Bricker & Eckler LLP
Cavett R. Kreps and James G. Petrie
May 23 2011
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other covered entities from discriminating based on genetic information. GINA also prohibits covered entities from requesting, requiring or purchasing genetic information of an applicant or employee. “Genetic information” is broadly defined by GINA and includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that such genetic services were sought, and genetic information of a fetus carried by an individual or an individual’s family member.
If an employer requests medical information from an employee (or his/her health care provider) and the employer receives genetic information in addition to the requested medical information, the employer may be liable under GINA. However, GINA’s regulations provide a safe harbor for employers that inadvertently receive otherwise protected genetic information. Specifically, receipt of genetic information from an employee (or his/her health care provider) may be considered “inadvertent,” and thus, not a violation of GINA if the employer instructs employees and/or health care providers from whom medical information is sought that the employee is not seeking and should not be provided genetic information.