At long last, the EEOC has issued final regulations to implement the Genetic Information Non-Discrimination Act of 2008 ("GINA"). These regulations take effect today, January 10, 2011.
GINA applies to employers with 15 or more employees. Prohibiting the acquisition, use and disclosure of genetic information, GINA also impacts more routine matters, such as how employers ask for medical information relating to employees and their family members.
Under GINA, genetic information includes Information about an individual’s genetic tests; information about the genetic tests of a family member; Family medical history; requests for, and receipt of, genetic services by an individual or a family member (genetic services are genetic tests, genetic counseling and genetic education); and genetic information about a fetus carried by an individual or family member, or about an embryo legally held by the individual or family member using assisted reproductive technology.
Employer procedures are affected in two important ways. First, employers who use company physicians must give notice to those physicians prohibiting them from collecting genetic information about employees. Second, the final regulations create a "safe harbor provision" that protects employers from violating the law if they accidentally acquire protected information in connection with a health-related inquiry, so long as the employer notifies the employee/employee's health care provider that such information should not be provided to the employer. The regulations provide specific language for employers to use when giving the "safe harbor" notice. This language should be included in employer handbooks and separately provided to employees when they are required to provide medical certification.
In a rare show of interagency awareness, EEOC created an exception that will allow employers to require family medical history information in connection with an employee’s request to take time off to care for a family member with a serious health condition under FMLA or similar law, or employer policy. EEOC’s safe harbor language does not address this exception, which means that employers will need to revise the safe harbor language in connection with a lawful family leave request.
If you have any questions, please contact Melissa Jones at 410-752-9765 or email. Further information is also available here.