Many of our members are wondering what’s next with Obamacare? In fact, the DOL has done a decent job of posting info. Problem is you need a lawyer to translate much of it. Stay tuned as our team will be bringing on additional webinar guests and tools to help our growing membership manage this challenge. Your benefits brokers should also be stepping up to the plate with some strategic guidance. Understand this: The DOL doesn’t have it all together yet. They are noodling with the regs that kick in in 2014. It is very clear to me the most impacted employers will be those with many low wage earners. Stay tuned!
On November 9, the EEOC issued Final Regulations providing guidance on the Genetic Information Nondiscrimination Act (GINA). As you are probably aware, the provisions of GINA that apply to employers became effective last fall. These provisions prohibit the use of genetic information in making employment decisions, restrict an employer’s ability to obtain genetic information on its employees, and limit the disclosure of genetic information. The definition of “genetic information” is broad and does not simply cover your employee’s individual medical history. It also covers your employee’s family medical history. For instance, if you find out an employee’s family has a history of dementia, GINA means that you cannot discriminate against that employee based on a fear he or she may share that trait.
The Regulations provide guidance on how GINA will be implemented, and will become effective in January 2011, but for many employers, GINA adds a layer of protection in addition to protection already provided under state law. Thirty-two states, including Massachusetts and Connecticut, already prohibit discrimination based on genetic information. Much of the prohibitions in GINA parallel prohibitions under state laws. But the new Regulations highlight some important differences.
- Genetic Information. Under GINA, this term is very broadly defined and includes a listing that is both broader and more specific than the definition in either Connecticut or Massachusetts. Genetic Information under GINA includes information about: (1) an individual’s genetic tests; (2) the genetic test of that individual’s family members; (3) family medical history; (4) an individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or family member of the individual; or (5) genetic information of a fetus carried by an individual or by an pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual using an assisted reproductive technology. Under Massachusetts law, family medical histories were only considered genetic information if they included to the presence, absence, variation, alteration, or modification of a human gene or genes. Employers who routinely request family histories as part of wellness programs will need to incorporate the “safe harbor” language referenced below in their applications for such programs. In Massachusetts, the statute does not specifically protect genetic information of a fetus or embryo. The term “genetic test” is also defined in ch. 151B as any tests of human DNA, RNA, mitochondrial DNA, chromosomes, or proteins for the purpose of identifying genes or genetic abnormalities, or the presence or absence of inherited or acquired characteristics in genetic material.
- Family Member. This term is also broadly defined and in addition to including individuals who are related by blood, also includes people who are or who become related to an individual through marriage, birth, adoption or placement for adoption. The EEOC’s theory is that, even though the genetic information is not shared between individuals related by marriage or adoption, such information “could certainly result in the type of discrimination GINA was intended to prohibit.” Neither Massachusetts nor Connecticut law defines family member.
- Family Medical History. The Regulations define a family medical history as information about the manifestation of disease or disorder in family members of the individual. In their responses to the Proposed Regulations, many employers commented that this term should include only inheritable diseases and disorders, but the EEOC declined to change the definition in the Final Regulations.
- Employers May Not “Request” Genetic Information. The regulations clarify that a “request” includes the following: conducting an Internet search on an individual in a way that is likely to result in obtaining genetic information; actively listening to third party conversations, or searching an individual’s personal effects for the purpose of obtaining genetic information; and making requests for information about an individual’s current health status in a way that is likely to result in obtaining genetic information. This parallels Massachusetts and Connecticut law, which prohibit employers from requiring an employee to disclose genetic information or submit to testing and also prohibits inducing an employee to do so. However, GINA contains some key exceptions to this rule:
- Water Cooler Problem. This references an employer’s inadvertent receipt of genetic information through casual conversation. The Regulations provide examples that make it clear that general questions about an employee’s health will not create liability under GINA. For example, if an employee provides genetic information in response to a casual general question such as “How are you?” “How is your son?” or “Did they catch it early?”, the employer will not be exposed to liability.
- Lawful Requests for Medical Information. The acquisition of genetic information will be considered inadvertent if the employer has specifically directed the individual and/or health care provider from whom it requested medical information not to provide genetic information.
