The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other covered entities from discriminating based on genetic information. GINA also prohibits covered entities from requesting, requiring or purchasing genetic information of an applicant or employee. “Genetic information” is broadly defined by GINA and includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that such genetic services were sought, and genetic information of a fetus carried by an individual or an individual’s family member.

If an employer requests medical information from an employee (or his/her health care provider) and the employer receives genetic information in addition to the requested medical information, the employer may be liable under GINA. However, GINA’s regulations provide a safe harbor for employers that inadvertently receive otherwise protected genetic information. Specifically, receipt of genetic information from an employee (or his/her health care provider) may be considered “inadvertent,” and thus, not a violation of GINA if the employer instructs employees and/or health care providers from whom medical information is sought that the employee is not seeking and should not be provided genetic information.

To limit liability under GINA, employers should add safe harbor language to their employment policies and medical-related forms. For example, revisions to policies and forms related to the Family and Medical Leave Act, medical examinations, disability and reasonable accommodation requests, and other medical leaves of absence should be considered.

Incorporating safe harbor language is a wise choice for employers because the policy and form revisions are not overly burdensome, and the language may save employers from the litigation costs and damages associated with GINA claims filed by employees.