ADA Tip: Remember To Include GINA Safe Harbor Language When Requesting Medical Information For Purposes Of Evaluating An Accommodation Request
July 5, 2017
Authored by: Christy Phanthavong
Although employers are generally prohibited from obtaining medical information about their employees, they are permitted to do so in certain circumstances, including when such information is necessary to evaluate a job applicant’s or employee’s request for an accommodation under the Americans with Disabilities Act (ADA).
When obtaining medical information as part of the ADA interactive process, however, employers must keep in mind the provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA). Specifically, GINA protects applicants and employees from discrimination on the basis of genetic information and prohibits covered employers from using genetic information when making decisions about employment. Accordingly, GINA generally restricts employers from requesting genetic information, unless one of six narrow exceptions applies.
Importantly, intent is not a required element for a GINA violation. That is, an employer can be found in violation of GINA if the employer obtains genetic information despite not requesting or having any intent to receive such information.
Fortunately, “safe harbor” language can be used to protect an employer against an inadvertent GINA violation. The following language should be included in any communications in which medical information is requested:
Note: The information we are seeking relates only to any condition you may have that affects your ability to perform your essential job functions. Please note that 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 and your medical provider not provide any genetic information when responding to this request for medical information.
This recommendation applies to any requests for medical information for purposes of evaluating an accommodation request under the ADA.
Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers assess their ADA obligations. If you or your organization would like more information on this or any other employment issue, please contact an attorney in the Labor and Employment practice group.