Should we add GINA warnings to our FMLA forms?
Q: I understand that the U.S. Equal Employment Opportunity Commission (EEOC) believes that medical certification forms may elicit genetic information in violation of the Genetic Information Nondiscrimination Act (GINA).
A: The right procedure to follow depends on the type of medical certification you are using. Here’s a guide:
1. Don’t Ask: For any kind of medical exam of a worker, you must instruct the health care provider not to collect genetic information, such as family medical history, in order to determine the worker’s ability to do the job. On our Model Form, “Fitness-for-Duty Report” (1880), we’ve inserted this simple instruction at the top of the form that the health care provider completes. However, we haven’t gone further by inserting the EEOC’s long-winded GINA safe-harbor warning because our form focuses purely on the job (not the medical condition) and therefore doesn’t seem likely to elicit any kind of genetic information.
2. Don’t Ask or Tell: For medical certification of the employee’s own serious health condition, you should give the EEOC’s safe-harbor warning if the certification seems likely to elicit genetic information such as family medical history. Although we believe the EEOC is being overly cautious when its regulations indicate that FMLA medical certifications may elicit genetic information, the safest approach is to give the warning (telling the health care provider not to request any genetic information from the worker or share it with the company). Here’s the text: “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.” We suggest attaching this warning to the front of the FMLA medical certification form (WH-380-E).
If the employee’s leave is potentially covered by the California Family Rights Act (CFRA), we also recommend that you mark Question #4 on the form (medical facts) as “Optional—Do not complete unless employee consents” and/or write on the cover page, “For leaves covered by the California Family Rights Act (CFRA), please do NOT identify the serious health condition involved unless the employee gives you permission to do so. See 2 CCR 7297.0(a)(2).”
3. Don’t Worry: For medical certification of a family member’s serious health condition when the employee asks for leave under the FMLA, state leave laws, or company policy, the general prohibition against requesting genetic information doesn’t apply, so there’s nothing to worry about on this score. (See the EEOC’s regulations at 29 CFR 1635.8(b)(3).)
If you have any questions about applying these guidelines, contact your Vigilant staff representative.