HIGHLIGHTS FOR THE MONTH OF OCTOBER 2009

By: Kraig B. Long

RECENT DEVELOPMENTS

Final Rules Released on Genetic Information Nondiscrimination Act.

On November 21, 2009, the Genetic Information Nondiscrimination Act of 2008 (GINA) will go into effect. The U.S. Departments of Health and Human Services, Labor and Treasury have issued interim final rules that prevent employers, insurers, health care providers and others from using genetic information in determining health care coverage. GINA creates broad prohibitions on the collection, use, and disclosure of genetic information in the workplace, and applies to all employers covered by Title VII of the Civil Rights Act of 1964 (employers with 15 or more employees).

GINA defines “genetic information” as information about (i) an employee’s genetic tests; (ii) the genetic tests of an employee’s family members; and (iii) the “manifestation” of a disease or disorder in the employee’s family members. Thus, information regarding diagnosed diseases or disorders (or those that could reasonably be diagnosed) of an employee’s mother, grandmother, great grandmother, and great great grandmother, for example, would constitute “genetic information,” for purposes of GINA. “Genetic tests” include any analysis of an individual’s DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations or chromosomal changes. HIV tests, complete blood counts, cholesterol tests, liver function tests and tests that detect the presences of alcohol or drugs are not considered to be genetic tests.

The interim final rules substantially limit the ability of employer-sponsored group health plans and health insurers to conduct pre-enrollment health risk assessments that obtain or rely on genetic information, and prohibit these covered entities from using genetic information to deny coverage, raise premiums or impose pre-existing condition exclusions. GINA makes it unlawful to request, require or purchase genetic information about an individual or the individual’s family members in connection with an application for enrollment in a health insurance plan. Employers, however, do not violate GINA when requesting protected genetic information, including manifested diseases or disorders, as necessary to comply with the Family and Medical Leave Act, and any state family and medical leave laws.

Lessons Learned: To comply with GINA, employers should take the following action before the November 21, 2009, effective date:

1. Add non-discrimination on the basis of genetic information to all equal employment opportunity statements;

2. Discontinue any practice of requesting applicants and/or employees to provide a family medical history, including in the context of employee wellness programs and employer-provided health reimbursement arrangements;

3. Discontinue any practice of requesting information about the manifested disorders or diseases of an employee’s family members for non-FMLA leave requests;

4. Ensure that employee medical information that falls within the broad definition of “genetic information” is treated confidentially and maintained in a medical file separate from the employee's personnel file; and

5. Establish a policy and procedure to prevent the inadvertent disclosure of genetic information in response to a subpoena or civil discovery request that is unaccompanied by a court order compelling such disclosure.

President Obama Implements New FMLA Military Leave Amendments.

On October 27, 2009, President Obama signed the 2010 National Defense Authorization Act, which contained new amendments to the Family and Medical Leave Act (FMLA). By way of background, the 2008 National Defense Authorization Act created a new leave right under the FMLA for families of service members. The new Act further expands FMLA coverage and available leave for military families in the following ways:

• Leave For A “Qualifying Exigency.” Previously, leave for a qualifying exigency in connection with a deployment for a contingency operation was not available to members of the regular Armed Forces, but only members of Reserves and National Guard units. The new amendments permit families of regular armed forces personnel who are deployed to foreign countries to qualify for such leave.

• Leave To Care For A Covered Service Member With A Serious Illness. So-called “military caregiver leave” provides up to 26 weeks of leave to employees caring for a current member of the armed forces, National Guard or Reserves. The new legislation permits leave to be taken for retired military service members as well, so long as it is within five years of the date on which the service member first receives treatment, recuperation, or therapy for the injury.

• Leave For Aggravation Of Existing Or Preexisting Injuries. The 2008 regulations specified that a later aggravation or complication of the same injury would not constitute a “subsequent injury” triggering another 26 weeks of leave. The new legislation, however, provides that an aggravation or complication of a prior injury will trigger a right to another 26 week leave period, although it will remain the case that the 26 weeks of leave will have to be taken in a single 12-month period for a single injury (and any leave not taken in that year forfeited).

Lessons Learned: The new amendments direct the U.S. Department of Labor (DOL) to work with the Secretaries of Defense and the Veterans Administration to draft regulations implementing the amendments. The legislation does not make clear whether the law goes into effect immediately or whether it will become effective after the new regulations are issued. It would be prudent, however, to proceed as if the law were in effect if faced with a request by an employee seeking leave to care for an eligible service member under the expanded law.

