(FMLA) Form Over Function

New FMLA forms appear to be around the corner. In 2008, the U.S. Department of Labor issued a set of forms, which were intended to assist employers in reviewing and granting requests for leave under the Family Medical Leave Act (FMLA). Updated forms have been submitted to the federal Office of Management and Budget (OMB), but have not yet been approved.

Until new forms are issued, the U.S. DOL has indicated that the old forms may continue to be used. However, employers should note that the 2008 forms do not account for recent changes in the law. The most significant change since the forms were issued is the publication of regulations implementing the Genetic Information Nondiscrimination Act (GINA). The GINA regulations were issued in 2010 and took effect in January 2011.

GINA generally prohibits employers from obtaining employees’ genetic information, except in limited circumstances. Because of the broad scope of GINA’s prohibition, many employers were concerned about its impact on their businesses. The regulations issued in 2010 addressed many of these concerns, and created an exception where employers inadvertently obtain an employee’s genetic information. In order to take advantage of this exception, employers are advised to include “safe-harbor” language in medical forms, including FMLA documentation. We’ve addressed the FMLA-GINA safe-harbor issue and provided sample language in previous posts. The 2008 FMLA forms issued do not contain this safe-harbor language, so employers should consider adding it as a temporary solution until new forms are approved.

Ensuring Your Wellness Programs Do Not Violate GINA

It has come to our attention recently that many wellness programs are not in compliance with the Genetic Information Nondiscrimination Act (GINA) regulations, which went into effect in January of this year. Group insurers and employers must construct such programs carefully to ensure that they don’t run afoul of GINA’s prohibitions.

GINA prohibits the request of genetic information (which includes family medical history) by classified employers or group health insurers, but includes an exception for voluntary wellness programs under certain conditions. Health risk assessment (HRA) questionnaires are often included as part of a wellness program solicit genetic information, and often seek information that would be considered genetic information under GINA, e.g., “Does your family have any history of cancer, heart disease, or other illness?” Following passage of the law, it was not entirely clear what constituted “voluntary” versus “involuntary” wellness programs, and whether or not monetary incentives offered for participation rendered the program involuntary. The regulations issued in late November 2010 and now in effect addressed this question specifically.

Employers and insurers will not be in violation of GINA if they are not required to provide genetic information nor penalized for refusing to do so. For example, if employees are offered $100 to complete a health risk assessment with questions about genetic information, employees should be told that answering the genetic questions is voluntary, and that the $100 will be paid whether or not these questions are answered. The same goes if completion of the HRA makes the employee eligible for a raffle with prizes.

If, for example, a workplace wellness program requires employees to fill out HRAs, and the HRA contains common questions requesting family medical information, or even broad questions such as “Are there any other health matters that you would like to discuss?” the insurer and the employer could, under certain circumstances, be in violation of GINA.

Employers and insurers can work around these GINA prohibitions to create an effective wellness program. The most straightforward approach is to have no rewards offered in connection with completion of the HRA (assuming the HRA contains genetics or family-history related questions).

Another method of getting around the prohibition on pre-enrollment HRAs with genetic or family history questions–and one suggested by the regulations–is to create a two-part HRA. The first part would be stripped of any questions related to the person’s genetics or family history, and given out before health plan enrollment and may have a reward attached. There would be no reward conditioned on completion of the second part of the HRA, which may contain questions about family medical history.

In order to truly strip the HRA of questions relating to genetics, vague questions such as “Is there anything else relevant to your health that you would like us to know or discuss with you?” should be followed up with these instructions, provided in the regulations:

In answering this question, you should not include any genetic information. That is, please do not include any family medical history or any information related to genetic testing, genetic services, genetic counseling, or genetic diseases for which you believe you may be at risk.

GINA Follow Up

I had the pleasure of speaking on the Genetic Information Nondiscrimination Act, including the final GINA regulations (issued by EEOC last week), last week in Las Vegas at the Advanced Employment Issues Law Symposium.

