The United States Department of Labor (DOL) has recently updated its standard Family and Medical Leave Act (FMLA) forms in an effort to comport with the Genetic Information and Nondiscrimination Act (GINA), among other federal laws. GINA, one of the lesser-known anti-discrimination statutes, prohibits the use of genetic information in making employment decisions, restricts employers from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.
Under GINA, genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about family medical history. GINA protects employers from inadvertent violations by suggesting that all medical inquiries from employers include the following disclaimer:
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.”
Under the law, if the above disclaimer or “safe harbor” language is included on written requests for employee medical information, any receipt of genetic information in response to the request will be deemed inadvertent and not in violation of the statute.
The new FMLA forms include an abbreviated version of the safe harbor language. For example, the updated Certification of Health Care Provider for Employee’s Serious Health Condition instructs health care providers to “not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), genetic services, as defined in 29 C.F.R. § 1635.3(e), or the manifestation of disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b).”
Copies of the updated forms can be found here.
In addition to using the updated FMLA forms, covered employers should annually review leave policies (including FMLA) and ensure that all standard HR forms requesting employee health information include the GINA safe harbor language.