California law prohibits employers from discriminating against employees or applicants on the basis of genetic characteristics under Title II of the Genetic Information Nondiscrimination Act (GINA). The Equal Employment Opportunity Commission (EEOC) defines genetic information as "information about an individual's genetic tests and genetic tests of an individual's family members, as well as information about any disease, disorder or condition of an individual's family members."Acquiring Genetic Information
Although it is unlawful for an employer to get genetic information on an employee, there are certain instances when it may be necessary. Regulations allow employers to obtain information under the following circumstances:
(1) Unintentional acquisitions of genetic information do not violate GINA.
(2) Genetic information (such as family medical history) may be obtained as part of health or genetic services, including wellness programs, offered by the employer on a voluntary basis, if certain specific requirements are met.
(3) Family medical history may be acquired as part of the certification process for FMLA leave.
(4) Genetic information may be acquired through commercially and publicly available documents like newspapers, as long as it is not done intentionally.
(5) Genetic information may be acquired through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace where the monitoring is required by law or, under carefully defined conditions, where the program is voluntary.
(6) Acquisition of genetic information of employees by employers who engage in DNA testing for law enforcement purposes as a forensic lab or for purposes of human remains identification is permitted, but the genetic information may only be used for analysis of DNA markers for quality control to detect sample contamination.
Recordkeeping
The (EEOC) issued its final recordkeeping rule for GINA effective April 3, 2012. The following steps will be required by employers:
- Any personnel record made or kept by an employer must be preserved for one year from the date it was made or one year from the personnel action taken, which ever is later.
- If an employee is involuntarily terminated the record must be kept for one year from the termination date.
- If a discrimination charge has been filed, or an action brought by the EEOC or the U.S. Attorney General, under GINA, the records must be kept until the final disposition has taken place.
Although it is not required for employers to create records or require any type of reporting, it is essential that if a record is created it is maintained properly. Please note that according to various federal and state laws, employee personnel files must be kept for a minimum of two years following termination or longer if any payroll or benefit information has been kept in the file.
For more information about any of the topics discussed above, please feel free to contact Sarina Flores or Nicollette Donato in Flores Financial Services' Human Resources Department at (619) 334-7010.