EEOC Issues Final Genetic Information Nondiscrimination Act ("GINA") Regulations

President George W. Bush signed the Genetic Information Nondiscrimination Act (“GINA”) of 2008 into law on May 21, 2008. GINA’s employment provisions took effect on November 21, 2009. The Equal Employment Opportunity Commission (“EEOC”) published its final regulations implementing Title II of GINA on November 9, 2010. Generally, GINA prohibits employers from utilizing genetic information to make decisions regarding health insurance and employment, and it restricts both the acquisition and the disclosure of genetic information. GINA applies to public and private sector employers with 15 or more employees. It also covers applicants, employees, and, as the final regulations make clear, former employees. The EEOC’s final regulations provide some clarity regarding the definitions and application of GINA, but not all is good news for employers.

The final regulations address the following questions and topics:
  • What provisions related to family members are included in the final regulations, and how is family member defined?
  • Are employers liable even if they obtain genetic information by accident?
  • What is the employer’s liability when genetic information is obtained via the Internet, social media, third-party conversations and more?
  • What are the six exceptions that will not result in liability for an employer?
  • What language was added by the EEOC to the final regulations that provides a “safe harbor” for the employer?
  • What is required of the employer when an employee’s genetic information is lawfully obtained?
  • What are the exceptions to GINA’s restrictions on the disclosure of genetic information?
  • How does GINA define employment discrimination based on genetic information?

Author: Jon Secrest