GINA Regulations Provide Safe Harbor for Employers

January 7, 2011 By Christine L. Robek, Adam R. Hanley

After more than a year of delays, the EEOC has finally issued its regulations for the Genetic Information Nondiscrimination Act of 2008 ("GINA"). In effect since November 2009, GINA bars employers from using genetic information in employment decisions. The statute also prohibits employers from acquiring employees' genetic information, though it provides an exception if the information is obtained inadvertently.

The regulations, effective January 10, 2011, reflect the EEOC's expansive reading of the statute and potentially expose employers to significant liability for GINA violations. But tucked away in the regulations is a "safe harbor" provision that is critical for employers who inadvertently receive genetic information in response to a lawful request for medical information. Under the regulations, such an acquisition of genetic information will only be considered inadvertent if the request for medical information explicitly notifies the employee or health care provider not to respond with genetic information. Employers may include the following EEOC-approved language in their requests for medical information to satisfy this notice requirement:

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.

Employers will be shielded from GINA liability by including this safe harbor language in their medical requests, even if the employee or healthcare provider ignores the notice and responds with genetic information. The employer still must treat the inadvertently-obtained information as confidential, and may not use the information in employment decisions.

For questions regarding the GINA regulations, please contact Christine Robek, Adam Hanley, Jeffrey Shoskin, or any other attorney in Frost Brown Todd's Labor and Employment Practice Group.