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EEOC Issues Final Rule on Genetic Discrimination

The Equal Employment Opportunity Commission (EEOC) has issued a final rule implementing the federalGenetic Information Nondiscrimination Act (GINA) of 2008.

Signed by President George W. Bush, the law makes it illegal for employers to collect genetic information on employees or to discriminate against employees or prospective employees on the basis of genetic data or family medical history. While many of the law’s provisions apply to health insurance providers, the EEOC rule addresses the use ofgenetic information in the workplace.

The final rule answers questions posed by commenters on the interim rule. For example, the final rule contains clarification on the “inadvertent request” portion of the law. Under GINA, employers do not violate the law if they inadvertently gain genetic information about an employer through casual conversation about health matters or through overhearing employees discussing such issues. However, the EEOC warns that asking probing follow-up questions or eavesdropping to obtain genetic information is prohibited under the law.

Similarly, the rule clarifies that employers do not violate GINA by learning about an employee’s genetic history via a social networking site. According to the EEOC, the inadvertent exception applies to information posted on Facebook or other social networking platforms. However, an employer may not conduct an Internet search on an employee or prospective employee to obtain genetic information.

Commenters were also concerned over information disclosed while attempting to reach accommodation under the Americans with Disabilities Act or the Family and Medical Leave Act. The EEOC noted that such discussions could lead to disclosure of prohibited genetic information. The agency has provided sample language that employers can use that warns employees against disclosing genetic data. So long as an employer has provided this warning, any disclosure would be considered inadvertent.GINA final regs.pdf

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