An Employer’s Suspicions About Employee Misconduct Do Not Have to Be Right, Just Reasonable.

The U.S. Court of Appeals for the Fifth Circuit has ruled that where an employer terminates an employee based on a good faith, reasonable belief that an employee engaged in misconduct, which may later prove to be a mistaken belief, such mistake fails to demonstrate that the employer’s reason for disciplining the employee was pretextual.

Facts of the Case: In Cervantez v. KMGP Services Co., the employer terminated the plaintiff after it discovered that his computer User ID and password had been used to access pornographic websites from one of the company’s shared computers in the break room. The company conducted an investigation and determined that the plaintiff had been at work on the dates that his User ID was used to access hundreds of prohibited websites. When the plaintiff was told that he was being fired, he denied having visited any such websites. The plaintiff sued the employer, alleging that he was fired because of his age in violation of the Age Discrimination in Employment Act. During a subsequent unemployment hearing, the plaintiff was given for the first time a copy of the log of websites he allegedly visited with his User ID. The plaintiff conceded that the log showed attempts to access prohibited websites on dates that he was at work, but he also identified attempts that were made on dates that he did not work or at times long after his shift had ended.

The Court’s Ruling: The Fifth Circuit found that the employer’s reason for discharging the plaintiff – violation of its computer use policy – was a legitimate, nondiscriminatory reason, and that the apparent inconsistencies in the log detailing the websites the plaintiff allegedly accessed did not demonstrate that the employer’s reasons for firing him were pretextual. The Court held that “a fired employee’s actual innocence of his employer’s proffered accusation is irrelevant as long as the employer reasonably believed it and acted on it in good faith.”

Lessons Learned: Employers often think that they must prove their suspicions regarding employee misconduct “beyond a reasonable doubt” before taking any action against the employee. This case, which is consistent with the law in most federal circuits, makes clear that the law does not require the employer to have irrefutable evidence of misconduct to take action. Employers who conduct a thorough investigation of the alleged misconduct and rely in good faith on the facts discovered in the investigation in making employment decisions limit their potential liability for discrimination claims, even if the facts relied upon later prove to be incorrect. Employers, of course, must ensure that their investigations are thorough and do not exclude or ignore evidence that would ordinarily be considered.

TAKE NOTE

Age Discrimination. The U.S. Court of Appeals for the Second Circuit recently held that not renewing an employment contract constitutes as an “adverse employment action” for purposes of Title VII and the Age Discrimination in Employment Act (ADEA). In Liebowitz v. Cornell University, the plaintiff, a non-tenured instructor, claimed that her employment contract was not renewed because of her age and gender. She presented evidence that five other female employees (all above the age of fifty) were also laid off; the duties she once performed were assigned primarily to male employees; and that the university did not consider her for a vacant position that became available soon after her employment contract expired. In ruling for the university, the district court found that the plaintiff had not established a prima facie case of discrimination because she did not produce evidence that she had any right to a tenured position, and, therefore could not prove an adverse employment action in the university’s decision not to renew her employment contract. The Second Circuit reversed the district court, holding that “an employee seeking a renewal of an employment contract, just like a new applicant or a rehire after a layoff, suffers an adverse employment action when an employment opportunity is denied and is protected from discrimination in connection with such decisions under Title VII and the ADEA.”

Title VII Class Action Lawsuit. The U.S. Supreme Court recently agreed to hear the case of Lewis v. City of Chicago to decide whether a plaintiff must file a charge of discrimination with the EEOC within 300 days after the announcement of an alleged discriminatory practice, or within 300 days after the employer uses the practice. A class of black applicants who applied for firefighter positions claimed a then-newly administered written test that was a required part of the application process had a disparate impact on black applicants. All applicants were placed in three categories based on their test scores: “well qualified,” “qualified,” and “not qualified.” The plaintiffs claimed the scoring method of the test disproportionately classified black applicants as “qualified” rather than “well qualified.” The City mailed notices of the test results to the applicants and advised them that only those in the “well qualified” pool would be considered for employment. The plaintiffs filed a charge of discrimination with the EEOC 420 days after being sent notice of their test results, but within 300 days of the City’s hiring of applicants from the “well qualified” pool. The case was appealed from the U.S. Court of Appeals for the Seventh Circuit, which held that the clock began to run when the plaintiffs’ received the test results placing them in the “qualified” category. The court held that the alleged discrimination was “complete” at this point because the prospect of employment was foreclosed by their “qualified” status.

