Author: Tina Maiolo

Posted on

Complying With the Genetic Information Nondiscrimination Act

Beginning November 21, 2009, hiring and employment decisions will become even more complex for employers. The Genetic Information Nondiscrimination Act, which was signed into law by President George W. Bush on May 21, 2008, is intended to prevent employers, employment agencies, labor unions and health insurers from discriminating against individuals based on genetic tests and information. Here’s what you need to know about the effect the law will have on employers and their hiring and employment decisions.


Who is subject to the Genetic Information Nondiscrimination Act?
As they are under Title VII of the Civil Rights Act of 1964, private employers with 15 or more employees are subject to the Genetic Information Nondiscrimination Act’s requirements. Unlike Title VII, however, the Genetic Information Nondiscrimination Act also covers certain public-sector employers, such as the U.S. Postal Service and the Library of Congress. Employment agencies and labor organizations are also subject to the act.


The Genetic Information Nondiscrimination Act is a federal statute that offers a base-line level of protection for employees against discrimination based on genetic information. It also authorizes states to enact laws granting additional protection.


What is genetic information?
The act broadly defines genetic information to include:


  1. An employee’s genetic tests.

  2. An employee’s family members’ genetic tests.

  3. The manifestation of a disease or disorder in the individual’s family members.

  4. Genetic tests of any fetus of an individual or family member who is pregnant, and genetic tests of any embryo legally held by an individual or family member utilizing assisted reproductive technology. For the purposes of the act, genetic information does not include information about the sex or age of any individual.

Employers should pay particular attention to No. 3. The term “family member” encompasses varying degrees of relatives (up to the fourth degree), including, without limitation, the employee’s parents, siblings, children, first cousins, grand nephews and nieces, and great-great grandparents, to name a few. Moreover, the term “manifestation” is so broad that employees can be deemed covered simply because a family member is symptomatic of some genetic disease or disorder.


Furthermore, genetic information includes any request for, or receipt of, genetic services or participation in clinical research that includes genetic services (genetic testing, counseling or education) by an individual or family member. The statute further defines “genetic test” as an analysis of human DNA, RNA, chromosomes, proteins or metabolites that detects genotypes, mutations or chromosomal changes. The Genetic Information Nondiscrimination Act does not protect routine tests that do not measure DNA, RNA or chromosomal changes, such as complete blood counts, cholesterol tests and liver function tests. Also, under the act, genetic tests do not include the analysis of proteins or metabolites that are directly related to a manifested disease, disorder or pathological condition that could reasonably be detected by a health care professional with appropriate training and expertise in the field of medicine involved.


What acts are prohibited under the act?
The Genetic Information Nondiscrimination Act, like Title VII, prohibits discrimination in hiring, termination and decisions related to compensation, as well as other terms and conditions of employment. Specifically, it prohibits employers from requesting, requiring or purchasing genetic information on an employee or the employee’s family members. There are, however, exceptions to this prohibition that an employer should be familiar with. Some limited of these exceptions include inadvertent requests or requirements for an employee’s family medical history and family medical history information requested in compliance with Family and Medical Leave Act certification procedures.


Furthermore, when the exceptions like the ones listed above apply, the employer must keep the genetic information confidential. More specifically, when an employer maintains genetic information concerning an employee or family member, the employer must keep the information on separate forms and in separate files as a confidential medical record. These medical records can be disclosed under limited circumstances, such as at the employee’s request, pursuant to court order or to determine compliance with the act and other nondiscrimination statutes like the Family and Medical Leave Act. Genetic information is also subject to HIPAA privacy requirements.


    The act also protects employees from retaliation for opposing or complaining about unlawful employment practices, and from retaliation for filing a claim under the act.


What are the remedies under the act?
The act’s remedies are much like those in Title VII. An employee can recover compensatory damages, which are capped at $300,000 for employers with 500 or more employees, and punitive damages, which have no cap. An employee can also be entitled to recover back pay, reinstatement and attorney fees.


What does the act mean for employers?
Employers need to be familiar with the Genetic Information Nondiscrimination Act’s requirements to ensure that their business is in compliance with it, as well as any similar state laws, since it is possible the state law will afford an employee more protection than the federal law. Furthermore, employers will need to assess their compliance with the act in relation to their obligations under other employment anti-discrimination laws such as ADA, FMLA and the Pregnancy Discrimination Act.


Finally, the Genetic Information Nondiscrimination Act can mean more complicated hiring and firing decisions for employers. Consider these examples: 


  1. An employee takes FMLA leave to care for a mother suffering from Alzheimer’s disease. The employee uses all available protected leave and returns to work, so that there is no FMLA violation. Six months later, the employee is terminated. Under the act, the employee could sue the employer, alleging that the employer knew the employee’s mother had a genetic disorder and terminated the employee on the assumption that she could be afflicted with Alzheimer’s disease as well.


