Tag: Employment Law

Cal/OSHA Proposes Workplace Violence Prevention Standards in Health Care

California’s Division of Occupational Safety and Health (“Cal/OSHA”) has made the Golden State the first in the nation to propose standards specifically aimed at protecting health care workers against workplace violence.

According to the U.S. Bureau of Labor Statistics, the rate of injuries and illnesses from violence in the health care industry is more than three times greater than that for all private industries. Supporters of California’s proposed standards argue that these statistics indicate workplace violence is a serious occupational hazard for health care workers, warranting the need for hospitals and other healthcare facilities to develop and implement a workplace violence prevention plan.

The federal Occupational Safety and Health Administration provides guidance and training materials to combat workplace violence in the healthcare industry, but it has no specific regulations in place. Instead, it relies on the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970, to cite employers for hazards involving workplace violence.

In California, as a result of petitions to the Occupational Safety and Health Standards Board by two health care worker unions, and subsequent advisory committee meetings held by the Cal/OSHA, the state passed legislation in September 2014, requiring that standards be issued to address Workplace Violence Prevention in Health Care. The Board recently released the proposed standards to the public for comment. A public hearing on the proposal is scheduled for December 17, 2015. The new standards must be adopted by July 1, 2016.

In the proposed standards, workplace violence “is defined as any act of violence or threat of violence that occurs at the work site,” including “the threat or use of physical force against an employee that results in, or has a high likelihood of resulting in injury, psychological trauma,” or an “incident involving the threat or use of a firearm or other dangerous weapon.” In all instances, under the proposed standards, it is immaterial whether the employee sustains an injury. The definition encompasses four types of violent encounters, whether committed by: (1) someone with “no legitimate business;” (2) a person who is the beneficiary of the services provided; (3) a current or past employee; or (4) someone who “has a personal relationship with an employee.”

The proposed regulations apply to hospitals and other health care facilities, such as outpatient medical offices and clinics; home health care and home-based hospice; paramedic and emergency medical services; field operations (e.g., mobile clinics); drug treatment programs; and, ancillary health care operations.

The cornerstones of the proposed regulations address:

  1. Establishing a workplace violence prevention plan that includes active employee involvement;
  2. Identifying and evaluating environmental risk factors, such as employees working in isolated locations, poor illumination or blocked visibility, lack of physical barriers and escape routes, obstacles and impediments to accessing alarm systems and storage of high-value items, currency or pharmaceuticals;
  3. Identifying and evaluating patient-specific workplace violence risk factors by utilizing assessment tools, decision trees, or algorithms;
  4. Correcting hazards related to workplace violence in a timely manner and implementing corrective measures, such as: providing line of sight or other communication in all areas in which patients may be present; configuring spaces so that employees have access to doors and alarms; removing or fastening furnishings and other objects so they cannot be used as weapons; creating a security plan for prevention of the transport of unauthorized firearms and other weapons in the facility; maintaining sufficient staffing; and maintaining an alarm system;
  5. Providing specific training and education to all health care workers who provide direct care to patients at least annually;
  6. Setting up a system to respond to and investigate violent incidents and situations or the risk of violent incidents and situations;
  7. Assessing annually the program and making improvements to help prevent workplace violence; and
  8. Making and retaining records for five years of any violent incident against a hospital employee, regardless of whether an injury was sustained.

The proposed regulations also require that a covered healthcare facility report violent incidents to Cal/OSHA. If the incident results in injury, involves the use of a firearm or other dangerous weapon, or presents an urgent or emergent threat to the welfare, health or safety of hospital personnel, the healthcare facility must report the incident to Cal/OSHA within 24 hours. All other incidents of violence must be reported to Cal/OSHA within 72 hours.

Starting in 2017, Cal/OSHA will post a report on its website containing information regarding the total number of workplace violence reports and which specific healthcare facilities filed reports, the outcome of any related inspection or investigation, the citations levied against a facility based on a violent incident and any recommendations by Cal/OSHA on the prevention of violent incidents.

Article By Nickole C. Winnett of Jackson Lewis P.C.

Jackson Lewis P.C. © 2015

UK Holiday Pay Inactivity – Inertia or Strategy?

