Employers should ensure that their managers and human resources personnel are familiar with the requirements of the Genetic Information Nondiscrimination Act of 2008 (“GINA”). The EEOC issued final regulations, effective January 10, 2011, clarifying this recent addition to the growing number of statutes protecting employees with which employers must comply. GINA expanded the protections under Title VII of the Civil Rights Act, prohibiting employers from engaging in all forms of discrimination in regard to hiring, discharge, compensation, terms, conditions, or privileges of employment based upon genetic information. Requesting, requiring or purchasing genetic information about employees or their families is prohibited, except in limited circumstances, under GINA.
New warning/notice language is mandatory when requesting that a health care professional conduct an employment-related medical examination on an employer’s behalf, including when an employer requests an individual’s medical information as permitted when administering requests for FMLA leave. The final regulations provide the following “safe harbor” warning/notice language for employers to use when requesting 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 “safe harbor” provision should now be included in all requests to a health care professional conducting an employment-related medical examination on an employer’s behalf. For additional information concerning your duties and restrictions under GINA, contact John C. Schrier at 231-722-5401.