Employers covered by the FMLA should take note of new final regulations under the Genetic Information Nondicrimination Act (GINA) published this week 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.

What is GINA?

GINA was signed into law by President Bush in May 2008 and took effect on November 21, 2009. Title II of the Act is purportedly designed to prevent the misuse of certain genetic information for employment purposes. Title II prohibits discrimination and harassment based upon 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.

Under GINA, "genetic information" includes:

  • Information about an individual’s genetic tests;
  • Information about genetic tests of an individual’s family members;
  • Information about the manifestation of a disease or disorder in an individual’s family members (i.e. family medical history);
  • 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
  • Genetic information of a fetus carried by and 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 techcnology.

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. 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 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.

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" 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.

Unfortunately, when it comes to FMLA leave for a family member, simply inserting the above language into a certification form may be misleading. As noted above, GINA includes an additional exception that allows employers to ask for "family medical history" to comply with the FMLA. Consequently, when seeking leave for a family member's serious health condition, 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.

Insights for Employers

  • The new final GINA regulations take effect January 10, 2011.
  • As soon as possible, and no later than the effective date, 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.
  • Employers who have not already done so should educate HR personnel, managers and supervisors about GINA, and ensure that their internal policies and procedures comply with the new regulations.