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Client Alert from the Labor and Employment Group - December 2010

New GINA Regulations May Necessitate Revisions to Employer Medical Certification Forms

By Jeremy J. Sharp

On November 9, 2010, the Equal Employment Opportunity Commission ("EEOC") issued final regulations under the Genetic Information Nondiscrimination Act ("GINA"). The new regulations impose additional requirements upon employers requesting medical certifications with respect to leave of absence or accommodation requests (including those under the Family and Medical Leave Act ("FMLA")). The regulations are effective January 10, 2011.

GINA generally prohibits employers from obtaining genetic information regarding employees. One of the important exceptions to this general prohibition applies where the acquisition of genetic information is inadvertent, such as by accidentally overhearing employee conversations or where such information is disclosed in response to an ordinary expression of concern regarding an employee's health. However, where an employer requests medical information or certification, the regulations clarify that the receipt of genetic information will not be considered inadvertent unless the employer directs the party from whom the information is requested not to provide genetic information. The new regulations contain optional safe harbor language to be used for this purpose.

While the U.S. Department of Labor ("DOL") has provided model medical certification forms, it is unclear whether or not use of the DOL model forms will satisfy GINA's inadvertent acquisition rule. As a result, employers should review and update all medical certification forms to ensure that they comply with the new regulations, as well as other applicable laws, in advance of January 10, 2011. Employers should also consider utilizing the model disclosure language in other requests for medical information.

If you have any questions regarding the language to be used in medical certifications, requests for medical information, GINA, or FMLA, please contact a member of Walter & Haverfield's Labor and Employment Law Group.

Link to new GINA Regulations: http://www.federalregister.gov/articles/2010/11/09/2010-28011/regulations-under-the-genetic-information-nondiscrimination-act-of-2008

The information in this Client Alert is a summary of often complex legal issues and may not cover all of the "fine points" of a specific situation or court jurisdiction. Accordingly, it is not intended to be legal advice, which should always be obtained in consultation with an attorney. The lawyers in Walter & Haverfield's Labor and Employment Law Group will be pleased to assist with any questions about this new development in the law.