We were in the hallowed legal portals of Farringdon’s Bleeding Heart Restaurant last week for a client dinner on the still vexed issue of holiday pay. “Hallowed legal portals”, because so far as I know, no other restaurant has been cited so frequently in the employment law reports as just the only place to go for a decent spot of covenant-busting and a little post-prandial breach of fiduciary duties.  They also do a very good coffee.

We had to open with an acknowledgement – that despite the absolute nature of my recollection, Peter O’Toole had not said in the film Lawrence of Arabia that “doing nothing was generally best”. Apparently it was Anthony Quayle.  Pressing on despite this setback, our dinner guests considered with the kind contribution of a senior member of the Engineering Employers Federation’s Employment Policy Team whether doing nothing could really remain a sensible holiday pay position at this stage, a full year after the EAT’s decision in Bear Scotland.

Despite the breadth of sectors represented, including retail, financial services, recruitment and advertising, there was a remarkable commonality of view. While it was of course sensible to be providing behind the scenes for some possible accrued holiday pay liability, none of our guest organisations had yet sought any negotiation or reached any agreement with staff representatives (unionised or not) about the inclusion of overtime or commissions in holiday pay calculations.   Despite this inaction, only one of our attendees had had a Tribunal claim on the point.  This is a function perhaps of the relatively limited quantum of most holiday pay claims per individual, a sum which will often be less than the Tribunal fees incurred in making the claim in the first place.

We floated the proposition that an employee’s entitlement to an allowance for commission or overtime in his holiday pay should depend upon his being able to show (at least on a balance of probabilities) that he would have earned that extra money had he not been on leave, i.e. that he had suffered some actual loss. Most of our attendees seemed willing to take that loss as a given based on recent average overtime or commissions rates. Where such extra earnings are pretty regular and pretty consistent, that might well be a sensible approach.  However, the financial services attendee, being from a sector which pays fewer but larger supplementary sums above salary, could see some mileage in this argument.  If such a lumpy payment fell within the reference period for the holiday pay calculation, it could seriously distort the figure and turn it into a number wholly unconnected with what the employee would actually have earned had he not been on leave.  None of the cases or commentaries have yet mentioned this possibility (apart from the most throw-away line in the Acas Guidance http://www.acas.org.uk/holidaypay). Nonetheless, it will surely gain new legs as an idea if and when the Government confronts the reality of drafting legislation to define a “normal pay” formula which works equally well over the myriad different shapes and sizes of supplementary payment arrangements in the UK market.

Might some clarity on this be derived from Mr Cameron’s impending begging session in Europe? His original podium-thumping was about procuring material changes to the Working Time Directive as applicable to the UK, but his formal overture was watered down to a gripe about lessening employer red tape.  The collective view around our table was that the EU will listen politely to Mr C and give him nothing.  The more cynical among our guests (that is to say, all of them) considered that he would then introduce some “clarificatory” amendments to the Working Time Regulations which would make little or no actual impact on employers but could be presented to a puzzled electorate as an indication of the merits of his tough stance in Europe.

I asked our guests at the outset of the dinner what they wanted from it. Almost exclusively it was reassurance that they were not alone or acting foolishly in doing nothing about holiday pay at this stage.  In cases where there are no unions, no pressing reputational issues and no easy means of determining what supplement to holiday pay would be appropriate anyway, it was reassurance which we were happy to give.

Article By David Whincup of Squire Patton Boggs (US) LLP

© Copyright 2015 Squire Patton Boggs (US) LLP

The Viral Spiral: How An Employee’s Facebook Post Dragged Her Employer Into A Social Media Controversy

Instances of deplorable racism have sparked recent protests on the University of Missouri’s campus. Not surprisingly, these protests have received a significant amount of media attention. On Nov. 13, 2015, however, the world’s attention shifted to the horrific terrorist attacks in Paris. We have since been inundated with 24-hour news coverage on developments related to the war on terror.

