GINA: At least it comes with its own warning language

The final rule for implementation of the Genetic Information Nondiscrimination Act (GINA) published this week by the Equal Employment Opportunity Commission. While much of the talk about GINA has been that it is not likely to have a great impact on employers (the law has been likened to a solution looking for a problem), it is important to note that GINA will impact the manner in which health care certifications are obtained under the Family and Medical Leave Act (FMLA).

GINA prohibits the gathering, requesting, requiring, or acquisition of genetic information (as defined by Section 1635.3(c) of the final rule) unless an exception applies. One exception is where the information is inadvertently (that's an important term) received as the result of a lawful request for medical information--such as when an employer requests completion of a health care provider certification form for purposes of evaluating the granting of FMLA leave.

However, an employer who receives genetic information by way of an FMLA leave request does not automatically get to avail itself of this safe harbor provision. According to the final rule, receipt of genetic information through a lawful request for medical information is only "inadvertent" if the individual and/or health care provider is told:

• not to provide genetic information
• in a communication that is in writing or verbal (where the employer does not typically make requests for medical information in writing)

The final rule provides suggested language that can either be incorporated into a cover letter provided to the employee at the time FMLA leave is discussed or that can be included on the employer's FMLA certification forms. That language is as follows:

The Genetic Information and 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.

It is worth noting that this warning (or something similar) is mandatory in all cases where a covered entity (such as an employer) is requesting a health care provider to conduct a medical examination on the covered entity's behalf.

Before making a blanket change to all your FMLA certification forms, keep this in mind: in some situations, such as where an employee is requesting leave to care for a seriously ill family member, it may be necessary for the health care certification form to disclose genetic information. According to the preamble to the final rule, this type of disclosure is not inadvertent, but it is considered an exception to GINA's prohibitions. In other words, if you are providing FMLA paperwork under this circumstance, the warning listed above is not necessary.