- Publicly Available Information. GINA also includes an exception for the acquisition of genetic information from publicly available materials. The Regulations clarify that whether information is “publicly available” hinges on, whether access to the information requires permission of an individual or is limited to individuals in a particular group, regardless of whether the source is categorized as a social networking site, personal website, or blog. Nonetheless, employers must keep in mind that they may not perform an internet search in a manner that is likely to result in obtaining genetic information, even if the information is ultimately found on a publicly available site.
- Safe Harbor Language. The Regulations provide the following model language which should be incorporated into all human resources’ forms that could be interpreted to request genetic information, such as pre- and post-offer medical exam forms and fitness-for-duty exam forms. If an employer includes this language, the employer is not going to be held liable if it inadvertently receives any genetic information as a result of those inquiries:
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.”
- Personnel Files. Under GINA, employers are required to treat genetic information in their possession the same way they treat medical information: the information must be kept confidential and, if the information is in writing, must keep it apart from other personnel information in separate medical files. Although the Final Regulations state that genetic information placed in personnel files prior to November 2009 does not need to be removed, Massachusetts law has prohibited the inclusion of genetic information of any kind in an employee’s personnel file since 2007, so this is a moot point at least for Massachusetts employers.
- Wellness Programs. The GINA regulations clarify how the statute applies to voluntary wellness programs and the health risk assessments (HRA) that normally accompany such programs. Under GINA, employers are prohibited from offering financial inducements to encourage employees to provide genetic information. However, an employer may offer a financial incentive to encourage an employee to join a wellness program, even if that wellness program requires a HRA, if the following criteria are met:
- The HRA specifically identifies which questions request genetic information.
- The employer makes it clear, in language that is likely to be understood by those completing the HRA, that the questions are optional and that the financial reward will be provided to employees whether or not they complete that part of the assessment.
- Coverage. GINA applies to employers of 15 or more employees; Massachusetts’ statute applies to employers of six or more, and Connecticut’s statute applies to employers of three or more employees.
Article courtesy of Worklaw Network firm Skoler, Abbott & Presser, P.C (www.skoler-abbott.com).
A number of bills which may impact California employers and employees were signed into law by Governor Arnold Schwarzenegger. These new laws include:
SB 1304 (DeSaulnier): A new paid leave requirement for California employers with 15 or more employees will go into effect on January 1, 2011. Codified by Labor Code section 1508 et seq., employees who meet the eligibility requirements will be entitled to up to 30 days’ paid leave in any one-year period for organ donation and up to five days’ paid leave for bone marrow donation. To qualify for this new leave, an employee must provide the employer with written verification of his or her status as an organ or bone marrow donor and the medical necessity for the donation. Leaves may be taken in one or more periods, and during any period of leave, employers must maintain and pay for coverage under a group health plan. Leave taken cannot be considered a break in the employee’s continuous service for the purpose of salary adjustments, sick and vacation pay accrual, annual leave or seniority. However, unless otherwise provided by a collective bargaining agreement, an employer may require employees to use up to five days of accrued sick or vacation time for bone marrow donation leave and up to two weeks of accrued sick or vacation time for organ donation leave. Upon return from such leave, an employee must be restored to the same position or to a position with equivalent status, pay and benefits.
Importantly, this leave does not run concurrently with any leave taken pursuant to the Family and Medical Leave Act (“FMLA”) or the California Family Rights Act (“CFRA”), which means that employees will be entitled to this leave in addition to any FMLA or CFRA leave. The law also protects employees from retaliation for exercising their leave rights and prohibits employers from interfering with their efforts to take such leave.
AB 569 (Emerson): This new law, codified by Labor Code section 512, will take effect January 1, 2011. It exempts construction employees, security services industry officers, commercial truck drivers, and employees of electrical and gas corporations and local publicly owned electric utilities from California’s meal period requirements if the employees are covered by a valid collective bargaining agreement containing meal period provisions. The new law contains more specific definitions of the occupations exempted from meal period requirements.
AB 2364 (Nava): This new law, which will be codified by various sections of the Unemployment Insurance Code, slightly broadens eligibility for unemployment compensation by providing that employees who leave employment to protect their family from domestic violence are eligible for unemployment benefits. This law will become effective on January 1, 2011.
Summary provided by Worklaw Network firm Pettit Kohn Ingrassia & Lutz (www.pettitkohn.com).