EEOC Issues Final Regulations on the Genetic Information Nondiscrimination Act

By Laura Rashedi and Catherine H. Thompson

On November 9, 2010, the Equal Employment Opportunity Commission ("EEOC") published final regulations implementing Title II of the Genetic Information Nondiscrimination Act of 2008 ("GINA"). A summary of some of the provisions of these regulations follows below.

Generally, Title II of GINA protects applicants for employment, current employees, former employees, apprentices, trainees and labor organization members against discrimination based on their genetic information. The regulations issued by the EEOC are intended to:

1. Prohibit the use of genetic information in employment decisions;
2. Restrict employers from requesting, requiring or purchasing genetic information;
3. Require that genetic information be maintained as a confidential medical record and place strict limits on the disclosure of genetic information; and
4. Provide remedies for individuals whose genetic information is acquired, used or disclosed in violation of Title II of GINA.

The recently issued regulations apply to employers with 15 or more employees (as well as other covered entities) and prohibit them from discriminating against an individual with regard to hiring, discharging, compensating as well as establishing the terms, conditions and privileges of employment as a result of the genetic information of that individual. They also prohibit covered entities from retaliating against individuals because they opposed discrimination, filed a charge of discrimination or assisted in an investigation regarding allegations of discrimination.

In addition, the regulations prevent a covered entity from requesting, requiring or purchasing genetic information of an individual or an individual's family member which includes, for example, making any request for information about the health status of an individual that may result in obtaining genetic information; conducting an Internet search that may result in obtaining genetic information; and actively listening to third-party conversations or searching an individual's personal effects for the purpose of obtaining genetic information.

The EEOC regulations provide certain exceptions to the general prohibition against requesting, requiring or purchasing genetic information. If a covered entity requests or obtains genetic information inadvertently, the general prohibition does not apply. For example, if a covered entity makes a lawful request for medical information, and directs the individual or health care provider to refrain from providing genetic information, the acquisition of genetic information will be considered to be inadvertent. The general prohibition also does not apply if:

• A covered entity provides health or genetic services to individuals and the individuals voluntarily provide genetic information;
• If a covered entity requests family medical history to comply with certifications under the Family and Medical Leave Act of 1993 ("FMLA") or Americans with Disabilities Act; or
• If a covered entity acquires genetic information from documents that are commercially and publicly available.

If a covered entity possesses genetic information in writing, the information must be treated as a confidential medical record that is separate from an individual's personnel file. Genetic information may only be disclosed:

• To the individual to whom the genetic information pertains upon a written request;
• To an occupational or other health researcher (as provided in the regulations);
• In support of an employee's compliance with the FMLA;
• In response to a court order;
• To a federal, state or local public health agency with regard to information about a contagious disease that presents an imminent hazard of death or a life-threatening illness (notice must be provided to the individual); and
• To government officials investigating compliance with the EEOC regulations.

The regulations further require employers to post a notice pertaining to these non-discrimination provisions and the procedures for filing a complaint. With the new EEOC regulations taking effect on January 10, 2011, employers should review and update their current policies, notices and employee handbooks to reflect the prohibitions contained in these regulations and to provide for protection of an individual's genetic information.

Schiff Hardin's Labor and Employment Practice Group has particular expertise in advising clients on and in crafting such policies. For more information on the details of these regulations, or, if you have any questions about your current policies or the way in which you might revise those policies, please contact any attorney in Schiff Hardin's Labor and Employment Group.

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