The Genetic Information Nondiscrimination Act (GINA) prohibits employers from requesting genetic information or discriminating against an employee or applicant on the basis of genetic information. The law applies to all public employers, private employers with 15 or more employees, employment agencies, and labor organizations.

Under the law, “genetic information” is defined to include information about an individual’s genetic tests, genetic tests of family members, and disease or disorder in the family.

This article series examines similarities and differences between the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). Here is an overview of how GINA interacts with these two laws.

GINA Notice and requests for medical information

Employers requesting medical information must direct the healthcare provider not to provide genetic information. An employer that receives genetic information in response to a request for medical information under FMLA or the ADA will be in violation of GINA unless the employer specifically directs the individual or health care provider not to provide genetic information.

In order to do so, the employer must provide a "safe harbor" statement accompanying the request for medical certification.

The GINA regulations provide model “safe harbor” language for the affirmative warning. According to the regulations, if an employer provides the safe harbor notice with the request for medical certification, any receipt of genetic information in response to the request will be considered inadvertent (and will not violate GINA).

The following is the model safe harbor statement provided in the regulations implementing GINA:

“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 employees or their family members. In order 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 an employer requests a medical exam, a fitness-for-duty exam, or medical information to support an employee’s request for reasonable accommodation, the GINA notice should be included with the request.

FMLA leave to care for family member

GINA provides a specific exception for employers requesting medical certification for FMLA leave to care for a family member. As a result, when requesting medical certification for FMLA leave to care for a family member, employers should include the following statement at the end of the model safe harbor language: “Please note that information about the health condition of your patient may be provided as needed to complete the certification request.”