Earlier this week, the EEOC issued its final rule implementing Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which was published in the Federal Register on Tuesday, November 9, 2010. As promised, we are following up with our analysis of the EEOC’s new rule.
The proposed regulations were issued in March 2009 for public comment. Title II took effect almost a year ago on November 21, 2009, before the regulations were finalized. GINA prohibits the use of genetic information in employment decisions and restricts employers and other entities from requesting, requiring or purchasing genetic information. Title II also requires that genetic information be maintained as a confidential medical record, and places strict limits on its disclosure.
GINA applies to an individual’s status as an employee, member of a labor organization, or participant in an apprenticeship program. The final rule, like the proposed rule, includes applicants and former employees in the definition of employee.
The regulations clarify that they do not apply to an employer’s actions that do not pertain to an individual’s status as an employee, such as a law enforcement agency investigating criminal conduct, even where the subject of the investigation is an employee, or a healthcare facility providing a medical examination to an employee for the purpose of diagnosis and treatment unrelated to employment.