  2. An employee has decided to get the BRCA gene tests, to determine whether she is at a higher risk for developing breast or ovarian cancer. The employee requests time off from her job to attend the appointment and tells the employer the specific reason for needing the leave. The employer allows the employee to take the time off and the employee promptly returns to work. After the employee receives her results, she shares with some co-workers that the BRCA gene tests came back positive; she is at a higher risk for breast cancer. Six months later, the employee is terminated. Under the Genetic Information Nondiscrimination Act, the employee could sue, claiming that (1) the employer fired her because she is more susceptible to breast cancer or (2) the employer assumed she was more susceptible to breast cancer and that breast cancer ran in her family since she decided to have the elective genetic testing done.

As if the current anti-discrimination laws did not give employers enough to think about when hiring or firing employees, the Genetic Information Nondiscrimination Act will add a new level to this decision-making process. As such, employers need to be informed of the law’s requirements. Training and education are the keys to this process. Employers should ensure that their HR departments and their management-level employees are aware of the new law and its detailed provisions. Otherwise, employers run the risk of being caught up in the genetic-discrimination litigation that is sure to develop.


The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

Posted on

Are You Ready for the ADA Amendments Act of 2008

Anyone reading the recently passed ADA Amendments Act might be tempted to ask, who isn’t covered? Created with the intent to restore the protections that were originally laid out in the Americans with Disabilities Act of 1990, but which have been steadily eroded since by the courts, the new amendments are so expansive and cover so many individuals and impairments, they might as well be called the “Americans Accommodation Act.”


Kidding aside, employers need to be aware that the standard for what is classified as a disability has been altered significantly. There could be an initial wave of litigation aimed at companies to test the new boundaries of the amendments, so it’s critical that employers are prompt and thorough in managing employment processes and are fully educated on the new compliance requirements. The ADA Amendments Act becomes effective January 1, 2009. Previously under the ADA, individuals were denied protection if their condition could be treated with medication or was in remission. A main change under the ADA Amendments Act is that an impairment now qualifies as a disability if, when active, it would substantially limit a major life activity, such as hearing, walking or communicating.


In 1990, Congress targeted private employers with a directive to eliminate discrimination against qualified individuals with disabilities, after recognizing the fact that individuals with physical and mental disabilities were unfairly being denied private sector employment because of prejudice and antiquated societal barriers, even though they were qualified to perform their essential job functions. The enactment of the ADA essentially expanded to the private sector the protections that were first created by the Rehabilitation Act in 1973, which applied to federal employment and programs that were funded or operated by federal agencies or contractors.


Over the years, the broad definition of disability as set by the ADA in 1990 has been considerably narrowed by various court rulings. Specifically, the Supreme Court’s rulings in Sutton v. United Air Lines, Inc. (1999) and its companion cases significantly narrowed the scope of protection allowed under the ADA by ruling that measures that lessen a person’s impairment, such as medications, should be weighed in determining whether an impairment substantially limits a major life activity.


The intended scope of protection was further limited by the Supreme Court’s decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams (2002), which interpreted the term “substantially limits” to require a more significant degree of limitation. In addition, the current Equal Employment Opportunity Commission’s ADA regulations define the term “substantially limits” as “significantly restricted,” which is too high a standard to be consistent with Congressional intent, according to the ADA Amendments Act. As a result of these Supreme Court cases and the EEOC regulations, individuals with a variety of substantially limiting impairments that were intended to be covered by the ADA were denied its protections.


A new standard
 Thus we have the ADA Amendments Act of 2008, which is intended to restore the original intent and broad scope of the ADA, and, in the process, reject the Supreme Court’s decisions and EEOC regulations that have improperly narrowed the scope of its protections. A key nuance for human resource professionals is that under the ADA Amendments Act, workers now will be presumed to meet their initial burden of proving that they have a disability, and the scrutiny will shift from determining whether an individual is “disabled” to whether the employer covered by the ADA met its legal obligations. Whether an individual’s impairment qualifies as a disability will not receive extensive analysis.


