Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits genetic information discrimination in employment, took effect on November 21, 2009. Nearly a year later, the EEOC published the final GINA regulations.
How does this law affect employers? I’ll break it down for you after the jump.
- What is Title II of GINA? According to the EEOC’s “Background Information for EEOC Final Rule on Title II of the Genetic Information Nondiscrimination Act of 2008”:
Title II of GINA prohibits the use of genetic information in making
decisions related to any terms, conditions, or privileges of employment
(e.g., hiring, firing, and opportunities for advancement); restricts
employers and other entities covered by Title II from requesting,
requiring, or purchasing genetic information, with limited exceptions;
generally requires covered entities to keep any genetic information they have about applicants or employees confidential; and prohibits
- What exactly is “genetic information”? Examples include:
- Information about an individual’s genetic tests
- Information about the genetic tests of a family member
- family medical history
- Who must comply with Title II of GINA? Among others, any private employer with at least 15 employees.
- Are there any situations in which a covered entity could use genetic information to make employment decisions? No. The prohibition on the use of genetic information in employment decision-making is absolute.
- Can we continue to perform background checks on applicants using Google, Facebook, and other electronic resources? Yes, employers may obtain information about applicants from sources that are commercially and publicly available, including electronic sources. If an employer inadvertently obtains genetic information via, for example, a Google search, the employer does not violate GINA.
- How can an employer lawfully request health-related information from any employee without violating GINA? Very carefully. The regulations suggest language such as the following:
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 an individual or family
member of the individual, except as specifically allowed by this law. 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.
For more information on GINA do’s and don’ts, check out this resource from the EEOC. Also, here are some great GINA posts from other labor and employment law bloggers:
- Delaware Labor and Employment Law Blog: “EEOC Issues Final GINA Regulations for Employers“
- FMLA Insights: “GINA Rules Require New Disclosures In Requests For FMLA Certification“
- DC Employment Law Update: “EEOC Issues Final GINA Regulations“