The U.S. Department of Labor (DOL) has issued new forms for employers to use in connection with employee leave under the Family and Medical Leave Act (FMLA). The new forms, which replace the forms that expired in February, are essentially unchanged, with one notable exception. The new forms now directly reference the Genetic Information Nondiscrimination Act (GINA), which prohibits employers from requesting or requiring disclosure of genetic information of an employee or family member of an employee, except under certain circumstances. GINA also creates a safe harbor from liability for employers that include the following language in any request for medical information about an employee:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or 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’s 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.

 

If an employer that includes the safe harbor language in a request for medical information subsequently receives genetic information, the employer’s receipt will be deemed inadvertent, shielding the employer from liability.

In the DOL’s new forms, however, the DOL declined to incorporate the GINA safe harbor language. Instead, the DOL adopted a watered-down version of the above that may not provide much direction to healthcare providers. Specifically, the DOL asks health care providers not to “provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), genetic services, as defined in 29 C.F.R. § 1635.3(e), or the manifestation of disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b).” Notwithstanding the DOL’s decision to forgo adopting the GINA safe harbor language, employers should consider modifying the DOL’s forms to include it in order to minimize GINA liability.

Attorneys in Ballard Spahr’s Labor and Employment Group can assist clients in FMLA compliance and other workplace issues. If you have questions, please contact Brian D. Pedrow at 215.864.8108 or pedrow@ballardspahr.com, or the member of the Group with whom you work.


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