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February 10, 2011

EEOC Issues Final Regulations on the Genetic Information Nondisclosure Act

The Genetic Information Nondiscrimination Act of 2008 ("GINA") prohibits discrimination, harassment and retaliation by employers, employment agencies and labor organizations on the basis of genetic information. Title II of GINA, which took effect on November 21, 2009, prohibits the use, acquisition and disclosure of genetic information in the hiring, terminating and determining compensation of employees. Recently, the Equal Employment Opportunity Commission ("EEOC"), issued its regulations concerning Title II, which set forth and clarified employers' obligations with respect to the use of such sensitive information. The final rule took effect on January 11, 2011.

In that regard, the EEOC's regulations set forth definitions for certain terms used in Title II of GINA, including the rather ambiguous term "genetic information." Specifically, the term "genetic information" as it appears in Title II includes information obtained from genetic tests, the genetic tests of a family member, information derived from family medical history, information relating to a family member's past requests for, or receipt of genetic services or genetic information obtained from an embryo or fetus. The term "genetic test," as it relates to gathering or collecting genetic information, is defined as the "analysis of human DNA, RNA, chromosomes, proteins or metabolites that detects genotypes, mutations, or chromosal changes." The regulations also explicitly exclude certain tests from the term "genetic tests," including cholesterol tests, drugs and alcohol tests, and tests for infectious diseases that can be passed through the handling of food.

Moreover, the regulations clarify that, under Title II, employers are prohibited from requesting, requiring or purchasing genetic information of an individual or family member of an employee, unless the activity falls within certain exceptions. The most significant exception appears to be the "water-cooler" exception, which shields an employer from liability if it inadvertently learns the information through a casual conversation or by overhearing a conversation. Of course, this exception has limitations, the extent of which will undoubtedly be the subject of litigation for years to come. In that regard, employers should be careful not to engage or question the employee concerning genetic information discovered under the "water-cooler" exception.

Significantly, the final rule creates a safe harbor, which applies where an employer makes a lawful request for medical information and the employer directs the employee not to provide genetic information. The final rule includes sample safe harbor language by which employers can direct employees not to provide genetic information. The safe harbor language appears to be mandatory when an employer requests a health care professional to conduct an employment-related medical examination. The language reads as follows:

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.

Notably, this safe harbor applies to employers' lawful requests for documentation: (1) where an employee requests accommodation under the Americans with Disabilities Act ("ADA") (requests are lawful if the disability and/or need for accommodation is not obvious); (2) where an employee requests FMLA leave; or (3) to comply with FMLA return to work certification requirements.

The regulations also clarify an employer's duty of confidentiality in the context of employee personnel files. Specifically, the EEOC's final rule requires that employers review and remove all genetic information from personnel files prior to any disclosure of the files, including in response to discovery requests or subpoenas, unless the request is pursuant to a court order which explicitly states that genetic information must be disclosed.

In light of the recent issuance of these regulations, employers should review and revise applicable employment policies to ensure that they clearly prohibit discrimination, harassment and retaliation based on the disclosure of genetic information. Additionally, employers should train employees with access to genetic information to protect genetic information and, like other medical information, segregate it from personnel files. Finally, employers should include safe harbor language on all relevant forms and documents that one could interpret as requesting genetic information.

If you have any questions or require our assistance in reviewing your policies or conducting management training, please contact the Hiscock & Barclay lawyer with whom you normally work or any attorney in our Labor & Employment practice area.


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