With the goal to “restore the ADA to it original purpose,” the ADA Amendments Act takes these noteworthy actions, which human resource professionals should note. The act:


  • Outlines boundaries for the definition of “disability,” including:
    a. The term “disability” shall be interpreted in favor of broad coverage of individuals.
    b. An impairment that substantially limits one major life activity does not need to limit other major life activities.
    c. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
    d. The determination of whether an impairment substantially limits a major life activity shall be made without regard to specified measures that work to lessen an impairment—excluding ordinary eyeglasses or contact lenses
     
  • Specifically identifies “major life activities” as including but not limited to: caring for oneself; performing manual tasks; seeing; hearing; eating; sleeping; walking; standing; lifting; bending; speaking; breathing; learning; reading; concentrating; thinking; communicating; and working.
     
  • Includes within the definition of “major life activity” the “operation of major bodily functions.” This includes, without limitation: functions of the immune system; normal cell growth; and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.
     
  • Defines the standard for being “regarded as disabled” as: “establishing that the individual has been subjected to action prohibited under the [ADA Amendments Act] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”
     
  • Provides that employers do not need to reasonably accommodate “regarded as” cases, and says that “regarded as” cases cannot arise out of an impairment that is “transitory and minor.” A “transitory” impairment is defined as having an actual or expected duration of less than six months.
     
  • Purposefully remains silent on any requirement of permanency to meet the definition of “disability.” The ADA Amendments Act only excludes “transitory or minor” impairments from the definition of “regarded as” disabled. It does not provide similar limitation to the definition of a “disability.” It should be presumed, therefore, that transitory impairments that substantially limit a major life activity constitute disabilities under the ADA Amendments Act.
     
  • Prohibits employment discrimination against a qualified individual due to the type of their disability, as opposed to prohibiting employment discrimination against a qualified individual due to the mere existence of a disability.
     
  • Prohibits the use of qualification standards, employment tests or other selection criteria based on an individual’s uncorrected vision unless those standard criteria are directly related to the position and are necessary for the job.

Among other critical points to be aware of, this new legislation states that nothing in the act alters the standards for determining eligibility for benefits under state workers’ compensation laws or under state and federal disability benefit programs. Nothing alters the requirement to make reasonable modifications in policies or procedures, unless such modifications would fundamentally alter the nature of the goods, services, facilities or accommodations involved. And nothing provides the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual’s lack of disability.


The next steps for employers
So, what does this all mean to employers? That’s the big question, and we will not truly know the answer until various agencies, including the EEOC, the U.S. Attorney General’s Office and the Department of Transportation, issue regulations providing more guidance.
In the meantime, it is best for employers to take a cautious approach by following these seven steps to compliance with the ADA Amendments Act:


1. Assume all employees are perfectly healthy. Never assume any employee has an impairment of any type. This will prevent employers from making the mistake of determining that an employee has a disability, regardless of whether the regarded disability limits a major life activity. Avoid that trap by presuming nothing.


2. When an employee comes to you claiming an impairment, assume that the impairment does in fact qualify as a disability under the ADA Amendments Act. To reiterate a key point: In determining whether an employer had unlawfully discriminated against a qualified individual with a disability, there will be little scrutiny or analysis of whether the claimed impairment qualifies as a disability. Moreover, the ADA Amendments Act’s all-expansive list of what qualifies as a “major life activity” leaves little doubt that practically any impairment will be deemed a disability. The employer will be safer to assume from the outset that an impairment qualifies as a disability than trying to argue later that it does not.


3. Make all reasonable attempts to accommodate an employee’s impairment. The only instance in which an employer will not have to reasonably accommodate a disability is if the accommodation would create an “undue hardship.” Numerous factors can constitute an undue hardship, but the bottom line is that unless the reasonable accommodation is so burdensome or expensive that it will completely change the nature of the business or the ability to provide services, the employer will have to provide a reasonable accommodation.


4. Review and revise all of your job descriptions. An employer’s defense against an ADA Amendments Act claim is likely to rest on whether the disabled employee was “qualified” to perform the essential functions of his or her job. Thus, employers will be better able to prove what the essential functions of the job are, and that the employee is not qualified, if the employer has detailed and current job descriptions for each position.


5. HR and managers should start training now about the ADA Amendments Act. The act imposes so many changes to the ADA and the cases interpreting the ADA over the past 10 years that employers need to act as if they are starting from scratch. HR should treat the ADA Amendments Act as an entirely new law. Both HR and managers should immediately be trained about its requirements.


6. Implement new disability policies, or modify existing ones. It’s very likely that most employers’ disability policies will need to be updated based upon the act. Employers should make changes to those current policies or implement entirely new policies as soon as possible.


7. HR and managers should update their training as regulations are issued and as the courts interpret the ADA Amendments Act. The impact of the ADA Amendments Act will not be static; its effects are going to continue to unfold over time. By staying up to date and knowledgeable about these changes, organizations will be able to avoid unintentionally violating the vastly expanded provisions of the new act.