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January/February 2012
(PDF Download)
October 30, 2009
Articles
Employment Law Updates: GINA becomes effective and the FMLA is revised
This E-Alert covers two topics, the Genetic Information Non-Discrimination Act (“GINA”) which takes effect on November 21, 2009, and recent revisions to the FMLA.
GINA
The Genetic Information Non-Discrimination Act (“GINA”) will take effect on November 21, 2009. You should take steps to ensure that your organization is in compliance.
Background:
GINA provides that employers
- may not request or acquire genetic information;
- use or consider genetic information in making decisions related to terms, conditions, or privileges of employment;
- must keep genetic information confidential;
- must comply with strict limitations regarding the disclosure of genetic information; and
- may not retaliate against an individual for opposing any act made unlawful by GINA.
The EEOC regulations define “genetic information” broadly, and include genetic tests of employees and their family members and any manifestation of a disease or disorder in an employee's family member. The term "family member" is also defined broadly, including dependents related by marriage, birth or adoption, and first through fourth degree relatives.
Exceptions apply if employers request or require employees to provide genetic information:
- in compliance with the FMLA (or applicable state law) certification requirements;
- inadvertently (such as where a supervisor asks about the general health of an employee or a family member);
- through health or genetic services offered to employees as part of a wellness program;
- through commercially or publicly available sources;
- through genetic monitoring of the biological effects of toxic substances in the workplace; and
- for law enforcement purposes.
Recommended Steps
We recommend that you revise the equal employment opportunity language in your handbooks to specifically include non-discrimination on the basis of genetic information. In addition, you should determine whether your organization currently requests employees to disclose medical information which is not included in one of the above exceptions. If your organization is currently requesting such information, these practices should be discontinued. All genetic information which falls within the permissible exceptions must be maintained as confidential medical records apart from personnel files.
Although GINA becomes effective November 21, 2009, final regulations have not yet been published. It is expected that implementing regulations won't take effect until Dec. 7, 2009.
FMLA Revisions
On October 28, President Obama signed into law the National Defense Authorization Act of 2010, which revises the FMLA’s family member military leave provisions.
Changes to Military Caregiver Leave
Under
the FMLA regulations that became effective in
January 2009, military caregiver leave was available to care for current members
of the Armed Forces, Guard or Reserves. In addition, the leave could not
be taken to care for a servicemember who had aggravated existing or
pre-existing injuries in the line of duty while on active duty. The new law changed both of those requirements.
Under the new law
- Leave may be taken for a veteran receiving medical treatment, recuperation, and therapy for a serious injury or illness incurred in the line of duty who was a member of the Armed Forces at any time during the five years preceding the date on which the veteran undergoes such treatment, recuperation, or therapy;
- Leave is also expanded to allow a family member to care for a servicemember or veteran who is being treated for aggravation of existing or preexisting injuries incurred in the line of duty while on active duty.
Changes to Qualifying Exigency Leave
Under the January 2009 regulations, qualifying exigency leave is only available for covered military members in the Reserves or Guard. Under the new law, leave is expanded to cover members of the regular Armed Forces who are deployed to a foreign country.
For a link to the new law, go to http://www.govtrack.us/congress/bill.xpd?bill=h111-2647
If you have any questions about these changes, please contact Alice Berquist or Penny Phillips.
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