Following the Paris attacks, the Washington Times released a story explaining how University of Missouri protestors had taken to Twitter to express disappointment with the fact that this tragedy was directing media attention away from their cause. College student Emily Faz, an employee of Wild Wing Café, apparently found this development unsettling. So what did she do? Faz took to Facebook to disseminate her opinion regarding the Washington Times article. Here is the content of her post:

I’m just going to leave this here. I swear if I see this B* at Southern, I’ll make you regret even knowing what a movement or a hashtag is, and you’ll walk away with your tail tucked. This whole black lives matter movement is misguided and out of hand. Maybe no one likes or takes y’all seriously because no one can see past your egotistical B*******. Some people might just look past it, but fair warning I’m am (sic) not one. All lives matter, that has always been the case, and you are part of the problem if you think other wise (sic).

Faz’s controversial post didn’t just go viral: it created a social media firestorm. Thousands of individuals took to Facebook and Twitter to condemn Faz’s commentary. Despite the criticism, a large number of supporters rushed to Faz’s defense. Many supporters claimed Faz was the target of a social media “witch hunt.” In their subjective view, Faz had done nothing more than share her opinion on a controversial subject. Nevertheless, she was being made the target of a significant amount of online harassment.

The ongoing debate intensified when the Internet turned its attention to Wild Wing Café. The business started receiving messages calling for Faz’s termination. The attention also unquestionably disrupted the company’s business operations.

What happened next? Rumors started to circulate that Wild Wing Café had terminated Faz’s employment. So Faz’s supporters took to Twitter to protest the company’s decision. The rumor was incorrect. The company did not terminate Faz’s employment and ultimately issued a statement to set the story straight.

Will Faz remain employed by Wild Wing Café? We don’t know. And that is not really the focus of this blog post. The issue we would like employers to focus on is this: A controversial Facebook post sparked a social media frenzy that unquestionably impacted this employer’s day-to-day operations.

The Big Picture

Faz’s Facebook post provides a vivid example of how an employee’s social media activity can have a very real impact in the workplace. This raises an important question: What should an employer do if an employee’s social media post goes viral and negatively impacts business operations?

Well, for starters, avoid the knee jerk reaction. Take a step back and evaluate the content of the post. For example, does it violate the company’s EEO policy? Does it provide evidence of a discriminatory animus? Examining social media content from this angle is critical to making an informed decision.

Additionally, consider whether the National Labor Relations Act (NLRA) will have an impact on your analysis. The NLRA provides some protection to employees engaging in social media activity when the content amounts to “protected concerted activity.” This occurs when two or more employees take action for their mutual aid or protection regarding the terms and conditions of employment (e.g., wages, hours, safety, etc.). For example, a social media controversy created by a group of employees complaining about wages may fall within the scope of “protected concerted activity.” As such, examining the social media content from this angle is also critical to making an informed decision.

Moreover, if an employer is leaning towards termination, evaluate whether the company may be setting itself up for a lawsuit. For example, has the company allowed controversial posts in the past? Will the employee be able to point to similarly situated individuals who received more favorable treatment? This is yet another angle an employer will have to consider in order to formulate a game plan.

What’s the bottom line? It’s all about assessing risk. And properly assessing risk will involve a careful analysis of the facts specific to each case. Employers are therefore encouraged to involve outside counsel when navigating this minefield.

One final note: We’ve repeatedly emphasized that it is critical for employers to monitor what is trending on the Internet. The debate regarding Faz’s social media activity only serves to underscore this point. To be sure, keeping up on what is trending probably won’t stop a controversial social media post from going viral,but it may provide an employer with more lead time to formulate a game plan.

Article By Peter T. Tschanz of Barnes & Thornburg LLP
© 2015 BARNES & THORNBURG LLP

Let’s Talk Turkey: Wage/Hour and Other Laws to Feast on Over Thanksgiving

We all know that employers do not receive “time off” from applicable employment laws during the holidays. To avoid unnecessary holiday headaches, be mindful of the following issues as you conduct your workplace holiday staffing and planning.

Comply with your Policies and Collective Bargaining Agreements

Remember to abide by the applicable holiday provisions of your policies, agreements, or collective bargaining agreements. Pay for unworked time on recognized holidays; how time worked on holidays is computed or paid; and eligibility requirements for receipt of holiday pay are often a matter of policy or contract. Breaching such provisions—or disparately enforcing them—can give rise to a claim, charge, or grievance.

