EEOC Adopts Final Regulations on GINA Recordkeeping Requirements

The Equal Employment Opportunity Commission (EEOC) recently adopted the Final Regulations extending existing recordkeeping requirements under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) to entities covered by Title II of the Genetic Information Nondiscrimination Act (GINA).

What Employers are Covered? Title II of GINA, like Title VII and the ADA, covers employers with 15 or more employees, employment agencies, labor unions, joint labor-management training programs, and federal-sector employers.

What is GINA? Generally, Title II of GINA prohibits employers from discriminating against applicants and employees on the basis of genetic information or employees' immediate family members' genetic information. This rule will take effect on April 3, 2012.

What are the New Recordkeeping Rules? The new recordkeeping rules do not require the creation of any new documents or impose any reporting requirements. The existing recordkeeping requirements for Title VII and the ADA will now apply to GINA. Those existing rules require all covered employers to keep all employment and personnel records for a specified period of time, and keep all records relevant to a Title VII or ADA charge until the charge is resolved. Effective April 3, 2012, the same obligations will apply to GINA-related documents regarding an employees' or immediate family members' health conditions that have or tend to have a genetic component, such as medical records, functional capacity examinations, health questionnaires or documents pertaining to applicable medical leaves of absence. Similarly, all records relating to a charge filed under GINA must be maintained until final disposition of the charge. A charge is resolved when the employee's right to bring a claim under GINA expires or, if a claim was filed, the date the court action is terminated. 

What are the Recordkeeping Requirements for GINA? The specified periods for recordkeeping under Title VII and the ADA, and now applicable to GINA, are as follows:

• Private employers must retain human resource and employment records for one (1) year from the date of making the record or the employment action involved, whichever occurs later. But in the case of involuntary termination, they must retain the terminated employee's personnel or employment records for one (1) year from the date of termination.   
• Educational institutions and state and local governments must retain human resource and employment records for two (2) years from the date of the making of the record or the employment action involved, whichever occurs later. But when there is involuntary termination, they must retain the terminated employee's records for two (2) years from the date of termination.
• Labor unions must retain membership and referral records for one (1) year from making the record. Apprenticeship committees must retain apprenticeship records, including requests for reasonable accommodation, test papers and records of interviews, for two (2) years from the date of making the record.

The EEOC anticipates the new recordkeeping requirements will not be a significant burden on employers because all employers affected by them are already required to retain personnel and employment records under Title VII and the ADA.

If you have any further questions or concerns, please contact Jeffrey M. Embleton, Amy L. Kullik, James A. Budzik or Ann E. Knuth in our Labor and Employment Group.

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