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by Frank P. Spada Jr., Esq.

Final regulations for implementing the Genetic Information Nondiscrimination Act (GINA) took effect on Jan. 10, prohibiting employers from gathering genetic information when seeking to certify an employee’s own serious health condition for leave under the FMLA.

GINA regulations apply to public and private employers with 15 or more workers. That means employers subject to the FMLA—those with 50 or more workers within 75 miles—are subject to GINA regulations.

Certification under the FMLA

Under the FMLA (and similar state laws) employers routinely ask an employee’s health care provider to complete a certification form justifying FMLA leave requests. That could create a GINA compliance problem, because the certification might reveal genetic information about the employee.

However, the EEOC has created a “safe harbor” for employers if they tell health care providers not to divulge protected genetic information. The commission has created model notice language (see box below) to include in all certification requests sent to health care providers.

Employers can use this model notice in any situation in which medical information is requested, including situations not covered by the FMLA.

Note: Do not use the model language when seeking FMLA certification of a serious health condition involving an employee’s family member. GINA provides 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.

What employers should do

There are obvious precautions that an employer should take to comply with GINA.

For instance, genetic information—like all employee medical information—cannot be maintained as part of an employee’s personnel file.

Furthermore, employers that do obtain genetic information can disclose it only under certain limited circumstances:

  • At the request of an employee or his or her family member
  • To an occupational or other health researcher conducting research in compliance with federal regulations
  • In response to a court order, upon prior notification to the employee or family member
  • To government officials investigating GINA compliance
  • In connection with an employee’s compliance with leave certification requirements
  • 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.

You can reduce the risk of inadvertently obtaining genetic information by training managers and supervisors about GINA. Best practice: Have HR handle the details of an employee’s medical condition so managers never have a chance to learn prohibited information.

That also ensures consistent application of company policies.

At a minimum, you should:

  • Post a new copy of the EEOC’s “EEO is the Law” poster that includes GINA information. You can download a free copy of the poster at www1.eeoc.gov/employers/poster.cfm.
  • Communicate to all health care practitioners who conduct medical examinations for you that they should not disclose genetic information. Give health care providers written instructions on how to gather and protect genetic information.

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Author: Frank P. Spada Jr. is a partner with Pepper Hamilton LLP. He represents management in all areas of employment law and labor relations and has been doing so since 1986. He  can be reached at spadaf@pepperlaw.com or (609) 951-4150.

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