June 24, 2026
GINA’s Safe Harbor Might Have Saved the Day: Are You Using It?
The U.S. EEOC has filed a lawsuit alleging an employer violated the Genetic Information Non-Discrimination Act (GINA) for a period of approximately two years. GINA prohibits covered employers (those with 15 or more employees) from obtaining “genetic information” from employees or applicants. The next question is often, “Who asks for genetic information and how?!”
Work-related medical exams often request or require the individual to answer a family medical history questionnaire. The purpose may be to avoid hiring a person with a familial history of certain medical conditions and the potential medical costs should this candidate contract one after being hired. The questionnaire, which was administered by a local regional medical center on behalf of the employer, asked applicants to disclose, “whether any immediate relative (father, mother, brother, sister, or grandparent) ever had tuberculosis, cancer, heart trouble, asthma, high blood pressure, stroke, diabetes, epilepsy, amental illness, or any ‘other’ medical condition.”
What’s the safe harbor? The lawsuit alleges the violations occurred from 2002 through “mid 2024.” What happened in mid-2024? The employer, removed that question from the questionnaire and instructed the regional medical center “not to provide [the employer] with any genetic information the applicant may have shared during the pre-employment physical examination.”
Is there sample language an employer may use? Yes! The EEOC explains, “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.”
Click here for the sample notice (see Q#17) and talk to your company’s legal counsel before implementing it on forms you use to request medical information such as on post-offer medical exam notices, fitness-for-duty requests, ADA reasonable accommodation, and other medical certification requests, etc.
What about FMLA requests for medical information? In 2018, the U.S. Department of Labor’s added related language to its sample medical certification forms.