D.C. Human Rights Act (DCHRA). The District of Columbia Court of Appeals held in Monteilh v. AFSCME, AFL-CIO that the jurisdiction of the DCHRA extends beyond the District of Columbia. A union organizer (for AFSCME), who lived and worked in California and Georgia, but never performed any work and never applied for any position in the District of Columbia, sued his employer, alleging unlawful discrimination and retaliation in violation of the DCHRA. AFSCME is headquartered in the District of Columbia and the plaintiff alleged that some of the allegedly discriminatory acts were either made or approved at headquarters. The trial court dismissed the complaint and ruled that the DCHRA is not violated when the “effects” of the alleged discriminatory decision are not felt within the District and do not impact a job position or application for employment in the District. The D.C. Circuit reversed the trial court, holding that it would be counter to the purpose of the DCHRA “to place beyond its reach a discriminatory decision made in the District because the effects – say, a lost job or promotion – were felt only elsewhere by the employee.” The Court ruled that where an employment decision was made, or its effects felt, or both, in the District of Columbia, the employee can bring an action under the DCHRA.

New EEOC Poster. Because employers are required by law to post notices describing the federal laws that prohibit job discrimination, the EEOC recently posted on its website a revised “Equal Employment Opportunity is the Law” poster that reflects current federal employment discrimination law, including the Americans with Disabilities Act Amendments Act of 2008 (effective on January 1, 2009) and the Genetic Information Nondiscrimination Act of 2008 (effective November 21, 2009). The revised poster is available in English, Arabic, Chinese and Spanish, and may be ordered from the EEOC’s website at http://www.eeoc.gov/posterform.html. The EEOC notes that there are several ways for employers to comply with posting requirement:

• Print the “EEO is the Law” poster supplement and post it alongside the EEOC’s September 2002 “EEO is the Law” poster or the OFCCP’s August 2008 “EEO is the Law” poster.

• Print and post the EEOC’s November 2009 version of the “EEO is the Law” poster.

• Order a new poster through the EEOC Clearinghouse at the address listed on the website.

Currently, the poster is on backorder.

TOP TIP

Train Now to Avoid Lawsuits Later

California requires most employers to conduct harassment avoidance training every two years. While no other state imposes this mandate, implementing a regular schedule of training to ensure that managers and employees understand their obligations can enhance morale, lessen the risk of employment lawsuits and minimize or avoid liability in the event of a lawsuit. Indeed, with the recent revisions to the Family and Medical Leave Act (“FMLA”) and passage of amendments to the Americans with Disabilities Act (“ADA”), this is a good time for employers to evaluate their training programs.

Because the actions of managers are considered the actions of the company for purposes of imposing liability in a lawsuit, managers must be aware of applicable legal requirements and restrictions on workplace conduct.

FMLA and ADA Training for Managers.

Specifically, without training, supervisors may be unable to appreciate that an employee’s leave from work for a serious health condition of an employee or a family member triggers employer duties under the FMLA. In addition, both the FMLA and the ADA limit medical information that can be elicited from an employee (and with whom it may be shared). Managers who fail to understand these limits may unwittingly create legal liability for the company. With expanded employer obligations under the ADA, supervisors and managers increasingly will need to understand how to respond when an employee says he or she has a disability and needs a reasonable accommodation. Importantly, managers need to understand that indirect statements can constitute such requests and trigger a duty to respond (such as “I would have completed that project but with carpal tunnel makes it impossible for me to keep up using that computer keyboard.”)

Harassment Training for Managers and Employees.

Harassment avoidance training should not be viewed as a one-time undertaking. A regular schedule (such as once every two years along the lines of the California model) ensures that new hires are “inoculated” and existing employees get a “booster shot” to remind them of the importance of proper workplace conduct, as well as how to identify and address harassment situations if they arise. Managers must understand how to respond when an employee complains of harassing behavior and what their responsibility is when they believe harassment has occurred, even if the employee has not made a formal complaint.

For greater clarification of any of these issues, you may contact any Shawe Rosenthal attorney.

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