A new federal law and recently proposed regulations require employers to take new actions regarding employee's genetic information. The Genetic Information Nondiscrimination Act ("GINA" or the "Act") went into effect on November 21, 2009. The EEOC is charged with enforcing the Act, and the Commission proposed regulations in March 2009. Final regulations were expected in May 2010. However, the Commission appears to have delayed publication of those regulations. The delay served as a reminder to employers to ensure that they are complying with the Act's requirements while businesses wait for the EEOC to put the regulations in place.
The Act provides that employers may not discriminate against any prospective or current employee with respect to the compensation, terms, conditions or privileges of employment because of the employee's genetic information or family medical history. In addition, employers generally may not request, require or purchase such information about an employee or an employee's family member.
Of particular importance, the Act requires separate, confidential handling of genetic information when an employer is in possession of it. The Act mandates that employees maintain genetic information on separate forms and in separate medical files that employers must keep as a confidential medical record of the employee.
Complying with GINA requires employers to take affirmative steps. Among other things, employers should (a) provide training for human resources departments and managers on how to avoid acquiring genetic information, (b) review record-keeping procedures, and (c) ensure confidential handling of genetic information. Employers should also post appropriate notices to inform all employees of the Act. Finally, employers should revise policies so that they explicitly prohibit discrimination based on genetic information.
The penalties for using genetic information in violation of the Act when hiring, firing or making compensation decisions are steep. A plaintiff may seek reinstatement, back pay, injunctive relief, compensatory and punitive damages and attorneys' fees and costs.
If you have any questions about how these changes in the law may affect your business, please contact Michael Furey, Scott Ohnegian, Dan Zappo or Stephanie Wolfe of Riker Danzig's Labor & Employment Group.
