Do Employers Run Afoul of the Genetic Information Nondiscrimination Act When Requiring FMLA Certifications?

Guest Post: by Erin Fitzgerald, Esquire

On May 21, 2008, President Bush signed the Genetic Information Nondiscrimination Act of 2008 ("GINA") into law.  Title II of GINA, which goes into effect on November 21, 2009, covers private, state, and local government employers with 15 or more employees, as well as employment agencies and labor organizations.  Title II restricts the deliberate acquisition of genetic information by covered entities, prohibits the use of genetic information in employment decision-making, requires that genetic information be kept confidential, and places limits on disclosure of genetic information.  However, several exceptions apply to an employer's acquisition and disclosure of information under the FMLA. 

GINA defines genetic information as information regarding:

  1. an individual's genetic tests;
  2. the genetic tests of an individual's family members;
  3. the manifestation of disease or disorder in family members of the individual (family medical history);
  4. an individual's request for or receipt of genetic services or the participation in clinical research that includes genetic services by the individual or a family member of the individual; and
  5. the genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.

Although GINA generally prohibits employers from acquiring genetic information of an employee (including family medical history), the Act provides that the prohibition does not apply to the extent such a disclosure is made inadvertently by an employee when submitting a certification requested under the FMLA.  For example, an individual requesting FMLA leave to care for a seriously ill relative may disclose family and medical history when completing the certification required by the FMLA.  An employer who receives that genetic information would not be in violation of GINA.  However, the genetic information disclosed is still subject to GINA' s confidentiality requirements, and must be placed in a file separate from the employee's personnel file.  The Americans with Disabilities Act ("ADA") also requires that employees' medical records be maintained in a file separate from the personnel file, and an employer may maintain GINA-protected information in the same file in which it maintains an employee's medical information under the ADA.   

A second exception permits disclosure of genetic information when that disclosure is made in support of an employee's compliance with the certification provision of Section 103 of the FMLA.  For instance, if an employee's supervisor receives a request for FMLA leave from an employee who wants to care for a family member with serious health condition, that supervisor may forward that request to individuals with the need to know the information because of responsibilities relating to handling FMLA requests. 

Employers should become familiar with GINA's requirements to ensure that they are not requesting, maintaining, or disclosing genetic information in violation of the Act. 

Erin Fitzgerald is an Attorney in the Labor and Employment Department of Fox Rothschild LLP.  

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