Reminder to Employers: Include GINA Safe Harbor Language in FMLA Certification Forms

Guest Post: by Erin Fitzgerald, Esquire

In a November 17, 2009, blog entry, I advised that although the Genetic Information Nondiscrimination Act of 2008 ("GINA") generally prohibits employers from acquiring genetic information from 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.

Since that blog entry, the Equal Employment Opportunity Commission has issued final regulations on Title II of GINA. Included in the regulations is a safe harbor provision, which addresses situations when an employer is lawfully requesting medical information. Specifically, the regulations provide that if an employer informs the individual requesting leave under the FMLA and the health care provider who is completing the FMLA certification not to provide genetic information, any acquisition of genetic information from the certification will be deemed inadvertent under the Act.

The regulations provide the following suggested language to use in order to be protected by the safe harbor provision:

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.

While GINA includes an exception for employers who request medical information in a FMLA certification and who inadvertently receive such genetic information, it would be prudent to include the safe harbor language as stated in the regulations when sending out any certifications under the FMLA. We recommend that all FMLA certification forms be revised to include the safe harbor language.

New GINA Case Highlights Need To Ensure Compliance with GINA When Requesting FMLA Certifications

Recently, I was interviewed in connection with an article about a new charge of discrimination filed under the Genetic Information Nondiscrimination Act (GINA) by a woman who had a double mastectomy because she carried a gene linked to breast cancer, and subsequently was terminated from her employment.  She is alleging that her employer was aware that she carried the gene in question, and terminated her as a result.  To date, approximately 80 charges of discrimination alleging GINA violations have been filed with the EEOC, although this appears to be the first case alleging termination in violation of GINA. 

During my interview, I noted that I advise employers to keep medical and personnel records separate to comply with the Americans with Disabilities Act and to avoid the potential for conflicts, and not to request more detailed information about an employee's medical condition than is required to substantiate the need for leave.  Of course, under the FMLA, employers are generally restricted to the areas of inquiry contained in the certification of health care provider form to be completed by the employee's, or the employee's family member's, health care provider. 

Please see my prior blog post (authored by Erin Fitzgerald, Esquire) regarding whether employers run afoul of GINA when requesting FMLA certifications.