Earlier this week, I offered some initial thoughts about the new GINA regulations that will become effective in January 2011. After time this week to digest the regulations and review the analysis of others, here is the bottom line for employers in Connecticut.
- These regulations — as with GINA itself — apply only to employers with 15 or more employees. Employers under that size in Connecticut must still comply with the state obligations not to discriminate based on genetic information.
- If there is one thing that all employers should know is that the new regulations provide a safe harbor of sorts to employers who inadvertently received genetic information when that information was not sought. Therefore, the EEOC strongly suggests that the following model language be used on any requests for medical information
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."
As Brian Hall notes in his blog, its a mouthful and it’s possible that an employer could use less language, but why? The EEOC has given its blessing to this language. But as Hall notes, does this language need to be used in all workers compensation proceedings or independent medical exams conducted through that process? That remains an open question.
So where should you be adding this language? To FMLA certification forms, for one. But doing that can even lead to confusion as noted in the FMLA Insights blog.
Unfortunately, when it comes to FMLA leave for a family member, simply inserting the above language into a certification form may be misleading. … GINA includes an additional exception that allows employers to ask for "family medical history" to comply with the FMLA. Consequently, when seeking leave for a family member’s serious health condition, it may be necessary to modify the language above to make it clear that "family medical history" IS required, at least to the extent necessary to make the medical certification complete and sufficient under the FMLA.
- Employers who use standard FMLA forms from the Department of Labor may therefore want to consider adding the language in an addendum or attachment to each form. Other forms, such as for pre-employment medical examinations may similarly need to be modified.
- What else do you need to know? Be careful searching the Internet looking for information on employees. As I noted in a prior post, employers may not “request, require or purchase genetic information of an individual or family member of the individual,” with rare exceptions.
Internet searches “likely to result in [an employer] obtaining genetic information” are covered. But inadvertent discovery of genetic information likely isn’t enough. So if you Google an applicant’s name for legitimate job related purposes and stumble on the information, that’s probably not covered. Similarly if you already have access to someone’s social networking page by being their "friend" and inadvertently stumble onto genetic information, that too isn’t covered. But if you’re looking for genetic information, that’s forbidden.
The best summary of the regulations I’ve seen so far has been posted here. But the bottom line is that employers need to take the next 60 days to educate their staff about the new regulations. Even employers in Connecticut that have long dealt with the prohibitions, need to adapt and respond to these new regulations.