Think Beyond your Holiday Policy—Comply with Wage Laws

Be mindful of wage payment laws when you are planning office closures to ensure that you do not run afoul of state requirements governing the time, frequency, and method of paying earned wages. Also, remember that time worked on a holiday should be counted as “hours worked” for purposes of overtime laws, regardless of whether you provide a holiday premium or other benefit.  Further, be careful about making deductions from exempt employees’ salaries for time off around the holidays so as not to jeopardize the exempt status—a company closure for the holidays is not listed among the Department of Labor’s enumerated instances of proper reasons to make deductions under the salary basis rules of the Fair Labor Standards Act.

No Break from Meal and Rest Period Laws

Even if your employees are frantically setting up holiday displays or assisting eager consumers on Black Friday, provide meal and rest periods in accordance with state law. Many states require that employers provide meal and break periods, and the frequency and timing of such periods are often dependent upon the total number of hours worked in a day. For instance, Illinois employers must allow a meal break for employees working 7.5 continuous hours or longer within 5 hours of starting work; New York’s Department of Labor guidelines specify requirements for a “noonday” meal period between 11:00 a.m. and 2:00 p.m., with additional meal periods for shifts extending into specified evening hours.

Also, while bona fide meal breaks of a sufficient duration can generally be unpaid, beware that restrictions, duties, or parameters on such breaks might run afoul of your state’s law and can make a meal period compensable.

A “Blue” Christmas

If your business has operations in one of the few states that impose “Blue Law” requirements for business operations on holidays, then be aware of obligations or restrictions that might apply. For instance, if you operate in Massachusetts, then you might be required to obtain a local permit and/or be subject to extra pay or other standards for employees working on a holiday. In Rhode Island, you might be subject to an overtime pay rate on holidays or other requirements.

Be sure to check your state and local laws to confirm applicable standards.

Accommodate Observation of Holidays Due to Religious Beliefs

Finally, remember that Title VII of the Civil Rights Act of 1964 and many state or local laws require employers to reasonably accommodate employees’ sincerely held religious beliefs, unless doing so would cause an undue hardship. “Religion” can include not only traditional, organized religions such as Judaism, Islam, Christianity, Hinduism, and Buddhism, but also sincerely held religious beliefs that are new, uncommon, not part of a formal church or sect, or only held by a small number of people.

Thus, while your company may be closed on Christmas Day, you may need to allow an employee time off to celebrate a religious holiday that your company does not recognize. Businesses can accommodate in the form of time off, modifications to schedules, shift substitutions, job reassignments, or other modifications to workplace policies or practices.

Breaking News: Refusing to Allow an Employee to Rescind His Or Her Voluntary Resignation Can Get You Sued

Here is the scenario. Your employee decides to voluntarily resign. She gives plenty of notice. Before her scheduled end date, the employee provides information relevant to a sexual harassment investigation involving her supervisor. Before the scheduled end date, the employee tries to rescind her employment. The supervisor refuses. Here’s the question: Is the refusal to allow the employee the opportunity to rescind her resignation an “adverse employment action” for purposes of a retaliation claim?

It could be, at least according to the Fifth Circuit Court of Appeals. A similar scenario played out in Porter v. Houma Terreboone Housing Authority. According to the court:

“Just as an at-will employer does not have to hire a given employee, an employer does not have to accept a given employee’s rescission. Failing to do so in either case because the employee has engaged in a protected activity is nonetheless an adverse employment action.”

This is something employers need to be aware of. Remember: thoroughly investigate all work place harassment claims. Also, separate the subject of the investigation from any decisional process regarding the employee’s employment. In a perfect world, the decision-maker would not have any knowledge regarding the employee’s “protected activity.”

