The Equal Employment Opportunity Commission’s (EEOC) regulatory agenda indicated that it intends to finalize its two rules governing employer wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA) by February 2016. You can read about the proposed ADA changes here. The EEOC just recently published its proposal

We would like to thank Adam Bennett, one of Porter Wright’s summer law clerks, for his significant contributions to this blog post.

If a recent federal court case is any sign of the times, employers should think twice before engaging in their own forensic crime scene style investigations of employee questionable behavior—even if the employee

Recent media accounts (e.g. this report — Blood Test Predicts Alzheimer’s Disease — by CNN ) suggest that medical researchers have discovered a blood test that will help identify whether people are likely to develop Alzheimer’s Disease in their lifetime with 90% accuracy. So far, the test only has been conducted on individuals who are over 70 years old, but researchers will begin seeing whether these promising results can be obtained on people in their 40’s and 50’s. These research findings are obviously welcome news, but raise many questions assuming the test becomes more universally available. Not the least of these questions will be whether people really will want to know their fate. Any number of factors will likely play into any one person’s decision, but whether obtaining the test will have any impact on his or her employment should not be one of them.
Continue Reading Availability of alzheimer’s blood test underscores employer need to maintain confidentiality of protected health information

We have been receiving questions lately from clients and friends regarding the continued validity of the Department of Labor’s FMLA forms that we posted here. The Department has requested approval for the renewal of these forms from the federal Office of Management and Budget. In the meantime, employers may continue to use these forms.

According to statistics released by the Equal Employment Opportunity Commission (“EEOC”) earlier this week, the Agency received over 7% more charges in 2010 than it did the previous year—99,922 as compared to 93,277.  Indeed, the number of charges filed were up in every category.  The FY 2010 enforcement and litigation statistics, which include trend data, are available

In the day-to-day administration of their Ohio workers’ compensation programs, self-insured employers (or a TPA or law firm on their behalf) often will obtain a medical authorization from the injured worker and then obtain medical records as part of the employers’ medical investigation. Though the authorization is often limited to specific injuries or body parts, they are just as likely not to be so limited. In addition, despite HIPAA requirements, healthcare providers often produce records in excess of what has been authorized (presumably because they don’t want to take the time or effort to cull through the records and produce only what has been asked for.)  As a result, the records obtained frequently will include medical information wholly unrelated to the alleged workers’ compensation injuries and sometimes that information reveals genetic information, such as whether an individual had a test done to determine whether she is at greater risk for breast cancer.  Hospital records are notorious for including family history information that may reflect, for instance, that a parent died of cancer or a heart attack at a relatively young age, even when the individual went to the hospital only to have an injured knee looked at.

As a result, in the workers’ compensation context, employers are frequently obtaining genetic information even though they really haven’t asked for it.  Should the EEOC’s final rule on Title II of GINA then have any impact on employers’ approaches to their medical investigations conducted in the defense of workers’ compensation claims?  Though the rule states that GINA is not intended to “limit or expand the protections, rights, or obligations of employees or employers under applicable workers’ compensation laws,” does that language provide clearance to employers to obtain through its workers’ compensation administration what otherwise would be protected genetic information?  According to the EEOC, “genetic information” does not include the fact that an individual has a diagnosed disease, disorder, or pathological condition, so it is difficult (at least for me) to come up with examples of situations when an employer would need genetic information on an employee to assist in the defense of a workers’ compensation claim.  Therefore, one could argue that application of GINA to an employer’s medical inquiries and examinations for workers’ compensation purposes does not limit an employer’s rights or expand an employee’s protections under the workers’ compensation laws.

 Continue Reading Will GINA Impact Ohio Employers’ Ability to Conduct Medical Investigations In Workers’ Compensation Claims?

Earlier this week, the EEOC issued its final rule implementing Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which was published in the Federal Register on Tuesday, November 9, 2010. As promised, we are following up with our analysis of the EEOC’s new rule.

The proposed regulations were issued in March 2009 for public comment. Title II took effect almost a year ago on November 21, 2009, before the regulations were finalized. GINA prohibits the use of genetic information in employment decisions and restricts employers and other entities from requesting, requiring or purchasing genetic information. Title II also requires that genetic information be maintained as a confidential medical record, and places strict limits on its disclosure. 

GINA applies to an individual’s status as an employee, member of a labor organization, or participant in an apprenticeship program. The final rule, like the proposed rule, includes applicants and former employees in the definition of employee. 

The regulations clarify that they do not apply to an employer’s actions that do not pertain to an individual’s status as an employee, such as a law enforcement agency investigating criminal conduct, even where the subject of the investigation is an employee, or a healthcare facility providing a medical examination to an employee for the purpose of diagnosis and treatment unrelated to employment. 

 Continue Reading EEOC Issues Final Rule to Implement Title II of GINA

On October 7, 2009, the DOL, IRS, and HHS issued interim final regulations implementing Sections 101 to 103 of the Genetic Information Nondiscrimination Act of 2008 (GINA). For group health plans, these regulations become effective on the first day of the plan year beginning on or after December 7, 2009. For the individual market, the