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November 14, 2010

EEOC Issues Final Regulations Under The Genetic Information Nondiscrimination Act

On November 9, 2010, the Equal Employment Opportunity Commission (“EEOC”) issued final regulations under Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”).  The regulations provide employers with guidance to comply with GINA, which went into effect on November 21, 2009.  GINA prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and strictly limits the disclosure of genetic information.

Notably, the regulations clarify that employers which inadvertently obtain genetic information at the “water cooler,” via electronic media, including websites and social networking sites, or through routine requests for medical information, do not run afoul of GINA.  Employers should use the following model language in connection with all requests for employee medical information, including, but not limited to, requests for documentation to support requests for reasonable accommodations, FMLA leave and disability leave.

“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.”

If an employee or medical provider discloses genetic information to the employer in spite of that warning, the disclosure will be deemed inadvertent and not in violation of GINA.

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If you should have any questions regarding this issue, please contact us.