The Genetic Information Nondiscrimination Act of 2008 ("GINA") becomes effective for employers on November 21, 2009. GINA is a federal law that generally prohibits employers from acquiring or using genetic information about its employees, with certain restrictions. GINA requires the posting of a newly revised EEOC poster in the workplace. The "EEO is the Law" Poster Supplement addresses recent changes to federal laws that prohibit job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability, and, as of this month, genetic information.
Congress enacted GINA in recognition of developments in the field of genetics, including the decoding of the human genome, and advances in the field of genomic medicine. Title II of GINA applies to employers, including private, state and local government employers with 15 or more employees, employment agencies, labor unions, and joint-labor management training programs. Employers are prohibited from discriminating against employees based on genetic information and restricting disclosure of such information.
The term "genetic information" means, with respect to any individual, information about:
- such individual's genetic tests,
- the genetic tests of family members of such individual, and
- the manifestation of a disease or disorder in family members of such individual.
The inadvertent acquisition of genetic information, the so-called "water cooler" exception, is a recognized exception to GINA. An employer that acquires knowledge of genetic information in such a way has not violated GINA. However, it is important to note that although the acquisition of the genetic information was innocent or inadvertent, any subsequent use that results in an adverse employment action for the employee would violate GINA and subject the employer to potential liability.
Employers must post the EEOC supplemental poster on or before November 21, 2009. The poster should be posted with other mandatory employment law postings (EEO 9/02 or OFCCP 8/08) in all workplaces. Failure to post such notices may result in civil penalties.
Download a copy of the "EEO is the Law" Poster Supplement.
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