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New Year's Resolution for Employers:  Revise Requests for Medical Information to Include GINA Language

 The Genetic Information and Nondiscrimination Act (GINA) prohibits discrimination based on genetic information and restricts employers' collection and disclosure of such information. "Genetic information" includes not only the results of an individual's or family member's genetic tests, but also an employee's family medical history. GINA compliance may not be on employers' "radar screens" because they do not believe they collect or make use of genetic information.

Employers do routinely request medical information in connection with federal and state family leave and disability laws, however. GINA does not prevent these requests, but the EEOC has published guidance recommending that when an employer makes a request for medical information, it should warn the employee and/or health care provider that genetic information should not be provided.

We recommend that you include the following EEOC "safe harbor" language in all requests for medical information:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA from requesting or requiring genetic information of employees or their family members. In order to comply, we ask 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 or family member's genetic tests, the fact that an individual or 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.

If this warning is given, any resulting receipt of genetic information will be considered inadvertent and not in violation of GINA. For more information on GINA or the safe harbor language, contact us or visit the EEOC online.