Earlier this afternoon I received a voice message from an attorney in the EEOC General Counsel’s office, suggesting that our earlier post might have gotten things wrong when we said that employers should include the new GINA “safe harbor” language in their FMLA certification forms. So far we have only been able to exchange voice messages, but I will try to obtain further clarification from the EEOC and let you know what I learn. (And thanks to the folks at the EEOC for the call – we appreciate your guidance!)

In the mean time, here is the language from the rules – we still think it means that the safe harbor language should be included in your FMLA certification forms, but you can decide for yourself:

29 C.F.R. 1635.8 – Acquisition of Genetic Information.

(b) Exceptions. The general prohibition against requesting, requiring, or purchasing genetic information does not apply:

(1) Where a covered entity inadvertently requests or requires genetic information of the individual or family member of the individual.

(i) Requests for Medical Information:

(A) If a covered entity acquires genetic information in response to a lawful request for medical information, the acquisition of genetic information will not generally be considered inadvertent unless the covered entity directs the individual and/or health care provider from whom it requested medical information (in writing, or verbally, where the covered entity does not typically make requests for medical information in writing) not to provide genetic information.

 (B) If a covered entity uses language such as the following, any receipt of genetic information in response to the request for medical information will be deemed inadvertent: ‘‘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.’’

(D) Situations to which the requirements of subsection (b)(1)(i) apply include, but are not limited to the following:

(2) Where an employer requests medical information from an individual as required, authorized, or permitted by Federal, State, or local law, such as where an employee requests leave under the Family and Medical Leave Act (FMLA) to attend to the employee’s own serious health condition or where an employee complies with the FMLA’s employee return to work certification requirements; or

(3) Where the covered entity requests family medical history to comply with the certification provisions of the Family and Medical Leave Act of 1993 (29 U.S.C. 2601 et seq.) or State or local family and medical leave laws ….

Here is the EEOC’s commentary on the issue:

The Commission further recognizes that other federal, state, or local laws may allow covered entities to obtain medical information about employees. A covered entity that inadvertently receives genetic information in response to a lawful request for medical information under such a law would not violate GINA. For example, a covered entity might receive genetic information in connection with an employee’s request for FMLA leave to attend to the employee’s own serious health condition or in connection with the FMLA’s employee return to work certification requirements, even though an employee is not required to provide genetic information in either of these situations.10 Acquisition of genetic information in these circumstances will be considered inadvertent if the covered entity affirmatively warns individuals and health care providers from whom they are seeking medical documentation not to provide genetic information, or, in the absence of such a warning, where the request for medical information was not likely to result in the acquisition of genetic information.11 In response to two comments concerning the need for additional clarity with regard to how the exceptions to the prohibition against acquiring genetic information apply to information received pursuant to the FMLA, we have added the above examples to 1635.8(b)(1)(ii)(D)(2)(which was 1635.8(b)(1)(iv) in the proposed rule), as well as additional detail to the preamble’s discussion of the FMLA exception (1635.8(b)(3)), discussed below. See Comments of APA and Anil Chaudhry.

10 There is a separate exception for the acquisition of family medical history received from individuals requesting leave under the FMLA or similar state or local laws to care for a family member. This exception is discussed in detail below.

11 One commenter expressed concern that adding any language to the FMLA certification form would result in a statutory violation of the FMLA. See Comment of Illinois Credit Union League. The EEOC does not enforce the Family and Medical Leave Act and therefore has no authority to interpret it. We know of no reason, however, that informing a health care provider that genetic information should not be provided when certifying an employee’s own serious health condition would lead to a violation of the FMLA. Moreover, the notice informing applicants/employees and health care providers that they must not provide genetic information, including family medical history, to covered entities need not be made on the FMLA certification form itself, as long as it is provided in writing along with the form.