Thursday, February 2, 2012
Employers covered by the FMLA should take note of regulations under the Genetic Information Nondicrimination Act (GINA) published by the U.S. Equal Employment Opportunity Commission (EEOC). Although the FMLA is enforced by the U.S. Department of Labor, not the EEOC, the new GINA regulations require employers who seek medical certifications in support of leave or accommodation requests - including FMLA leave - to provide new disclosures or risk violating GINA.

GINA's prohibition on acquiring genetic information does not apply to "inadvertent" acquisition of such information, or to an employer's request for family medical history in a lawful request for certification under the FMLA.

The exception for inadvertent disclosure seemed to provide some assurance to employers that lawfully requesting medical information as permitted by the FMLA, ADA and other state and federal laws would not result in a violation of GINA, even if the request happened to result in the disclosure of genetic information.

However, under GINA’s final rules, employers can rely upon this "safe harbor" only if they affirmatively notify employees of GINA's limitations on requests for genetic information. Specifically, the regulations state:

If a covered entity acquires genetic information in response to a lawful request for medical information, the acquisition of genetic information will not generally be considered inadvertent unless the covered entity directs the individual and/or health care provider from whom it requested medical information (in writing, or verbally, where the covered entity does not typically make requests for medical information in writing) not to provide genetic information.

The rules go on to state that employers can satisfy this notice requirement by using the following language in a request for medical information, such as an FMLA certification form:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.

Genetic information may be obtained by an employer without violating GINA when it requests family medical history to comply with the certification provisions of the FMLA, state or local family leave laws, or pursuant to a policy that permits the use of leave to care for a sick family member and that requires all employees to provide information about the health condition of the family member to substantiate the need for leave. In this circumstance, the above-quoted “safe harbor” language is not required (but may be included).

  • Employers should update their FMLA medical certification forms to include the "safe harbor" language above.
  • Employers who use the DOL model forms should consider including the safe harbor language as an additional attachment or addendum to the forms.
  • The disclosure language should also be included on other requests for medical information, such as requests for documentation of an employee's need for an accommodation and fitness for duty certifications.
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