Complying With GINA's Nondiscrimination Rules
One of the newer federal labor laws that employers may be subject to is the Genetic Information Nondiscrimination Act of 2008 (GINA). Generally, GINA prohibits employers with 15 or more employees from using individuals' genetic information when making hiring, firing, job placement or promotion decisions.
The inadvertent receipt of genetic information when employers request medical information to document an employee's need for leave under the Family and Medical Leave Act (FMLA), the employer's leave policies, or disability leave, can put employers in violation of this Act through no fault of their own. The Equal Employment Opportunity Commission (EEOC) has addressed this concern through the creation of safe harbor language.
Safe Harbor Language
The EEOC created a warning for employers to provide when requesting employees' medical information. The provision warns employees and/or health care providers from whom you are requesting medical information not to provide genetic information. By incorporating this warning into your request for employees' medical data, any resulting acquisition of genetic information will be considered inadvertent, and therefore not in violation of GINA.
The warning may be in writing or verbal, if you typically do not make such requests in writing. You can use your own wording for the warning, but the EEOC has simplified matters by providing the following sample language:
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.
What if you don't use warning language and you receive genetic information that you didn't request? In the absence of a warning, an employer may establish that the receipt of genetic information was inadvertent if the request for medical information was not made in a way that was likely to result in the acquisition of genetic information.
- Example. An employer who asks an employee to provide a doctor's note explaining a five-day absence will not violate GINA if the doctor includes the family medical history taken as part of the employee's medical examination. This is true even if the employer has not warned the employee or the doctor against providing genetic information.
For more information regarding how GINA specifically impacts small businesses, visit the EEOC's website.
- Take Action. If you're subject to GINA, take the time now to incorporate the sample safe harbor language into your standard paperwork for requests for employees' medical information. This simple step can keep you from running afoul of the genetic nondiscrimination laws.