To recap, GINA prohibits employers from acquiring genetic information about employees. There are certain limited exceptions to this prohibition, one of which is for inadvertent acquisition of genetic information. Where an employer receives genetic information in response to a lawful request for medical information to an employee, the rules say that the request WILL NOT be considered "inadvertent" "unless the covered entity [i.e., the employer] directs the individual and/or health care provider from whom it requested medical information ... not to provide genetic information." The rules include some optional "safe harbor" language that an employer can use to provide the required notice.
However, if a request for medical information is narrowly tailored so that it is "likely to result in a covered entity obtaining genetic information," the regulations say that the failure to use the "safe harbor" language or a similar notice will not prevent it from establishing that its receipt of genetic information was inadvertent. 29 C.F.R. § 1635.8(b)(1)(i)(C).
After further conversation with an attorney at the EEOC, it seems that the EEOC may take the position that the DOL's model medical certification form is sufficiently narrowly tailored so that it is not likely to result in the employer obtaining genetic information. If that is the case, then it would not be necessary for an employer to provide the GINA safe harbor notice when requesting certification using the DOL model forms.
Unfortunately, the regulations are not entirely clear as to when the safe harbor language is required, and the EEOC has not issued any official guidance confirming that the DOL model form is sufficiently narrow to fall within the "inadvertent acquisition" exception under GINA. That being the case, our recommendations for the time being remain the same:
- 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. As noted above, the EEOC may take the position that this is not required - but there is no guarantee of this, so better safe than sorry.
- 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.