The Genetic Information Nondiscrimination Act (GINA) generally prohibits employers from requesting, requiring or purchasing genetic information concerning employees, applicants and their families, and from making employment decisions based on such information. GINA took effect for employers on November 21, 2009; the provisions in the U.S. Equal Employment Opportunity Commission’s (EEOC) Final Rule, published in the Federal Register on November 9, 2010, will become effective January 10, 2011.

GINA’s general prohibition does not apply to an employer’s inadvertent acquisition of genetic information. Examples of such inadvertent acquisition, which are included within the Final Rule, include a manager or supervisor learning information through a post on a social media platform to which a manager or supervisor has been granted access, an employee’s response to a broad-based expression of concern, or a manager or supervisor overhearing a conversation between the affected individual and others. Prohibited under the regulations, however, are internet searches that are likely to result in the acquisition of an employee’s or applicant’s genetic information or more probing questions to employees concerning their own or their family members’ health conditions.

Importantly, the EEOC’s Final Rule sets forth the following model language for employers to use in connection with the Family and Medical Leave Act (FMLA) or Americans with Disabilities Act (ADA) medical information requests to health care providers so that if genetic information is received in connection with such requests, it will be deemed inadvertent and not a violation of GINA:

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.

Employers should consider including the above language on any forms used to solicit information from health care providers, whether as part of an FMLA leave request, ADA accommodation request or otherwise. The regulations also set forth procedures for employers to follow who offer wellness programs that may result in the disclosure of genetic information through, for example, health risk assessments that include questions about family medical history and other genetic information. For the full text of the EEOC’s Final Rule, please click here.