The revised regulations for the Family and Medical Leave Act (FMLA) require that records or certifications submitted for FMLA leave that contain genetic information and family medical history are subject to the confidentiality requirements of the Genetic Information Nondiscrimination Act of 2008 (GINA).  Click here for a link to GINA’s confidentiality regulations (29 C.F.R. §1635.9).

  • “Genetic information” includes information about an employee’s genetic tests and services.

 

  • GINA covers an employee’s family medical history, that is, information regarding any disease or disorder that has been or could reasonably be diagnosed by a health care professional in an employee’s family member.  An employer will receive this type of information when an employee requests FMLA leave to care for a family member with a serious health condition or for a service member with a serious injury or illness, and may receive it as part of a certification for the employee’s own serious health condition (i.e., the health care provider reports that employee’s parent also had heart disease).

 

 

FMLA documents that contain genetic information or family medical history must be treated as confidential and maintained in a medical file that is separate from an employee’s personnel file.   Additionally, these documents may not be disclosed by the employer, except in limited circumstances such as a disclosure made in support of an employee’s request for FMLA leave.  The penalties for violation of GINA’s confidentiality requirements are quite severe and could be in addition to penalties under the FMLA.  As such, it is important for employers to comply with GINA’s confidentiality requirements.

Employers should try to avoid acquiring genetic information about the employee when the employee is seeking FMLA leave for his or her own serious health condition (as opposed to that of a family member or service member).  To minimize this possibility, an employer should include certain “safe harbor” language with the certification form to be completed by the employee’s health care provider for FMLA leave (either in a cover letter to the form, a label on the form, or as an attachment to the form) and when requesting health information from an employee for other reasons, such as a fitness for duty evaluation or to support an employee’s request for non-FMLA leave under the employer’s policies or for an accommodation under the Americans With Disabilities Act.  Click here for the safe harbor language.

The safe harbor language should not be included with the health care provider certification form given to an employee seeking FMLA leave for a family member or service member because the employer will need family medical history information regarding that individual to determine if the employee qualifies for FMLA leave.