In our January 16, 2012 edition of Legal News: Employment Law Update, we discussed companies’ numerous obligations with respect to employee recordkeeping. On February 12, 2012, the EEOC added another set of requirements into the mix, issuing its final recordkeeping rules for the Genetic Information Non Discrimination Act (GINA).Under Title II of GINA, employers with 15 or more employees are prohibited from discriminating against an individual based on their “genetic information.” Under the statute, “genetic information” includes an individual’s family medical history, an individual’s participation in genetic testing, counseling, or education, as well as the genetic testing results of employees or their family members.
The new recordkeeping rule imposes the same recordkeeping requirements as currently exist under Title VII and the ADA. Specifically, the following steps will be required for purposes of compliance with GINA:
- All employment and personnel records must be kept for a period of one year from the date the record is made or the personnel action is taken, whichever is later. In the case of an involuntary termination, the employer must keep the individual’s employment records for a period of one year following the termination.
- For records relating to a discrimination charge filed with the EEOC, or a civil action under GINA brought by the EEOC or the Attorney General, the employer must preserve all employment records relevant to the EEOC charge or action until its final disposition. Although the regulations require employers to maintain any applicable records that they create, there is no requirement that employers create additional documents. Additionally, the rule does not impose any reporting requirements under GINA.
The new recordkeeping obligations go into effect on April 3, 2012.