foulston siefkin’s seventh annual employment law update association of corporate counsel,...
TRANSCRIPT
FOULSTON SIEFKIN’S SEVENTH ANNUAL
EMPLOYMENT LAW UPDATE
ASSOCIATION OF CORPORATE COUNSEL,
MID-AMERICA CHAPTER
Vaughn BurkholderTara Eberline
March 14, 2012
AGENDA
• Genetic Information Nondiscrimination Act• The basics• Legal and illegal requests for genetic information • Legal and illegal disclosures of genetic information
• Increased Government Scrutiny• Retaliation claims• Misclassification of employees as independent
contractors
Pop QuizBetty and her mother’s obituary• HR Director, Ron Brown, learns that employee
Betty’s mother passed away from cancer.• Ron cuts out obituary from a newspaper that he gets at
home and circulates amongst employees.• Ron cuts out the obituary from the same newspaper at
work, which his employer purchased, and circulates amongst employees.
• Can he circulate in either case?• What if he actively listens to a conversation in the hallway
between others about Betty’s mother’s cancer?• What if he asks if cancer runs in Betty’s family?
• GINA – enacted to prevent discrimination based on genetic information (“G.I.”)
42 U.S.C. § 2000ff29 C.F.R. §1635.10(c)
• Kansas has a similar, shorter statuteK.S.A. § 44-1009(a)(9)(A) and (B)
GENETIC INFORMATIONNONDISCRIMINATION ACT
OF 2008 (GINA)
GINA: The Basics
• Passed in May of 2008
• Took effect on November 21, 2009
• Final regulations issued on November 9, 2010
• Record-keeping requirements implemented February 3, 2012 (generally 1 year, same as Title VII)
GINA Basics - continued
• Commonly referred to as “GINA”• We prefer: “YGTBKMA”• Prohibits use of G.I. in employment decisions
• May not refuse to hire, discharge, or otherwise discriminate against any employee because of G.I.,
• Limit training opportunities because of G.I., or• Limit, segregate, or classify employees in a way that would
adversely affect the employee because of G.I.
• Restricts employers from requesting, requiring, or purchasing G.I.
GINA Basics - continued
• Requires confidential handling of G.I.
• Requires preservation of records
• Provides legal remedies for violations• Harassment
• Retaliation
• Attorney’s Fees
• EEOC oversees enforcement of GINA
GINA Basics - continued
• Coverage if 15 or more employees (like Title VII)
• “Employee” includes applicants and former employees
• “Family member” includes:• Dependents (even by marriage or adoption)• Up to fourth-degree relatives (great-great-
grandparents, first cousins once removed)
What is Genetic Information?
• Genetic tests of the employee or family;• Family medical history (the manifestation of a
disease or disorder in family members of the employee);
• Participation in genetic services (e.g., genetic counseling); and
• Genetic information of a fetus of the employee or family member, including an embryo legally held by either.
• Sex or age of individual is not G.I.
Does GINA Cover Employees’ Medical Information?
• Medical information of employee is not genetic information even if:• it is information that depicts a
manifested disease, disorder, or pathological condition,
• even if that condition has a genetic basis.
What is Genetic Testing?
• Tests to determine whether individual has genetic variant.
• Test for alcohol/drug use is not a genetic test, but test for predisposition to drug /alcohol use is.
• Cholesterol, HIV tests are not genetic tests.
Cause of Action: Requesting G.I. from Employees
• It is unlawful (and actionable) for employer to “request, require, or purchase” employee’s or family member’s G.I.
• “Request” includes: • Searching internet in a way that is likely to result in employer
obtaining G.I.; • Actively listening to third-party conversations; • Searching an individual’s personal effects for the purpose of
obtaining G.I.; and • Requesting information about an individual’s current health
status in a way that is likely to result in employer obtaining G.I.
4 (primary) legal ways to acquire G.I.
1. G.I. is disclosed through lawful medical requests (including ADA, FMLA disclosures);
2. Employer inadvertently acquires employee’s family medical history;
3. G.I. is disclosed through wellness program; and4. Employer purchases documents commercially and
publicly available including newspapers and internet. BUT no exception for:
• Medical databases, court records• Sources with limited access (including some social
networking sites)• Publicly available info if employer was looking for G.I.