Article By Peter T. Tschanz of Barnes & Thornburg LLP

© 2015 BARNES & THORNBURG LLP

Employers: Twitter is Going Crazy Over #InternationalMensDay Hashtag

This will be a short post. Earlier this week we posted an article that discussed the need for employers to stay on top of what is trending on the Internet. Why? Because trending topics can sometimes lead to controversial discussions that might not be consistent with an employer’s EEO Policy. As a result, we explained that it would be prudent to understand what may be the current topic being discussed around the watercooler. Here is a follow up to that article:  The #InternationalMensDay hashtag is currently trending on Twitter (right now at 114K tweets). What is the relevance of this topic to employers? A quick search shows that a lot of the content posted can be construed as inappropriate and/or discriminatory (although presumably meant to be humorous).  It’s the middle of the work day where we are – so we can only presume a lot of this content is being posted by employees in the workplace.

Remember: Title VII and many state laws prohibit discrimination based on gender. The more questionable content generated in the workplace, the better chance an employee can argue there is evidence of a  convincing mosaic of discrimination tolerated by the employer. Be sure to remind employees of your company’s EEO policy if you come across any inappropriate content and/or discussions. And, as always, be sure to stay on top of trends that may have an impact in the workplace.

ARTICLE BY  Peter T. Tschanz of Barnes & Thornburg LLP
© 2015 BARNES & THORNBURG LLP

Trending Now: How Latest News Going Viral Can Lead to Employment Litigation

A downed Russian airliner, the tragic Paris attacks, the European refugee crisis, states closing their borders to Syrian nationals, Charlie  Sheen’s HIV diagnosis. What do these all have in common? They are hot topics for discussion around the watercooler.  And they also will bring out a multitude of opinions.  What’s the problem?  Opinions can be controversial and, to some, down right offensive.  Healthy debate about how the United States should handle the war on terror could be construed as evidence of religious discrimination (in some cases).  Discussion regarding Charlie Sheen’s HIV diagnosis can also quickly spiral out of control and later be construed as evidence of disability discrimination.  It’s a problem and employers need to be aware of it.

So how can you protect yourself?  Well, you certainly cannot stifle discussion about what is happening outside of the workplace.  Nevertheless, employers are encouraged to step up, stay on top of what’s trending and put a stop to any discussion that could reasonably be construed as inconsistent with the Company’s EEO policies.  You won’t be popular.  But let’s face it:  running a business is not about winning a popularity contest.

Want to stay on top of what’s trending?  Create a Twitter account and keep apprised of the most popular hashtags.  The amount of work is minimal and you’ll be tuned in to what topics are floating around the workplace.

Article By Peter T. Tschanz of Barnes & Thornburg LLP

© 2015 BARNES & THORNBURG LLP

Employment Law This Week – Episode 5 – Week of November 16, 2015 [VIDEO]

We look at the latest trends, important court decisions, and new developments that could impact your work.  This week’s topics …

(1) OSHA Fines Rise

OSHA fines are set to increase for the first time in 25 years. Under the new bipartisan budget bill, OSHA civil penalties will rise next year to reflect the difference between the Consumer Price Index in 1990 and in 2015—an increase of as much as 82%. After this “catch up” adjustment, the fines will keep pace with inflation moving forward.

(2) Supreme Court to Review ACA’s Contraception Opt-Out

The Affordable Care Act’s (ACA’s) birth control provisions are heading back to the U.S. Supreme Court. At issue is whether the ACA’s opt-out process violates the Religious Freedom Restoration Act. Under the opt-out, religious organizations do not have to pay for contraception, but other accommodations are made so that employees will still receive coverage. The high court will review a consolidation of seven cases to decide whether the opt-out “substantially burdens” religious freedom. Like last year’s landmark Hobby Lobby decision, this case addresses the extent to which corporations have the same rights as natural persons and how those rights affect a company’s legal obligations towards its employees. This is the latest case, but undoubtedly not the last one, on this topic.

(3) NLRB Finds That Chipotle Illegally Fired Worker for Discussing Wages

The National Labor Relations Board (NLRB) ruled that Chipotle illegally fired an employee for participating in minimum wage protests. The NLRB ruled that the firing by the chain was a violation of the National Labor Relations Act. Though the employee’s supervisor claimed he was fired for poor performance, the NLRB found that the firing was motivated by the employee’s participation in the protests and his discussion of pay with other employees. Other restaurants are facing similar charges from the NLRB arising from the “Show Me 15” protests.

