Warning the employee or health care provider, either in writing or orally, not to provide genetic information creates a "safe harbor" for the employer.

EEOC Issues Final GINA Title II Regulations

Employers have been required to comply with the Genetic Information Non-Discrimination Act of 2008 since Nov. 21, 2009.

The final regulations implementing Title II, the employment provisions of the Genetic Information Non-Discrimination Act of 2008, were published Nov. 9 by the U.S. Equal Employment Opportunity Commission along with a helpful Q&A for Small Businesses document that should be required reading for employers of all sizes. This law bars using genetic information to make decisions about health insurance and employment, and it restricts both acquiring and disclosing genetic information.

The regulations received unanimous approval by the commission, according to EEOC.

"The final regulations implementing GINA reflect the concerted effort by all commissioners to ensure that workers, job applicants, and employers will have clear guidance concerning the implementation of this new law. These regulations are also a testimony to the tireless work of the late Paul Steven Miller, who was a commissioner of the EEOC and a leader in the movement to protect individuals against discrimination based on family medical history or genetic information for many years," EEOC Chair Jacqueline A. Berrien said in the agency's news release about their publication.

The Q&A document explains the six narrow exceptions to the rule that bars employers from requesting, requiring, or buying genetic information about an applicant or an employee. Answer #17 explains how an employer can comply when lawfully requesting health information from an employee: by warning the employee and/or the health care provider from whom it requested the information, either in writing or orally, not to provide genetic information. The warning creates a "safe harbor" for employers who do receive genetic information from such a request.

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