This article first appeared in the May/June 2012 issue of Staffing Now, the North Carolina Association of Staffing Professionals (NCASP) Ezine.
The Genetic Information Nondiscrimination Act of 2008 ("GINA") makes it illegal for employers (that employ 15 or more employees) to discriminate against applicants or employees because of their "genetic information." Under GINA, employers are prohibited from requesting genetic information from applicants or employees and cannot use genetic information in making employment decisions. The Equal Employment Opportunity Commission is responsible for enforcing GINA’s anti-discrimination provisions.
Nearly all businesses have policies and procedures in place that govern medical leave, medical examinations, disability and reasonable accommodation requests. However, many of these policies and medical leave forms run afoul of GINA by inadvertently requesting information that contains “genetic information” as defined by GINA. In order to limit liability under GINA, every employer should adopt the safe harbor language set forth in the federal regulations. The following language should be incorporated into your employee handbook and medical leave forms (including all FMLA forms):
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by law.
To comply with this law, we are asking that you not provide any genetic information when responding to [a] [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 than 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.
This written warning creates a “safe harbor” for employers who inadvertently receive genetic information. If the employer previously provided this warning to the applicant or employee then the employer will not be found to be in violation of GINA. Consequently, employers that adopt this language now may avoid unnecessary litigation and future legal expenses.
Jill Benson is an experienced labor and employment litigator who represents employers in a wide range of labor and employment issues, including: Wage and hour claims (Fair Labor Standards Act and state wage and hour laws); Leave of absence issues, including Family Medical Leave Act, military leave and paid time off concern; Anti-discrimination disputes, including those involving Americans with Disabilities Act claims, as well as claims involving alleged discrimination on the basis of race, gender, religion or age; Trade secrets and employee non-compete cases; and Whistleblower retaliation claims. She practices in Womble Carlyle’s Greensboro, N.C. office.
This document is intended as an informational reminder and does not constitute legal advice. If you have any questions or would like to discuss a particular situation, please contact Womble Carlyle Sandridge & Rice, LLP. The purpose of this article is to provide general information about significant legal developments and should not be construed as legal advice on any specific facts and circumstances.