The Equal Employment Opportunity Commission (EEOC) issued a final rule that extends its existing recordkeeping requirements under Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA) to employers covered by Title II of the Genetic Information Nondiscrimination Act (GINA). The final rule was published on Feb. 3, 2012, and it takes effect on April 3, 2012.
Here is a summary of the EEOC’s final recordkeeping rule under GINA.
GINA OVERVIEW
Title II of GINA covers employers with 15 or more employees, employment agencies, labor unions and joint labor-management training programs, as well as federal sector employers. (Title VII and the ADA also apply to employers with 15 or more employees.)
Under Title II of GINA, it is illegal for employers to discriminate against employees or applicants because of genetic information. Title II of GINA:
• Prohibits the use of genetic information in making employment decisions;
• Restricts employers and other entities covered by Title II (employment agencies, labor organizations and joint labor-management training programs) from requesting, requiring or purchasing genetic information; and
• Strictly limits the disclosure of genetic information.
Title II of GINA became effective on Nov. 21, 2009. The EEOC issued final regulations to implement GINA’s employment provisions in 2010.
FINAL RECORDKEEPING RULE
The final rule extends the same record retention requirements that currently apply under Title VII and the ADA to employers covered by Title II of GINA. These recordkeeping requirements are described below.
Personnel and Employment Records
Employers must retain all personnel and employment records made or used in the course of their business for one year from the date the record was made or from the date the personnel action was taken, whichever is later. Employers must retain all personnel and employment records for an involuntarily terminated employee for one year from the date of termination.
These types of documents include, for example:
• Requests for reasonable accommodation;
• Application forms;
• Records dealing with hiring, promotion, demotion, transfer, lay-off or termination; and
• Records involving rates of pay, compensation, tenure, selection for training or apprenticeship or other terms of employment.
Records Relating to Discrimination Charge
If a discrimination charge is filed under Title VII, the ADA or GINA, or if a civil action has been brought by the EEOC or the Attorney General, an employer must retain all records related to the charge or actionuntil the final disposition of the charge or action.
EFFECT ON EMPLOYERS
The final rule should have a minimal effect on employers covered by Title II of GINA. It does not require covered employers to create any additional documents, and it does not impose any reporting requirements. It imposes the same recordkeeping requirements that already apply to covered employers under Title VII and the ADA. The only new requirement is that employers retain any records relevant to a charge of discrimination filed under GINA until the charge is resolved.