The Genetic Information Non-Discrimination Act of 2008 (GINA), was enacted in May 2008 and became effective in November 2009. Essentially GINA forbids employers from intentionally acquiring any employee’s genetic test results or family medical histories. Employers are not in violation of GINA if they inadvertently receive genetic information. However, all requests for medical records must expressly warn health providers not to provide genetic information or the acquisition of the records will not be considered inadvertent.
GINA regulations recommends safe harbor language to include in requests and subpoenas in order to put medical providers on notice of GINA. The language reads: "The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information 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 assisted reproductive services." 29 CFR § 1635.8(b)(1)(i)(B).
Additionally, GINA gives directions on how employers must maintain records that contain genetic information. Genetic information must be treated as a confidential medical record of the employee and must be kept separate from other records. This confidential record may be disclosed in response to a Court Order and to an employee upon his written request. Genetic information inadvertently received should be redacted before forwarding the record to anyone else involved in the claim, including adjusters and attorney.
My Two Cents:
It is smart practice to go ahead and insert the safe harbor language recommended by GINA regulations in all outgoing requests for records. This will guarantee that all genetic information received will be considered inadvertent and will serve as protection if there are any complications down the road. However, this is only half the battle. All records received must be carefully reviewed in order to determine if genetic information was inadvertently included by the medical provider. If genetic information was received it must be kept in a confidential file separate from the employee’s general workers’ compensation file. While separate files need not be created for genetic information already received in workers’ compensation files started before November 2009, these older files are still governed by the disclosure requirements discussed above. Therefore, before forwarding any of these records on to a new entity, care needs to be taken to redact all genetic information.