GINA prohibits employers from requesting or using genetic
information from or about employees.
Genetic information has been defined to include family medical
histories. If an employer lawfully requests
medical information about an employee (pursuant to, for instance, an FMLA leave
request, FMLA return to work notice, and/or ADA reasonable accommodation) and
then receives genetic information in response to the lawful request, the
employer can still be liable for violating GINA unless it specifically directed
the healthcare provider to NOT provide genetic information. In particular, the GINA regulations create a
safe harbor for employers if they provide the following disclaimer (or
something similar) with a request for medical information:
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' as defined by GINA, includes an
individual's family medical history, the results of an individual's or family
member's genetic tests, the fact that an individual or an individual's family
member sought or received genetic services, and genetic information of a fetus
carried by an individual or an individual's family member or an embryo lawfully
held by an individual or family member receiving assistive reproductive
services.”
The new FMLA medical certification form for individual employees contains the following language directed
to the healthcare provider as though they are intimately familiar with the
terms of the GINA
regulatory definitions:
Do not provide
information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), genetic
services, as defined in 29 C.F.R. § 1635.3(e), or the manifestation of disease
or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b).
Employers are also not liable for inadvertent receipt of genetic information or for receiving information
lawfully acquired under the FMLA when medical/family leave is sought to care
for an ill family member, whose medical history is directly relevant to the FMLA
leave request. The GINA regulations
specifically provide that it does not violate the Act to request information
about family medical history:
Where
the covered entity requests family medical history to comply with the
certification provisions of the Family and Medical Leave Act of 1993 (29
U.S.C. 2601 et seq.) or
State or local family and medical leave laws, or pursuant to a policy (even in
the absence of requirements of Federal, State, or local leave laws) 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 light of this,
the FMLA medical
certification form concerning a family member’s serious health condition
contains a slightly different warning to physicians about GINA:
Do not provide information about genetic tests, as defined in 29
C.F.R. § 1635.3(f), or genetic services, as defined in 29 C.F.R. § 1635.3(e).
NOTICE: This summary is designed merely to inform and alert you
of recent legal developments. It does not constitute legal advice and does not
apply to any particular situation because different facts could lead to
different results. Information here can be changed or amended without
notice. Readers should not act upon this information without legal advice. If
you have any questions about anything you have read, you should consult with or
retain an employment attorney.
