Providing Notice Under The New GINA Law
In November 2010, the EEOC issued final regulations implementing the employment provisions (Title II) of the Genetic Information Nondiscrimination Act (GINA). GINA prohibits the use of genetic information in decision making about health insurance and employment and restricts employers from acquiring and disclosing genetic information. The regulations provided model language for employers to use when requesting medical information from employees in order to avoid the unlawful acquisition of genetic information. There are two separate notices provided to employers: the discretionary safe harbor notice and the mandatory notice.
Discretionary safe harbor notices can be used to help employers fit within the inadvertent acquisition exception when seeking medical information from employees or their doctors. For example, an employee who is seeking time off under FMLA could be given an addendum to the current documents which includes language stating that the employer is asking that the employee or health care provider’s response not include genetic information.
The mandatory notice is required when an employer requests medical information from the employer’s physician such as a “fitness for duty” examination. The physician must be told by the employer to not collect the genetic information. If the physician collects genetic information despite the notice, the employer must take additional steps which include not using a physician that still requests genetic information.
For additional background information on GINA, please visit http://www.eeoc.gov/laws/regulations/gina-background.cfm.
To read the GINA Title II Final Regulations, please visit http://www.federalregister.gov/articles/2010/11/09/2010-28011/regulations-under-the-genetic-information-nondiscrimination-act-of-2008