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GINA: The EEOC's Final Regulations Go In Effect

By Mitchell Kunert

Although it has been a couple years since Congress first enacted the Genetic Information Nondiscrimination Act (GINA), 42 U.S.C. § 2000ff et seq., the EEOC's final regulations under GINA take effect on January 10, 2011. These regulations clarify a number of GINA's employment related requirements and prohibitions.

GINA applies to all employers who are covered by Title VII of the Civil Rights Act of 1964. GINA requires employers to treat all genetic information as confidential medical information and restricts the disclosure of that information. GINA restricts an employer's ability to request, require, or purchase genetic information and prohibits the use of genetic information in employment decisions. GINA also prohibits retaliation by employers when an individual opposes any act made unlawful by GINA, files a charge of discrimination or assists another in doing so, or gives testimony in connection with a charge.

Genetic information is defined under GINA and the final regulations to include information from genetic tests, the genetic tests of family members and family medical history. Genetic information does not include information about race and ethnicity that is not derived from a genetic test and information about an individual's or family member's age or gender. A genetic test is defined as the analysis of human DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or chromosomal changes.

Significantly, under the final regulations, the definition of "employee" not only includes present employees, but applicants and former employees as well. An example of a GINA violation would be a situation in which a former employer disclosed to a prospective employer an individual's genetic information.

The regulations also address concerns by human resource personnel regarding the acquisition of genetic information through a lawful request for an employee's medical information. In response to such concerns, the regulations include a "safe harbor" provision, which provides that any receipt of genetic information in response to a lawful request for medical information will be deemed inadvertent and not in violation of GINA if the request contained such a warning. The regulations contain the following language that a covered entity may use to provide such notice:

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.

Employers should be aware of GINA and the scope of the EEOC's final regulations. For more detailed information regarding GINA and these regulations, click here for a link the EEOC's website.

Although it has been a couple years since Congress first enacted the Genetic Information Nondiscrimination Act ("GINA"), 42 U.S.C. § 2000ff et seq., in 2008, the EEOC's final regulations under GINA take effect on January 10, 2011. These regulations clarify a number of GINA's employment related requirements and prohibitions.

GINA applies to all employers who are covered by Title VII of the Civil Rights Act of 1964. GINA requires employers to treat all genetic information as confidential medical information and restricts the disclosure of that information. GINA restricts an employer's ability to request, require, or purchase genetic information and prohibits the use of genetic information in employment decisions. GINA also prohibits retaliation by employers where an individual opposes any act made unlawful by GINA, files a charge of discrimination or assists another in doing so, or gives testimony in connection with a charge.

Genetic information is defined under GINA and the final regulations to include information from genetic tests, the genetic tests of family members and family medical history. Genetic information does not include information about race and ethnicity that is not derived from a genetic test and information about an individual's or family member's age or gender. A genetic test is defined as the analysis of human DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or chromosomal changes.

Significantly, under the final regulations, the definition of "employee" not only includes present employees, but applicants and former employees as well. An example of a GINA violation would be a situation in which a former employer disclosed to a prospective employer an individual's genetic information.

The regulations also address concerns by human resource personnel regarding the acquisition of genetic information through a lawful request for an employee's medical information. In response, the regulations include a "safe harbor" provision, which provides that any receipt of genetic information in response to a lawful request for medical information will be deemed inadvertent and not in violation of GINA if the request contained such a warning. The regulations contain the following language that a covered entity may use to provide such notice:

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.

Employers should be aware of GINA and the scope of the EEOC's final regulations. For more detailed information regarding GINA and these regulations, click here for a link to the EEOC's website.



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