The EEOC has issued final regulations extending current recordkeeping requirements under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) to employers covered by the Genetic Information Nondiscrimination Act of 2008 (GINA).
GINA prohibits covered employers (15 or more employees) from discriminating against job applicants, current and former employees, and members of labor unions based on their genetic information, such as family medical history. GINA also restricts covered employers from requesting, requiring, purchasing or disclosing employee genetic information.
The final regulations amend the EEOC's existing recordkeeping rules to impose the same retention requirements under GINA that currently apply under Title VII and the ADA. Employers must retain all employment and personnel records made or kept for a period of one year from the date the record is made or the Human Resource action is taken, whichever occurs last. Other employers subject to Title VII, the ADA or GINA, such as educational institutions and state and local governments, are required to keep employment and personnel records for two years from the date the record was made or action was taken. When a discrimination charge is filed with the EEOC under GINA, an employer is required to preserve all employment and personnel records relevant to the charge until its final disposition.
The EEOC has provided a safe harbor provision in the final regulations that is intended to protect employers who may receive genetic information about employees in response to a lawful request (e.g. to support a request for a reasonable accommodation under the ADA or a request for leave under FMLA). Under the safe harbor provision, an employer's acquisition of genetic information will be deemed inadvertent and not in violation of GINA so long as the employer warns individuals and health care providers in the request not to provide genetic information. The final rule contains suggested language that employers should use when providing notice to employees and health care providers.
Employers should review their recordkeeping policies and practices to ensure compliance with the new regulations. It is also important to make sure that retention policies take into account other federal recordkeeping requirements, such as those imposed by the Age Discrimination in Employment Act (ADEA).