The Equal Employment Opportunity Commission has issued a new workplace poster that incorporates changes made by the ADA Amendments Act (“ADAAA”) and the new requirements of the Genetic Information Nondiscrimination Act (“GINA”).  The ADAAA took effect January 1, 2009 and GINA's ban on employment discrimination based on an individual's genetic information takes effect on Nov. 21, 2009.

Employers have two options for complying with the new posting requirement. One is to print an “EEO is the Law” poster supplement and post it next to the September 2002 edition of the EEOC’s employment law poster. Alternatively, employers can print and post the new November 2009 version of the EEOC poster.  Both posters can be downloaded and printed from the EEOC’s website or can be found here.

GINA’s Employment Provisions Take Effect November 21

As GINA’s November 21 effective date nears employers need to familiarize themselves with the provisions of GINA.  Many employers are under the mistaken belief that GINA only applies to employers who conduct genetic tests.  That is not the case.  While genetic information protected under the Act includes information obtained from genetic tests, and an employee’s request or receipt of genetic services, it also protects family member medical information including information about the manifestation of a disease or disorder in an employee’s family member.   GINA prohibits employers from both requesting and disclosing genetic information except in limited circumstances.  The “innocent” supervisor who asks questions about an employee’s ailing mother could open the door for a claim under GINA.

As the effective date approaches, employers should consider taking the following actions:

• Amend EEO policies to include a prohibition on genetic discrimination;
• Review medical questionnaires for unlawful requests (even if solicited post-offer such forms should no longer request family medical history);
• Train supervisors and managers on the prohibitions contained in GINA and the types of information they can and cannot discuss with employees;
• Re-evaluate the types of information requested in conjunction with sick leave or other absences (although an employer may still gather family medical information in connection with a request for FMLA leave, the employer may be limited in its ability to request similar information for non-FMLA protected leave);
• Take steps (through policy and training) to insure that the genetic information/family medical information that an employer does have is maintained confidentially.  Such information, even information that is obtained or overheard inadvertently, should not be further disclosed by the employer, except as narrowly allowed by the Act.
   

Taft attorneys in the Labor and Employment practice area are available to consult for further details.