With little fanfare and seemingly even less reaction from employers, Title II of the Genetic Information Nondiscrimination Act (GINA) took effect on November 21, 2009. Title II generally prohibits employers, employment agencies and unions from collecting employees’ or applicants’ genetic information – which specifically includes family medical history. The law also precludes any type of genetic testing of employees or applicants.

The procedures and remedies associated with GINA parallel those of Title VII, and prohibit discrimination in hiring, training and placement of individuals because of their genetic information. GINA’s provisions related to the treatment and non-disclosure of genetic information are taken from the Americans with Disabilities Act’s procedures regarding the confidentiality of medical information. GINA generally precludes employers from obtaining and sharing medical information that falls within the definition of genetic information.

While GINA is now in effect, the Equal Employment Opportunity Commission (EEOC) has yet to issue a final rule on the new law (which will provide direction regarding enforcement). The proposed regulations are reportedly in the final stages of review, but there has been no word as to when the White House Office of Management and Budget (OMB) will approve them. Once approved, the regulations will face a final vote by the EEOC commissioners, and a subsequent final publication in the Federal Register.

Employers’ preparation for that final approval should include updating workplace posters (the EEOC already has issued a revised version of its anti-discrimination poster that includes GINA’s prohibitions), revising handbook and policy manuals, and training supervisors that genetic bias is now prohibited. That training should include the warning that companies may be held liable for retaliation under GINA if they take adverse action against an employee or applicant whose genetic information has been disclosed to the company, even if that disclosure was made through an informal communication.  

Note: This article was published in the November/December 2009 issue of The Employment Law Authority.

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