The VSHRA Breakfast – 2013 Legal and Legislative Update

ArrowheadLast Thursday I had the pleasure of presenting the 2013 Legal and Legislative Update at the Valley of the Sun Human Resource Association (VSHRA) Breakfast. The breakfast was at the Arrowhead Country Club — which basically means my day started with everything on my checklist for a perfect morning: (1) breakfast overlooking a lake; (2) grass, palm trees, and a cool breeze; and (3) an opportunity to meet and chat with leaders and professionals in the community. 

We discussed the changes to the FMLA (effective March 8th) and other policies that should be updated in handbooks, the current guidance from the EEOC on Employee Convictions, best practices for internal investigations, disparate impact claims in 2013, and a handful of other topics. The best part was there was a dramatic ending to my presentation as – with about 60 seconds to go – the fire alarms went off and caused all of us to start clearing the room. I guess that’s one way to put an exclamation mark at the end of an event! (Yes, it was just a false alarm).

For those who attended the breakfast, I mentioned I would post on the blog an example of the GINA safe harbor language. While this is no guarantee that a company will fall within the “inadvertent” exception, the use of this language makes it more likely that any resulting acquisition of genetic information will be considered inadvertent. Here you go — and to read more about it, check out the EEOC’s Q&A here.

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.

The EEOC explains:

To take advantage of this safe harbor, the employer must do what is reasonably necessary to ensure that the warning is understood by employees or doctors submitting health-related information to the employer, at the time of submission. This is best accomplished by providing the warning each time health-related information is requested. But it may suffice to give the warning more generally, for example by including it on the employer’s leave and reasonable accommodations request forms, if doing so would reasonably ensure that it is understood at the time health-related information is submitted.

About Ashley Kasarjian

Attorney at Snell and Wilmer in Phoenix, Arizona, and publisher of the blog, Employment and the Law.
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