The EEOC’s final regulations under GINA take a broad and expansive view of the general prohibition on seeking genetic information. For instance, the regulations make clear that an employer may violate GINA without a specific intent to acquire genetic information.
However, there is an exception to the general prohibition on seeking genetic information that is applicable to lawful requests by employers for medical information sought in the context of requested leaves and accommodations. But this exception applies only if the employer affirmatively informs both employees and their healthcare providers from whom such information is sought that the employer is not seeking genetic information in response to its request for medical information.
The EEOC’s final regulations include suggested “safe-harbor” language to accompany or include on any FMLA (or related) medical certification forms in which a lawful request for medical information is made. The purpose of the safe-harbor language is to inform employees and health care providers that the employer is not seeking, and neither the employee nor the health care provider should provide, any genetic information.
By including this safe-harbor language in any such requests for medical information, the employer is not liable under GINA if the employer is then (inadvertently) provided with genetic information in response to its request. Of course, the safe harbor language does not insolate the employer from liability if the employer subsequently uses improperly the genetic information that was inadvertently disclosed to it.
The suggested safe-harbor language contained in the EEOC regulations is as follows:
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 will want to review their LOA and accommodation processes to make sure this language is included in all requests for medical information.
This blog should not be construed as legal advice or as pertaining to specific factual situations.