(4) Wages for Off-the-Clock Security Screenings

Two federal class actions challenging off-the-clock security screenings reach different outcomes. Bath & Body Works recently agreed to settle a suit in California over unpaid overtime and off-the-clock security inspections. But a federal judge in the same state dismissed a similar class action against Apple in which retail workers claimed that they should be compensated for time spent having their bags checked. The judge concluded that the employees were not performing job duties and could avoid the screenings by not bringing a bag or cell phone to work.

(5) In-House Counsel Tip of the Week

Eugene Schlanger, a regulatory and compliance attorney, gives some advice on how to prepare for employment issues before they arise.

By George Carroll Whipple, III of Epstein Becker & Green, P.C.

©2015 Epstein Becker & Green, P.C. All rights reserved.

Lawrence of Arabia Makes Surprise Contribution to UK Holiday Pay Debate

There is a line in, I think, Lawrence of Arabia where a terrified young soldier trapped under fire with a small group of his colleagues asks Peter O’Toole as Lawrence what they  are going to do.  “Nothing”, drawls O’Toole languidly, “After all, it’s generally best”.

And so by a tenuous little link to the question of amending your holiday pay calculations to reflect the new jurisprudence around including an allowance for overtime and/or commission.  Have you been sitting in your office wondering why no one seems able to tell you exactly what you need to do?  Have you been approached for a deal by your union on the basis that everyone else has sorted it out and only your company still has its head over the parapet?

You are not as alone as you may feel.  A survey of over 1,000 companies of a wide variety of sizes, sectors and employee representation structures provides the answers and a number of interesting statistics:-

  • Of all respondents, a full 73% have yet to take any steps to amend their holiday pay calculations. Those union claims may perhaps be taken with a pinch of salt.

  • Of the 27% who have changed their holiday pay arrangements, only a small majority (less than 60%) have unionised workforces.

  • Where changes to holiday pay include use of a reference period, the period invariably picked has been twelve weeks. That is even though that period has yet to be enshrined in law and even though those responses came from sectors as diverse as construction, aviation, retail and banking.  Employee numbers in those businesses ranged from less than 100 to over 45,000.  It therefore appears that for all the uncertainties and injustices both ways which such a reference period can generate (and despite the enormous spread of overtime and commission schemes in use over that population) twelve weeks will likely be the default position for voluntary holiday pay agreements.

  • Where respondents have reached agreements with their workforces about alterations to holiday pay calculations, these have all been forward-looking. None of respondents refer to any accommodation being reached in relation to any notional arrears.

  • The principal factors leading to changes in those 27% of employers were (i) awareness of the case law (i.e. the perceived inevitability of having to do something at some stage) followed by (ii) union/employee pressure (though of the 73% who had made no change, only one admitted to receipt of a Tribunal claim), and (iii) brand/reputational factors.

  • Where changes have been made, half had applied them to the full UK 5.6 week holiday entitlement. About a quarter of respondents had limited the changes to the Working Time Directive four week minimum and a further quarter did not specify which.

  • Of those cases where changes had not been made, nearly 85% of employers had also taken no steps to amend their commission/overtime structures to minimise the scope for employee claims.

So in other words, whether or not it is generally best, doing nothing does seem thus far to be the principal employer response to the holiday pay question.  There are good objective reasons to support such a stance at this point, including in particular the absence of Government guidance, the uncertain direction (in matters of detail, at any rate) of the case law, and the relatively limited number of unions willing to undertake the colossal logistical exercise of collective Tribunal claims.  There is no reason to expect much change in the first two factors in the near future, but whether that last point will remain valid if employer indifference persists at such a high rate is an open question.

Article By David Whincup of Squire Patton Boggs (US) LLP

© Copyright 2015 Squire Patton Boggs (US) LLP

EEOC Seeks to Clarify Application of GINA to Wellness Programs

Earlier this year, the Equal Employment Opportunity Commission (“EEOC”) published a proposed rule that would amend the agency’s regulations and interpretive guidance implementing Title I of the Americans with Disabilities Act (“ADA”) as they relate to employer wellness programs. Now, the EEOC has turned its attention to Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) as it relates to employer wellness programs that are part of group health plans.

