509.1 The Office and Commission adopt and incorporate by reference any guidelines adopted by the EEOC pursuant to the Genetic Information Nondiscrimination Act of 2008 (Pub. L. No. 110-233; 122 Stat. 881).

509.2 The following actions or practices shall be prohibited:

1. (a) It is a discriminatory practice for an employer, employment agency, or labor organization to do the following:
2. (1) Requesting or requiring a genetic test of, or administering a genetic test to, an employee or applicant for employment or membership; and
3. (2) Seeking to obtain, obtaining, or using genetic information of an employee or applicant for employment.
4. (b) It is a discriminatory practice for an employment agency to fail or refuse to refer any individual for employment or otherwise discriminate against any individual because of genetic information of the individual.
5. (c) It is a discriminatory practice for a labor organization to exclude or to expel from the membership of the organization, or otherwise to discriminate against, any member because of genetic information with respect to the member.
6. (d) It is a discriminatory practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs, including on-the-job training programs, to discriminate against any individual because of the individual's genetic information in admission to, or employment in, any program established to provide apprenticeship or other training or retraining.
7. (e) It is a discriminatory practice for an employer to use family medical history in making employment decisions.
8. (f) It is a discriminatory practice for an employer to request information about family medical history pre-employment or post-employment, including through any type of medical examination required of employees for the purpose of determining continuing fitness for duty.

509.3 An employer, employment agency, or labor organization may use genetic testing or information for the following reasons:

(a) With the written and informed consent of the employee or applicant for employment, to determine the existence of a bona fide occupational qualification; or

(b) To investigate a workers' compensation or disability compensation claim, or determine an employee's susceptibility or exposure to potentially toxic substances in the workplace.

509.4 If determining an employee's susceptibility or level of exposure to potentially toxic substances in the workplace, the employee shall provide, in writing, his or her informed consent. The genetic information shall be provided to the employee in writing as soon as it is available, and the genetic information shall not be disclosed to any other person.

509.5 A group health plan, or a health insurance issuer offering health insurance coverage in connection with a group health plan, may request, but not require, that a participant or beneficiary undergo a genetic test if each of the following requirements is met:

(a) The request is made in writing, and complies with local or federal law with respect to the protection of human subjects;

(b) The plan or issuer clearly indicates to each participant or beneficiary, or in the case of a minor child, to the parent or legal guardian of such beneficiary, to whom the request is made that:

1 Compliance is voluntary; and

2 Non-compliance will have no effect on enrollment status or premium or contribution amounts; and

(c) No genetic information collected or acquired for these purposes shall be used for eligibility purposes.

509.6 The following are not considered genetic information for purposes of this chapter:

(a) Information about an applicant's or employee's current health status, which includes information about sex, age, physical exams, and chemical, blood, or urine analyses;

(b) Genetic services or health services provided by the employer, including genetic tests, provided to obtain or interpret genetic information for diagnostic or therapeutic purposes, or for purposes of genetic education or counseling; and

(c) Results obtained from tests for abuse of alcohol or drugs.

509.7 If an employer, employment agency, or labor organization obtains protected genetic information when seeking current health status information, the genetic information will be subject to the same restrictions that apply to genetic information generally.

509.8 If genetic information is obtained for any lawful reason, it shall be stored in a separate confidential file, not in the employee's general personnel file.

SOURCE: Final Rulemaking published at 56 DCR 006029 (July 31, 2009).