Recently, the U.S. Department of Labor published new FMLA forms with the new expiration date of May 31, 2018. The new forms remain essentially the same as the previous forms. The only notable change is that a reference to the Genetic Information Nondiscrimination Act (“GINA”) was included in all certification forms except the certification form for qualifying exigency for military family leave.
Title II of GINA prohibits discrimination against employees, applicants, and former employees on the basis of their genetic information in all aspects of employment. That means that it is unlawful for an employer to consider an employee, applicant, or former employee’s genetic information when making employment decisions. GINA also makes it unlawful for employers to acquire genetic information of an individual or family member of the individual with certain exceptions. EEOC’s guidance explains the exceptions to this prohibition as follows:
- Inadvertent acquisitions of genetic information do not violate GINA, such as in situations where a manager or supervisor overhears someone talking about a family member’s illness.
- Genetic information (such as family medical history) may be obtained as part of health or genetic services, including wellness programs, offered by the employer on a voluntary basis, if certain specific requirements are met.
- Family medical history may be acquired as part of the certification process for FMLA leave (or leave under similar state or local laws or pursuant to an employer policy), where an employee is asking for leave to care for a family member with a serious health condition.
- Genetic information may be acquired through commercially and publicly available documents like newspapers, as long as the employer is not searching those sources with the intent of finding genetic information or accessing sources from which they are likely to acquire genetic information (such as websites and on-line discussion groups that focus on issues such as genetic testing of individuals and genetic discrimination).
- Genetic information may be acquired through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace where the monitoring is required by law or, under carefully defined conditions, where the program is voluntary.
- Acquisition of genetic information of employees by employers who engage in DNA testing for law enforcement purposes such as a forensic lab or for purposes of human remains identification is permitted, but the genetic information may only be used for analysis of DNA markers for quality control to detect sample contamination.
The term “genetic information” means information about:
- An individual’s genetic tests;
- The genetic tests of that individual’s family members;
- The manifestation of disease or disorder in family members of the individual (family medical history);
- An individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual; or
- The genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.
Among others, an employer with 15 or more employees is covered by GINA. Employers must treat genetic information as a confidential medical record and keep genetic information in a separate medical file. Lastly, employers are required to display a notice regarding GINA in a conspicuous location in the workplace where notices to applicants and employees are customarily posted.