On October 20, 2015, the EEOC issued a proposed rule, or Notice of Proposed Rulemaking (“NPRM”), to amend the regulations implementing Title II of GINA, together with a fact sheet and a series of questions and answers. The proposed rule, which is available in its entirety online, would allow employers that offer wellness programs as part of group health plans to provide limited financial and other incentives or “inducements” in exchange for an employee’s spouse providing information about his or her current or past health status.

Title II of GINA protects job applicants and current and former employees from employment discrimination based on their genetic information. As stated in the NPRM, Congress enacted GINA to address concerns prevalent at the time that individuals would not take advantage of the increasing number of genetic tests that could inform them as to whether they were at risk of developing specific diseases or disorders due to fear that genetic information would be used to deny health coverage or employment. Consequently, GINA expressly prohibits employers with 15 or more employees from using genetic information in making decisions about employment in all circumstances, without exceptions. It also restricts employers from requesting, requiring or purchasing genetic information. In addition, it strictly limits employers from disclosing genetic information. Genetic information includes, among other things, information about the manifestation of a disease or disorder in the family members of an individual. The term “family members” includes spouses.

There are only six very limited circumstances under GINA in which an employermay request, require, or purchase genetic information about an applicant or employee. One of the six exceptions applies when an employee voluntarily accepts health or genetic services offered by an employer, including such services offered as part of a wellness program. The proposed regulations are in response to the numerous inquiries received by the EEOC questioning whether an employer violates GINA by offering an employee an inducement if the employee’s spouse who is covered under the employer’s group health plancompletes a health risk assessment that seeks information about the spouse’s current or past health status, in connection with the spouse’s receipt of health or genetic services as part of an employer-sponsored wellness program.

The proposed regulations would clarify that GINA does not prohibit employers from offering limited inducements (whether in the form of rewards or penalties avoided) for the provision by spouses covered by the employer’s group health plan of information about their current or past health status as part of a health reimbursement account, which may include a medical questionnaire, a medical examination (e.g., to detect high blood pressure or high cholesterol), or both, as long as the provision of the information is voluntary and the individual from whom the information is being obtained provides prior, knowing, voluntary, and written authorization, which may include authorization in electronic format. The proposed regulations do not allow inducements in return for the spouse’s providing his or her own genetic information (including results of his or her genetic tests), for the current or past health status information of an employee’s children, or for the genetic information of an employee’s child.

The proposed regulations would include a requirement that any health or genetic services provided in connection with the requests for genetic information be reasonably designed to promote health or prevent disease, thereby aligning GINA’s regulations with those promulgated under the ADA as they relate to wellness programs. (The ADA permits employers to collect medical information as part of a wellness program only if the program and the disability-related inquiries and medical examinations that are part of the program are reasonably designed to promote health or prevent disease.) As discussed in the NPRM, collecting information on a health questionnaire without providing follow-up information or advice would not be reasonably designed to promote health or prevent disease. Additionally, a program would not be deemed reasonably designed to promote health or prevent disease if it imposes, as a condition of obtaining a reward, an overly burdensome amount of time for participation, requires unreasonably intrusive procedures, or places significant costs related to medical examinations on employees. A program is also not reasonably designed if it exists merely to shift costs from the employer to targeted employees based on their health.

The proposed regulations would limit the total inducements (both financial and in-kind inducements, such as time-off awards, prizes, or other items of value, in the form of either rewards or penalties) to the employee and spouse to participate in a wellness program that is part of a group health plan and collects information about current and past health status to not more than 30 percent of the total cost of the plan in which the employee and any dependants are enrolled. The maximum portion of an incentive that may be offered to an employee alone may not exceed 30 percent of the total cost of self-only coverage.

Finally, it is important to note that this proposal would not alter GINA’s absolute prohibition against the use of genetic information in making employment decisions.

The EEOC’s approach to wellness programs is still developing, and interested members of the public have until Tuesday, December 29, 2015, to submit comments on the NPRM to the EEOC in order to seek clarity or request changes and/or additions to the proposed rules.

Article By Mary Pat Gallagher of Gonzalez Saggio & Harlan LLP

Gonzalez Saggio & Harlan LLP | Copyright (c) 2015