GINA "safe harbor" language for FMLA forms ... is a "MUST ADD"
FMLA forms were developed before recent developments in the federal Genetic Information Nondiscrimination Act (“GINA”). GINA prohibits employers from discriminating based on genetic information and from gathering such information about an employee and/or his/her family member. Recent GINA regulations help provide employers with a potential “safe harbor” from liability under the law if certain disclosures are made to employees and their health care providers. Numerous legal commentators recommend that employers add the GINA safe harbor language to their FMLA forms. Below is the language recommended:
Employee’s Serious Health Condition – 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.
Family Member’s Serious Health Condition – 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 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. Please provide medical history information regarding your patient only to the extent necessary to fully respond to all relevant items below.
Note: This language should be added to the FMLA medical certification form or other written documentation that accompanies the form, and should be used when a fitness for duty certification is requested.