Genetic information placed in personnel files prior to November 21, 2009, GINA’s effective date, need not be removed. An employer will not be liable under GINA for the mere existence of that genetic information in a personnel file; however, disclosing that genetic information to a third party is prohibited.
Confidentiality requirements. An employer in possession of genetic information about applicants or employees must treat that information the same way it treats medical information generally. It must keep the information confidential and, if the information is in writing, must keep it apart from other personnel information in separate medical files. Genetic information may be kept in the same file as medical information subject to the Americans with Disabilities Act (ADA).
There are limited circumstances under which an employer may disclose genetic information:
- To the employee or family member about whom the information pertains, upon receipt of the employee’s or family member’s written request;
- To an occupational or other health researcher conducting research in compliance with 45 CFR Part 46;
- In response to a court order, except that the employer may disclose only the genetic information expressly authorized by the order;
- To government officials investigating compliance with Title II of GINA, if the information is relevant to the investigation;
- In accordance with the certification process for leave under the Family and Medical Leave Act (FMLA) or similar state laws; or
- To a public health agency, but only with regard to informa¬tion about the manifestation of a disease or disorder that concerns a contagious disease that presents an imminent hazard of death or life-threatening illness.
Source: Questions and Answers for Small Businesses: EEOC Final Rule on Title II of the Genetic Information Nondiscrimination Act of 2008; http://www.eeoc.gov.