Though the Genetic Information Nondiscrimination Act (GINA) has already taken effect, the law’s regulations are still in a state of flux at the Equal Employment Opportunity Commission (EEOC) and have yet to be finalized.

One of the contentious issues that is being weighed internally and through public commentary is the right, or lack thereof, of employers to access employees’ or job applicants’ social media sites such as Facebook and MySpace.

Since GINA bars the use of genetic information in any employment or health care decision, many are worried that employers who snoop into employees’ Facebook, MySpace, LinkedIn or other social media pages might find evidence of a genetic nature, such as a family history of cancer, that could result in adverse decisions.

Public commentary, which has now been closed, is running about 50-50 in favor and against the barring of employers from viewing the social media sites of their employees or job applicants. Major business groups such as the U.S. Chamber of Commerce are in full favor of allowing the practice of using the social media for background checks, while the ACLU and FDIC have come out strongly in favor of an outright ban.

What’s interesting is that this is the first time a government agency has considered the employer practice of using the social media for background checks. Horror stories abound of people who’ve lost jobs for having posted indiscriminate party pictures and the like on their pages. If doing so can be considered discriminatory, then the affected employees can file complaints with the EEOC and eventually sue their employers.

It will be interesting to see the outcome of this debate, and with public commentary period closed, the regulations should be finalized and released soon.

Meanwhile, for both employers and health care providers and insurers, GINA is in full effect, and to help you understand your obligations and rights, Personnel Concepts has prepared a comprehensive and useful Genetic Information Nondiscrimination Compliance Kit. Get yours today.