Client Alert: Avoiding Discrimination Claims under the Genetic Information Nondiscrimination Act (GINA)

5.3.11

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. However, there are some occasions when an employer must request health information, such as to support a request for medical leave or a reasonable accommodation, when it may obtain genetic information in response.

In order to avoid this, the new GINA regulations suggest providing the following warning to employees or health care providers when making such a request:

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 this warning is provided, any resulting acquisition of genetic information will be considered inadvertent, and therefore not in violation of GINA. Employers should consider adding this warning to any forms that may request medical information, including leave forms, pre-employment forms, or reasonable accommodations request forms.

Each case a business or individual may face is unique and may require legal advice. If you would like additional information regarding the content of this article, please contact a member of our Labor and Employment Department.