The federal Genetic Information Non-Discrimination Act (GINA) and California law prohibit employers from obtaining certain genetic information concerning job applicants and employees. Although many medical providers are careful not to provide this information, it is nevertheless possible that a medical provider may not be aware of the law and may provide to the employer information that the employer is otherwise prohibited from obtaining. The Equal Employment Opportunity Commission has advised that an employer will not be held responsible for an inadvertent disclosure violation if the employer has included in its communications with the medical provider certain “safe harbor” language advising the medical provider not to provide information that is prohibited under GINA. The “safe harbor” language is as follows (which we have modified slightly to incorporate California law):
The Genetic Information Nondiscrimination Act of 2008 (GINA) and California law prohibit 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 these laws. To comply with the 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 and/or California law, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact than 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.
It is generally advisable to include this safe harbor language in any written communications or documentation in which the employer is seeking from the medical provider any medical information concerning an applicant or employee, including but not limited to, documentation relating to pre-employment medical exams, requests for medical certifications or releases to return to work, communications with medical providers in connection with requests for reasonable accommodation, family medical leave medical certification forms, pregnancy disability medical certification forms, and communications with and/or forms provided to medical providers relating to workers’ compensation injuries or disability retirement matters.