Employers should note that Title II of the federal Genetic Information Nondiscrimination Act(GINA) prohibits the use of genetic information in employment, restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits the disclosure of genetic information.
FAQs issued by the U.S. Equal Employment Opportunity Commission (EEOC) provide guidance for employers to help them comply with GINA when they request medical certification from an employee taking FMLA leave. Specifically, when an employer makes a request for health-related information, it should warn the employee and/or health care provider from whom it requested the information not to provide genetic information (see FAQ #17 for suggested language for this warning). According to the EEOC, if this type of warning is provided, any resulting acquisition of genetic information will be considered inadvertent, and therefore not in violation of GINA. In other words, use of this type of warning creates a ‘safe harbor’ for employers who receive genetic information in response to a request for health-related information.
For More Information
Additional information on the new FMLA forms is available from the U.S. Department of Labor. The EEOC provides further guidance on genetic information discrimination. You may also visit our sections on the Family and Medical Leave Act and Health Coverage and GINA.