GINA also prohibits covered employers from requesting, requiring or purchasing “genetic information” of an individual or that individual’s family member.  Genetic information includes:

    • An individual’s genetic tests and the tests of the individual’s 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.

    The final regulations clarify that a covered employer may violate GINA without having the specific intent to acquire genetic information and also address six specified exceptions under which a covered employer may acquire genetic information:

    • Wherethe information is acquired inadvertently;
    • As part of health or genetic services (including a wellness program) that a covered entity provideson a voluntary basis;
    • In the form of family medical history to comply with the certification requirements of the Family and Medical Leave Act, state or local leave laws, or certain employer leave policies;
    • From sources that are commercially and publicly available, such as newspapers, books, magazines, and even electronic sources;
    • As part of genetic monitoring that is either required by law or provided on a voluntary basis; and
    • By employers who conduct DNA testing for law enforcement purposes as a forensic lab, or for human remains identification.

    In addition to elaborating on each of these exceptions, the final regulations:                                                              

    • Provide examples of genetic tests;
    • Provide model language covered entities may use when requesting medical information from employees to avoid acquiring genetic information in violation of GINA;
    • Describe how GINA applies to genetic information obtained via electronic media, including web sites and social networking sites; and
    • Elaborate on GINA’s requirement that records containing genetic information be maintained in separate, confidential medical files.

    The EEOC has also published two question-and-answer documents on the final GINA regulations, which can be accessed at:  http://www.eeoc.gov/laws/regulations/gina-background.cfm and http://www.eeoc.gov/laws/regulations/gina&under;qanda&under;smallbus.cfm

    Comment:  Employers subject to GINA should take inventory of their general employment practices and practices relating to health assessments to ensure that they are structured to conform to the requirements imposed by GINA.  Employers who sponsor wellness programs should identify health risk assessment questions that seek genetic information and make clear that answers to such questions are voluntary and not required in order to receive a financial incentive, if such financial incentive is available.