Pepper Hamilton LLP
Frank P. Spada, Jr.
March 15 2011
The Equal Employment Opportunity Commission (EEOC) finalized its regulations for the Genetic Information Nondiscrimination Act (GINA) on November 9, 2010. These regulations took effect on January 10, 2011 and they prohibit employers from gathering genetic information when certifying an employee’s own serious health condition for leave under the Family and Medical Leave Act (FMLA). The GINA regulations apply both to public and private employers with 15 or more workers. Accordingly, those employers subject to the FMLA, which covers employers with 50 or more workers within a 75-mile radius, all would be subject to the GINA regulations.
Certification Under the FMLA
Pursuant to the Family and Medical Leave Act or similar state laws, employers as a matter of course require that an employee’s health care provider complete certification forms to justify leave requests.
The EEOC regulations provide essentially a “safe harbor” for employers and suggest a model notice that should be included in all certification requests to health care providers for medical information to support an employee’s own serious health condition under the FMLA. The following is suggested as model language for employers to use:
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.
The model notice is applicable to any situation in which medical information is requested, including those situations not covered by the FMLA.
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