If you have 15 or more employees, you better find out! On November 21, 2009, the Genetic Information Nondiscrimination Act goes into effect. GINA, which prohibits the use of genetic information in employment decisions, is intended to encourage individuals to take advantage of genetic testing without fear that the information will be used against them. GINA regulates the acquisition and use of genetic information in the following ways:

  • Prohibits the use of genetic information in employment decisions;
  • Restricts deliberate acquisition of genetic information;
  • Requires that genetic information be maintained as a confidential medical record; and
  • Places strict limits on the disclosure of genetic information.

So how does this affect employers? What if you are provided genetic information in connection with an FMLA certification? What do you do with genetic information that is disclosed in a wellness program?

Fortunately, GINA contains exceptions for inadvertently acquired genetic information, an employee’s knowing and voluntary participation in a wellness program, acquisition of family medical history to comply with FMLA certifications, etc.  Nevertheless, genetic information, however acquired, must be maintained and treated as a confidential record under the Americans with Disabilities Act.

Though the EEOC is still in the process of drafting final regulations for the implementation and enforcement of GINA’s employment provisions, there are steps employers can take now:

  • Post new GINA poster to be issued by the EEOC;
  • Update nondiscrimination policies to include genetic discrimination;
  • Review documents that request medical information and revise accordingly;
  • Properly maintain genetic information currently on file;
  • Review wellness programs to ensure compliance with GINA;
  • Become familiar with the EEOC regulations once they are issued; and
  • Train supervisors and management on GINA compliance.

We expect to see some interplay between FMLA, ADA, GINA and Workers’ Compensation. And we predict issues will arise most likely in the context of managing workplace leaves and accommodations.

We will further advise when the final regulations are issued.