GINA Overview:
The Genetic Information Nondisclosure Act (GINA) makes it unlawful to refuse to hire, discharge, or otherwise discriminate against or harass an employee because of genetic information, bars employers from acquiring genetic information except in certain narrow circumstances, and requires employers to keep any genetic information they may have confidential. The new final GINA regulations took effect January 10, 2011.

Under GINA, “genetic information” generally includes:

• Information about an individual’s genetic tests and the tests of their family members;
• Family medical history (the manifestation of disease or disorder in the individual’s family members);
• Requests for or receipt of genetic services (or the participation in clinical research that includes genetic services) by the individual or a family member; and
• The genetic information of a fetus carried by the individual or a family member.

In addition, employers covered by the FMLA need to take note of the new final regulations under GINA. 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.

New Rules for Requesting Medical Information:
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 or the ADA. Employers might also request a medical exam for several other reasons, including workers compensation claims, disability inquiries, fitness-for-duty exams, and commercial driver qualification. However, under the new final rules, employers can rely upon this “safe harbor” only if they affirmatively notify employees of GINA’s limitations on requests for genetic information.

The rules 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” 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.
**Note that it may be necessary to modify the language above to make it clear that “family medical history” is required, at least to the extent necessary to make the medical certification complete and sufficient under the FMLA.

Things to Do:

• Employers should update their FMLA medical certification forms to include the “safe harbor” language above.
• 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/or fitness for duty certifications.