The Employer's Legal Resource: Employers' Medical Releases Must Comply with GINA and the ADA

11.03.14

Often, an employer needs access to certain medical records of an employee such as to evaluate the reasonableness of an employee's requested job accommodation or to certify an employee's request for FMLA leave for a serious illness. Employers must tread carefully when requesting and reviewing an employee's health information. Overly broad releases and requesting irrelevant information can get employers in hot water under the ADA and GINA.

The Genetic Information Nondiscrimination Act prohibits the use of genetic information in employment, restricts employers from requesting, requiring, or purchasing genetic information, and strictly limits the disclosure of genetic information. Employers cannot request or receive information regarding an employee's genetic information, including the employee's family medical history, and cannot base employment decision on an employee's genetic information. Examples of genetic information include tests to determine whether an individual is predisposed to a certain types of cancer. Genetic information does not include, for example, tests to determine an individual's cholesterol level. Similarly, the Americans with Disabilities Act prohibits employers from requesting disability-related health information that is not job-related or consistent with business necessity.

Recently, the EEOC sued Cummins Power Generation, a Minnesota employer, for terminating an employee who refused to sign and submit an overbroad medical release to a healthcare provider for a fitness for duty examination. The EEOC alleged Cummins, in violation of GINA and the ADA, sought a release that was not job-related or consistent with business necessity and would have resulted in the disclosure of family medical history. According to the EEOC, "Cummins had an obligation to request only those medical records and information that actually pertained to that issue."

Fortunately, employers can take steps to ensure that their medical releases and fitness for duty examinations comply with GINA and the ADA. Under the ADA, employers may require an employee to undergo a fitness for duty examination to determine if the employee can safely perform the essential functions of the job. However, the examination must be job-related and consistent with business necessity. The examination cannot seek records or health history unrelated to whether the employee can perform his job.

Employers should also take note of GINA's "safe harbor" provision that protects them from mistakenly receiving an employee's genetic information. When an employer makes a request for health-related information (e.g., to support an employee's request for reasonable accommodation under the ADA or a request for sick leave or FMLA leave), it should warn the employee and/or health care provider from whom the information is requested not to provide genetic information. The Department of Labor has drafted a GINA "safe harbor" statement that should be included with all requests for health-related information. The draft "safe harbor" statement states:

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 not provide any genetic information when responding to this request for medical information. "Genetic information," as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that 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.

If this type of warning is provided, any resulting acquisition of genetic information will be considered inadvertent, and therefore not in violation of GINA. In other words, use of this type of warning creates a "safe harbor" for employers who receive genetic information in response to a request for health-related information.

As noted above, the GINA "safe harbor" statement should be attached to all requests for an employee's health information, such as FMLA certification forms, requests for medical records to determine a reasonable accommodation, and requests for medical records relating to an on-the-job injury. Furthermore, employers should ensure that all requests for health information are limited to the disability, illness, injury, or FMLA-qualifying event at issue, and do not seek an employee's genetic information and family health history.

If you have any questions about employee leave issues or employees' medical records, please contact our Labor and Employment practice group.

By Kenneth T. Short, kshort@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment
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