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New Year's Resolution for Employers:
Revise Requests for Medical Information to Include GINA Language
The Genetic Information and Nondiscrimination Act (GINA) prohibits discrimination based on genetic information and restricts employers' collection and disclosure of such information. "Genetic information" includes not only the results of an individual's or family member's genetic tests, but also an employee's family medical history. GINA compliance may not be on employers' "radar screens" because they do not believe they collect or make use of genetic information.
Employers do routinely request medical information in connection with federal and state family leave and disability laws, however. GINA does not prevent these requests, but the EEOC has published guidance recommending that when an employer makes a request for medical information, it should warn the employee and/or health care provider that genetic information should not be provided.
We recommend that you include the following EEOC "safe harbor" language in all requests for medical information:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA from requesting or requiring genetic information of employees or their family members. In order to comply, we ask 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 or family member's genetic tests, the fact that an individual or 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.
If this warning is given, any resulting receipt of genetic information will be considered inadvertent and not in violation of GINA. For more information on GINA or the safe harbor language, contact us or visit the EEOC online.
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DOT Restricts Mobile Phone Use
A new Department of Transportation (DOT) rule restricts the use of hand-held mobile telephones and devices by drivers of commercial vehicles. The rule, which became effective January 3, 2012, prohibits commercial drivers from holding mobile devices while operating their vehicles, or pushing more than one button to operate the device. The DOT rule is consistent with Oregon law, which has eliminated the work-related exception to its ban on hand-held cell phone use (see sidebar). The DOT rule goes beyond Oregon's law in its specificity, however: commercial drivers are permitted to use mobile devices only if they can initiate, answer or terminate a call (1) with the push of a single button, (2) on a device within their reach, and (3) without holding the device in their hand (requiring a speaker phone or wireless earpiece). Employers of commercial drivers are also banned from requiring drivers to use mobile phones or devices while driving. Drivers can be fined $2,750 per violation and employers or carriers may be fined $11,000. Employers should revise their policies consistent with the new regulation and train commercial drivers on the policy. Contact us if you would like assistance drafting or revising a policy. |
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Employers Beware--Automatic Termination Following Medical Leave is Risky
Some employers' leave policies provide that employees will be discharged if they fail to return to work after their designated leave expires. Although these polices may appear nondiscriminatory because they can be applied uniformly, automatically terminating an employee at the end of the employer's maximum leave period may be a violation of the Americans with Disabilities Act (ADA). The ADA is clear that a reasonable accommodation may include extending periods of leave, as long as doing so does not create an undue hardship (i.e., significant expense or difficulty) for the employer.
The Equal Employment Opportunity Commission (EEOC) has taken an aggressive stance with employers that enforce automatic termination policies. Two recent examples:
- JP Morgan Chase paid $2.2 million to resolve a charge that its six-month leave policy violated the ADA because it provided for termination in every case where the employee's leave exceeded the six-month maximum, rather than a case-by-case determination of whether additional accommodation was possible.
- The EEOC alleges that UPS's leave policy violates the ADA. An employee took a 12-month leave of absence because she had multiple sclerosis. She returned to work for a few weeks, but soon needed additional leave to deal with the side effects of her medication. UPS' leave policy called for automatic termination should an employee require more than 12 months of medical leave, and UPS terminated the employee for exceeding that limit. The EEOC alleges that UPS failed to reasonably accommodate the employee. This case is ongoing.
Leave policies, even generous ones, that require automatic discharge after a specific period, may violate disabled employees' right to reasonable accommodation under the ADA. The ADA requires a case-by-case assessment (including talking to the affected employee) to determine whether a particular employee needs a limited extension of medical leave as a reasonable accommodation (or another form of accommodation, if it is reasonable and available). Employers should review leave policies to ensure they do not contain arbitrary deadlines for returning to work following leave.
Please contact us if you have questions or need assistance drafting or revising a policy.
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Supreme Court to Hear Arguments on Health Care Reform
 The Patient Protection and Affordable Care Act (PPACA), signed into law in March 2010, made significant changes to the nation's health care system. Opponents argue the law is unconstitutional and that the requirement for individuals to purchase insurance exceeds Congress' power. Several cases have been filed around the country and conflicting decisions have been issued by the lower federal courts. Some courts have found PPACA constitutional and others have ruled that it is unconstitutional. The Supreme Court will hear an appeal of the 11th Circuit Court of Appeal's decision that found the individual mandate requirement unconstitutional. Oral arguments are scheduled in March 2012 with a decision expected in June 2012. For more information on health care reform, please contact us, or visit the government's healthcare information website.
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DOT Limits Drivers' Work Hours
The Department of Transportation (DOT) issued a final rule that limits the hours truck drivers can work to 70 hours a week, down from 82 hours previously. In addition, drivers must take a 30-minute break after driving eight hours straight. Drivers can take the 30-minute break whenever they need rest during the eight-hour window. The final rule retains the current 11-hour daily driving limit. The new rule is effective February 27, 2012. For more information, visit the DOT website.
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Oregon Eliminates Exception for Work-Related Cell Phone Use
As of January 1, 2012, Oregon law no longer allows drivers to use hand-held cell phones if the call is work-related. Currently, the only drivers in Oregon allowed to use a hand-held cell phone are those calling for emergency assistance or using a cell phone while operating in a specific industry such as farming, agriculture, roadside assistance or telecommunications.
Employers should update their policies to communicate to employees that they may only use a hands-free device while driving and should not be texting under any circumstances.
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