Q. If one of our managers overhears an employee discussing his genetic information, is our company liable under GINA?
A. Probably not, but it depends on the circumstances. In November, the EEOC published final regulations implementing Title II of GINA. They are codified at 29 C.F.R. §1635. The final regulations provide guidance on various sections of GINA and address this situation.
An employer does not violate GINA if it inadvertently acquires genetic information. The regulations provide examples of situations when an employer would inadvertently acquire genetic information, including where a manager or supervisor learns genetic information by overhearing or during a casual conversation.
Other inadvertent acquisition might occur through a social media networking for which the supervisor has permission to access. Thus, there’s no GINA violation if a boss is an employee’s Facebook friend and learns about genetic information that way.