Lawful Medical Requests under GINA
• Requests for info related to a request for reasonable accommodation • Only when need for accommodation is not
obvious, and • Request for information not overbroad
• Otherwise lawful ADA requests (job related, supported by medical necessity)
Lawful Medical Requests under GINA, continued
• Requests authorized or permitted by federal, state, or local law such as the FMLA.
• Family members who are also employees of same employer.
• Family members receiving health or genetic services on a voluntary basis.
How to make “GINA-proof” requests to health care providers
• Specifically direct health care providers in writing not to provide G.I.
• Acquisition of G.I. is only inadvertent if health care provider is specifically told to omit G.I.
• Use safe harbor language (see attachment).
Application of GINA to medical exams related to employment
• GINA applies to post-hire, pre-employment exams.
• Employer must tell health care provider not to collect G.I., including family medical history.
• Employer must take “reasonable measures” to stop if it learns that G.I. is requested/required.• This includes not using doctor who continues to request or
require G.I.
• Use safe harbor.
Acquisition through medical request not
inadvertent unless doctor told not to
provide G.I.
SO REMEMBER . . .
What are inadvertent acquisitions of G.I.?
• Disclosures by medical personnel if employer used safe harbor language.
• Unsolicited disclosures from employees.• Learning G.I. through social media, if the employer
had been granted access to the profile.• Same inadvertent/no probing rule applies.
Inadvertent acquisitions of G.I.: Water cooler talk
• “Water cooler talk”: Inadvertent if supervisor overhears conversation between employees disclosing G.I.
• But, no follow-up questions allowed!• OK: “How are you?” “Did they catch it early?”• Not OK: “Do any of your family members have it, too?”
“Have you been tested?”
G.I. disclosed by employee through wellness programs
• Must get prior, knowing, voluntary, and written authorization from the employee to obtain G.I.;
• Only the employee (or family member) and the health care professional/genetic counselor can see G.I.; and
• G.I. not disclosed to employer except in “aggregate terms” that do not identify specific employee.
Unlawful Disclosure: maintaining the confidentiality of G.I.
• Keep G.I. in separate files and treat as a confidential medical record (like ADA);
• May maintain G.I. in same file that is used to hold medical records (not the employee’s personnel file).
• G.I. that is in personnel file prior to November 21, 2009 need not be removed from personnel file, but remember the ADA.
• Non-disclosure, nondiscrimination still applies.
Lawful Disclosure: When (and to whom) can an employer disclose G.I.?
• Employer may only disclose G.I.:• to employee (or family member if family member is
receiving genetic services) at the written request of the employee;
• in response to court order; • to government officials investigating compliance with GINA
if information is relevant to investigation; or• Other limited exceptions (see regulation).
• May only give out G.I. that is expressly authorized by the court order.
• Response must be tailored to the specific request.• Must notify the employee (if the court order was
secured without notifying the employee) and tell employee what G.I. was given out.
• General discovery request for employee records is NOT sufficient.
How do we respond to a subpoena or court order for records?
Back to the pop quiz: Betty’s Mom’s Obituary
• Okay for Ron to bring obituary from personal newspaper to work? • Statute: No. Statute refers to publicly
accessible documents purchased by employer.
• Regulation: Yes. Doesn’t specify documents must be purchased by employer.
Back to the pop quiz: Betty’s Mom’s Obituary
• Okay for Ron to have obituary from work newspaper?• Statute: Yes. Lawful for employer to
purchase G.I. if found in document that is commercially and publicly available.
• Regulation: Yes. If employer gets G.I. from commercially and publicly available source, it is not considered confidential G.I.
Back to the pop quiz: Betty’s Mom’s Obituary
• Okay for Ron to distribute obituary at work (from either home or work newspaper)? • Statute: No. • Regulation: If employer gets G.I. from commercially
and publicly available source, it is not considered confidential G.I., so arguably could distribute.
• Statute or regulation control? • What if Ron checked the obits because he was
trying to figure out why Betty’s mom died?
Back to the pop quiz: Betty’s Mom’s Obituary
• Ron learns of Betty’s Mom’s passing from cancer by overhearing conversation in hallway. Violation?• No (water cooler talk).• But, Ron cannot then ask Betty if
she’s been tested for same cancer.
Increased Government Scrutiny
• Workplace Retaliation
• Independent Contractor Relationships
