EEOC Proposes New Recordkeeping Rule for GINA

The federal Genetic Information Nondiscrimination Act (GINA), enacted in 2008, prohibits employers from discriminating against employees or applicants because of genetic information.* California law also prohibits discrimination on the basis of an employee's genetic characteristics.

On June 2, 2011, the Equal Employment Opportunity Commission (EEOC) published a proposed rule that would require all employers to maintain any employment or personnel records until any EEOC charge filed under GINA is resolved. Covered records may include job applications, records relating to promotion, demotion or termination, rates of pay or other terms of compensation and records relating to selection for training or apprenticeship.

This same recordkeeping requirement already exists under both Title VII and the Americans with Disabilities Act (ADA). According to the EEOC, the proposed rule merely seeks to extend these recordkeeping requirements to employers covered by GINA.

GINA also restricts employers from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information. “Genetic information” includes:

• Information about an individual’s genetic tests
• Information about the genetic tests of a family member
• Family medical history
• Requests for, and receipt of, genetic services by an individual or a family member (such as genetic testing, counseling or education)
• Genetic information about a fetus carried by an individual or family member, or about an embryo legally held by the individual or family member using assisted reproductive technology

 Written comments can be sent to:

Stephen Llewellyn, Executive Officer, Executive Secretariat, EEOC

131 M St., NE., Suite 6NE03F

Washington, D.C. 20507

Comments, which are due by August 1, also can also be submitted online at www.regulations.gov, Docket ID # EEOC-2011-0013.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

*CalChamber members can turn to HRCalifornia for a detailed discussion of GINA.

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