Ferrara Fiorenza P.C.
 

Use GINA’s “Magic Language” When Requesting Employee Health Information

As most employers are aware, the Genetic Information Non-discrimination Act (GINA) became law in 2008.  The implementing regulations were later issued in November of 2010.  Generally, the law:  1) prohibits the use of genetic information about employees in any employment decisions; 2) restricts employers from requesting, requiring, or purchasing genetic information about employees; and 3) strictly limits the disclosure of such genetic information if an employer inadvertently receives it. 

One way that an employer can inadvertently receive this genetic information is by requesting information from an employee or an employee’s doctor about the employee’s current health status.  Employers should be aware that GINA creates a “safe harbor” for those who inadvertently obtain this information as a result of such requests.  In order to take advantage of this safe harbor provision, however, all such requests should 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. 

We recommend that this so called “magic language” be used anytime an employer requests information from an employee or an employee’s doctor under Family Medical Leave Act (FMLA) (i.e., for medical certification purposes), and any other communications regarding an employee’s health for purposes of determining whether an employee has a disability and/or whether there are reasonable accommodations that the law would require the employer to provide. 

If you have any questions regarding the foregoing, please feel free to contact us.

 

Excerpted from the June 2011 edition of "Employment Law Matters".  To view the entire newsletter, please click here.