The Genetic Information and Nondiscrimination Act (GINA) prohibits the use of genetic information when making employment decisions such as hiring, termination, pay, or conditions of employment. The new GINA regulations, which take effect on Jan. 20, 2011, also prohibit employers from requesting information about an individual’s current health status that would result in receiving genetic information.
There are some important exceptions spelled out in the new rules.
Employers can receive medical certifications used to determine the need for leave, fitness for duty, or reasonable accommodation under the Americans with Disabilities Act (ADA) as long as the employer directs the employee or the health care provider not to provide genetic information. A notice like the one that follows creates a “safe harbor” for the employer in case information such as family medical history is inadvertently included:
“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.”
When an employer conducts physical examinations after making a job offer or during the course of employment, such notice is mandatory.
Employers are also allowed to acquire family medical history and other genetic information as part of employer-provided health or genetic services, including voluntary wellness programs. Employers must only receive genetic information collected through such programs in aggregate (for all participating employees). Genetic information about individual employees must be provided to them only. Employers can offer incentives for completing health risk assessments that include questions about family medical history or other genetic information as long it is clear to employees that providing such information is voluntary and not required to receive the incentive.
Genetic information about applicants or employees must be treated with the same level of confidentiality as all medical information: it must be kept separate from the employee’s general personnel file. It can be kept in the same file as medical information subject to ADA.
The EEOC’s Web Site provides more information on GINA regulations (see Background Information for EEOC Final Rule on Title II of the Genetic Information Nondiscrimination Act of 2008 
).
—Federal Register, 29 CFR Part 1635, Nov. 9, 2010.
—“EEOC Issues Final GINA Regulations,” by Allen Smith, Society for Human Resource Management Web Site, Nov. 9, 2010.
