Using The “Safe Harbor” Language In GINA Title II

On November 9, 2010, we issued a Management Alert (EEOC Issues Final Regulations to Title II of GINA) advising that the final regulations to Title II of Genetic Information Nondiscrimination Act of 2008 (GINA) would go into effect on January 10, 2011. At that time, we recommended certain changes that employers need to make when requesting medical information from employees. Since then, we have continued to receive inquiries on that subject. This update provides further guidance on the scope of what needs to be done to be GINA-compliant.

There are a number of valid circumstances where an employer requests health-related information from an employee, such as for FMLA, ADA, workers’ compensation, short term disability, or other lawful purposes. The GINA regulations specifically provide an exception to the general rule prohibiting employers from gathering genetic information, which includes family medical history, where the employer acquires it inadvertently in response to a valid request for health-related information. To enable employers to avail themselves of this “inadvertence” exception, the regulations provide the following “safe harbor” language:

The Genetic 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.

This safe harbor language should be included on a number of documents that employers use to request health-related information from employees or their health care providers, including (but not limited to) the following:

• FMLA certification forms for the serious health condition of the employee (but not a covered family member; because providing health-related information regarding a family member (or “family medical history”) is necessary to comply with the certification provisions of FMLA to take leave for a sick family member, it is an exception to GINA’s non-disclosure rules;
• Medical certifications (non-FMLA) to support an employee’s absence or a request for an ADA accommodation;
• Requests for additional health-related information to support a medical leave of absence;
  Fitness for duty certifications certifying an employee’s ability to return to work;
• Pre-employment post offer medical questionnaires, which should be revised to eliminate all questions relating to family medical history;
• Requests for a pre-employment, post-offer medical examination or an independent medical examination to support fitness for duty.

Employers’ obligations do not stop there, however. The regulations require employers to direct health care providers not to collect genetic information, including family medical history, as part of a medical examination intended to determine an employee’s ability to perform his or her job. Employers also must take “additional reasonable measures within [their] control” if they learn that health care providers are requesting genetic information. Such reasonable measures may include no longer using the services of a health care professional who continues to request genetic information in connection with medical examinations after being told not to do so.

If you would like assistance in connection with GINA compliance, please contact the Seyfarth attorney with whom you work or any Labor and Employment attorney on our website.