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Alert to Employers: New Genetic Discrimination Regulations Take Effect January 10, 2011…Are You in Compliance?

On January 10, 2011, the U.S. Equal Employment Opportunity Commission’s (EEOC) final regulations implementing the employment provisions (Title II) of the Genetic Information Nondiscrimination Act (GINA) will take effect.  These regulations require employers to take active steps in complying with the law.  At a minimum, employers need to evaluate and update any forms requesting medical information to ensure that the forms comply with the law.  Notably, employers are no longer allowed to request or require an individual to provide information concerning family medical history because this is considered “genetic information” under the law.  Furthermore, employers should be proactive in adding the “safe harbor” language provided in the regulations to any form requesting medical information and in telling its health care providers not to collect genetic information as part of an employment-related medical exam.  The following “safe harbor” language is suggested in the regulations:

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 employees or their family members.  In order 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 should also be sure to post the required GINA notice in a conspicuous place where other notices are customarily posted.  The updated notice can be found on the EEOC’s website at http://www1.eeoc.gov/employers/poster.cfm.  These new regulations will impact many employers’ current practices involving requests for medical information and medical examinations.  We recommend that you review your current forms and practices in light of the new regulations before the January 10 effective date



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