By Patrick M. Watts
The Genetic Information Non-Discrimination Act of 2008 (“GINA”) prohibits employers from discriminating against employees because of genetic information related to the employee. GINA makes it unlawful for employers to “request, require, or purchase genetic information.” As one exception, GINA states that an “inadvertent” request does not violate this prohibition against requesting genetic information.
Recently, the Equal Employment Opportunity Commission published the final regulations interpreting GINA. The final regulations provide additional explanation regarding what constitutes an inadvertent request. The final regulations state that a request or acquisition of genetic information “will not generally be considered inadvertent unless the covered entity directs the individual and/or health care provider…not to provide genetic information.” 29 C.F.R. §1635.8. Further, the final regulations go on to specifically state the requirement for an inadvertent disclosure statement applies to (1) requests for medical information to support a request for a reasonable accommodation and (2) requests for medical information “as required, authorized, or permitted by Federal, State, or local law, such as where an employee requests leave under the Family and Medical Leave Act…” 29 C.F.R. §1635.8.
As a result, in order to comply with GINA and protect against inadvertent disclosures, employers should conduct a review of their current procedures regarding requests for medical information. In doing so, employers should consider whether to modify their procedures, including correspondence to employees, to exclude, specifically, genetic information. If you need any assistance in your leave of absence administration, please feel free to contact us.
