Don't Let GINA Sucker Punch You When Requesting Medical Information

4/11/2012

It’s easy to understand one thing the Genetic Information Nondiscrimination Act does – it prohibits discrimination on the basis of one’s genetic history.  However, it also prohibits employers from requesting anything that could be construed to be “genetic information” on applicants, employees and their family members.  This prohibition on requesting genetic information covers post-offer/pre-employment medical exams, fitness-for-duty exams and FMLA-related requests, matters with which all employers routinely deal. 

GINA has a “safe harbor” provision, but it is narrower than you might think.  If an employer inadvertently requests genetic information, GINA is not violated.  However, if an employer receives genetic information in response to a legitimate request for medical information, and the information is not needed or related to the actual request, it generally will not be considered inadvertent unless the employer specifically told the provider not to supply genetic information.

In other words, there is no “presumption” of innocence when it comes to the receipt of genetic information.

How can you protect yourself from this trap?  The EEOC has developed the following model language to insert into any request for medical information (such as requests related to FMLA leave and requests for information related to an ADA accommodation) that an employer might make: 

The Genetic Information Nondiscrimination Act of 2008 prohibits employers and other entities covered by GINA from requesting or requiring genetic information of an individual or a 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 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.

Our advice to you – use this language, either in your form or in a cover letter!

Another rule to follow -- any request for medical information (whether FMLA or ADA-related) should be narrowly tailored to help avoid an overly broad response from a medical provider.  For example, if the request concerns a shoulder injury that could be covered under the ADA, you should not ask for or expect to receive information on the employee’s past cancer treatments.  The EEOC’s regulations state that a request for documentation supporting a reasonable accommodation “is lawful only when the disability and/or the need for accommodation is not obvious; the documentation is no more than is sufficient to establish that an individual has a disability and needs a reasonable accommodation; and that the documentation relates only to the impairment that the individual claims to be a disability that requires reasonable accommodation.”

Bottom line:  Use the EEOC’s model language when making any type of written request for medical information, and make sure any request for medical information is as narrow as possible.