The Equal Employment Opportunity Commission (EEOC) finalized its regulations for the Genetic Information Nondiscrimination Act (GINA) on November 9, 2010. These regulations took effect on January 10, 2011 and they prohibit employers from gathering genetic information when certifying an employee’s own serious health condition for leave under the Family and Medical Leave Act (FMLA). The GINA regulations apply both to public and private employers with 15 or more workers. Accordingly, those employers subject to the FMLA, which covers employers with 50 or more workers within a 75-mile radius, all would be subject to the GINA regulations.

Certification Under the FMLA

Pursuant to the Family and Medical Leave Act or similar state laws, employers as a matter of course require that an employee’s health care provider complete certification forms to justify leave requests.

The EEOC regulations provide essentially a “safe harbor” for employers and suggest a model notice that should be included in all certification requests to health care providers for medical information to support an employee’s own serious health condition under the FMLA. The following is suggested as model language for employers to use:

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.

The model notice is applicable to any situation in which medical information is requested, including those situations not covered by the FMLA.

Exception for Family Member Information

Employers should not use the model safe harbor language when they are seeking a certification from the employee concerning a family member’s serious health condition. The GINA regulations provide an exception to the prohibition on obtaining genetic information when an employee requests FMLA leave in order to care for a family member’s serious health condition.

Employer Fitness-for-Duty Medical Certifications

Employers must take care to specifically state that family medical history or other genetic information be excluded from fitness-for-duty medical certifications upon return from leave. The EEOC states that “any time an employer sends an applicant or employee for a medical examination, the employer knows or should know that genetic information is likely to be requested.” Therefore, under the regulations, employers must specifically inform health care providers not to seek or obtain genetic information during medical examinations that are performed in order to certify an employee’s ability to perform his or her job and return to work.

The regulations provide that an employer must take “reasonable measures” to prevent health care providers from collecting genetic information under these circumstances, including no longer using a health care provider who has been provided the appropriate warnings not to gather genetic information during fitness-for-duty exams but fails to follow the employer’s instructions.

What to Do

There are obvious precautions that an employer should take to comply with GINA. For instance, genetic information, like all medical information of an employee, cannot be maintained as part of an employee’s personnel file. Furthermore, employers who do obtain genetic information can only disclose that information under certain limited circumstances:

  1. to an employee or his or her family member upon their request
  2. to an occupational or other health researcher conducting research in compliance with federal regulations
  3. in response to a court order upon prior notification to the employee or family member
  4. to government officials investigating GINA compliance
  5. in connection with an employee’s compliance with leave certification requirements, and
  6. to public health agencies if related to a contagious disease that presents an imminent hazard of death or life-threatening illness, after notification to an employee or family member.

Employers can reduce the risk of inadvertently obtaining genetic information by training managers and supervisors about GINA and, further, by allowing the company’s HR department to handle the details of an employee’s medical condition so that managers avoid learning prohibited information and to provide consistent application of company policies.

At a minimum, all employers should (1) post a new EEOC Notice that includes additional information about GINA; (2) communicate to all health care practitioners that conduct medical examinations for the employer that genetic information should not be disclosed and, further, provide the practitioner with written instructions concerning the gathering and protecting from disclosure of genetic information; and (3) include the EEOC model language that is suggested in the regulations and referenced above in all medical certification forms for all types of leave and/or accommodation.

This article was originally published in the March 2011 issue of The HR Specialist. It is reprinted here with permission.