The federal Genetic Information Nondiscrimination Act (GINA) prohibits discrimination against employees and job applicants on the basis of genetic information. GINA also limits employers’ ability to obtain genetic information and imposes obligations for keeping such information confidential. The EEOC recently issued regulations defining “genetic information” broadly to include not only genetic testing information, but also information about the manifestation of a disease in an individual’s family. The regulations specify that employers may not intentionally “request” such information, including by:
- conducting an Internet search in a way that is likely to result in the obtainment of genetic information;
- actively listening to third-party conversations or searching an individual’s personal effects for the purpose of obtaining genetic information; or
- requesting information about an individual’s current health status in a way that is likely to result in the obtainment of genetic information.
Employers may avoid liability if genetic information is obtained inadvertently, such as in response to a general health inquiry, or as a response to an otherwise lawful inquiry where the employer specified that genetic information should not be provided. Employers can take advantage of this protection by using the following “safe harbor” language in conjunction with requests for medical information:
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.
This language should be used when:
- making an otherwise lawful request for documentation to support an employee’s request for reasonable accommodation;
- requesting medical information from an individual under the FMLA or other state or federal law relating to the employee’s request for leave or return to work;
- seeking documentation to support a request for leave not governed by federal, state, or local laws, as long as the request complies with the Americans with Disabilities Act and other laws limiting an employer’s access to medical information.
The regulations also set out several exceptions to the prohibition on acquiring genetic information, as well as additional guidance on maintaining confidentiality of genetic information that the employer acquires.