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GINA Safe Harbor Provision

Published by on July 11, 2011

The final rule implementing Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) contains a safe harbor provision that employers may find helpful.  More after the break. Title II of GINA prohibits employers from acquiring genetic information about their employees and their families.  This can typically occur when the employer is engaging in […]

The final rule implementing Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) contains a safe harbor provision that employers may find helpful.  More after the break.

Title II of GINA prohibits employers from acquiring genetic information about their employees and their families.  This can typically occur when the employer is engaging in the interactive process with respect to a reasonable accommodation or when evaluating an employee’s request for FMLA leave.  The final rule provides the following language to include in any request for health-related information from an employee to prevent disclosure of genetic 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. 

29 CFR § 1635.8(b)(1)(i)(B). 

An employer who includes this language in writing (or verbally if the employer does not normally make these requests in writing) accompanying a request for health-related information will not be in violation of GINA if the request results in acquisition of genetic information.  Such an acquisition will be deemed “inadvertent” under one of the exceptions to GINA’s prohibition against the acquisition of genetic information.  Even if the employer fails to provide the warning, a request that results in acquisition of genetic information may still be considered “inadvertent” if the employer can establish that its request was “not likely to result in a covered entity obtaining genetic information.” 

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