One question came up in the seminar that I promised to follow up on in the blog. Although my presentation was focused on employer obligations under Title II, the question related to Title I of the statute, which addresses insurers’ obligations under GINA. In general, Title I of GINA provides that health insurers cannot collect genetic information or discriminate based on it in connection with a group health plan. “Genetic Information” is defined to include family medical history. Therefore, a group health insurer cannot require participants to provide family medical history. Nor can they adjust a premium or contribution amount based on genetic information.

This prohibition requires to a health insurance issuer offering group health insurance coverage in connection with a group health plan. It does NOT apply to life insurance, long-term care insurance, or disability insurance. A specific question was asked at the conference regarding AFLAC, because it was believed that AFLAC collected detailed family medical information. AFLAC would most likely be considered disability insurance, not group health insurance; therefore they would be exempted from GINA’s prohibitions on collecting family medical history.

In addition, other questions raised individually after my presentation pointed to a fundamental misconception about GINA as it applies to health insurers. Once an employee has manifested a disease him or herself, we are not talking about genetic information covered by GINA. Therefore, if an employee has, for instance, angina that runs in the family: that is current medical information, not genetic information. A health insurer can “discriminate” by charging higher premiums, etc., based on this information (subject to existing laws on pre-existing conditions) and that would not be a violation of GINA. GINA deals with the potential to acquire diseases in the future, a potential that may be revealed either through genetic tests or a review of family medical history.

EEOC Issues Final GINA Regulations for Employers

GINA, the Genetic Information and Nondiscrimination Act, took effect nearly a year ago.  After several delays, the EEOC has published final regulations that interpret and implement the nondiscrimination provisions of the Act, which apply to employers.  Those employers who have been paying attention to GINA and its requirements won’t be surprised at the regulations, as they are substantially similar to the proposed regulations.  They do , however, offer specific examples applicable to employers. 

I’ll surely have more detailed commentary after I’ve reviewed the regs in full; but, until then, here are a few of the highlights:

Medical Information

The regs offer employers specific language for use in medical-exam and -inquiry forms:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information,’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

The purpose of this “boilerplate” language?  It’s an insurance policy, of sorts.  So long as the employer uses this language, it will not be held to have violated GINA if the medical provider discloses genetic information in spite of the warning.

Social Media

I’ve posted before on some of the potential GINA-specific risks of social-media “background checks” conducted by employers.  The regs may alleviate some of these concerns.  The final regulations provide that, in general, an employer who obtains protected genetic information inadvertently probably does not violate the statute.  For example, if the information is learned via a Google search performed using the employee or applicant’s name, the receipt of the information is considered inadvertent. 

The regs also provide that genetic information learned from an employee’s Facebook or other social-networking site will be deemed inadvertently obtained, provided you have permission to access the information on that site (i.e., if the employee or applicant has accepted you as a Facebook friend).

The final GINA regulations (29 CFR Part 1635) take effect on January 9, 2011.  We’ll surely have more comments in the meantime but, if you need to get up to speed on this important law affecting employers, see these previous posts:

DOL Publishes FAQs on GINA

The U.S. Department of Labor has published FAQs on the Genetic Information Nondiscrimination Act (“GINA“).  The U.S. DOL GINA FAQs are largely devoted to discussion of Title I of GINA, which applies to insurers, not to Title II, which governs employment decisions.  Nevertheless, the FAQs do contain a basic discussion of what exactly is meant by “genetic information.”

See U.S. DOL GINA FAQs

For more about the topic as it relates specifically to employers, be sure to check out Adria B. Martinelli’s many excellent posts:

Do Bald Employees Finally Have A Cause of Action Under GINA?

It has long been believed that bald men do not fare well in the workplace, suffering from hidden bias that results in their failure to get hired or promoted at the same rates as those with a full head of David Hasselhoff-like hair. My husband contends that this is one of the few categories of employees it is still deemed appropriate to poke fun at. I will not comment on the state of his follicular impairment except to say that he is often compared to Cal Ripken, Jr.

I’ve written previously that the newly enacted Genetic Information Nondiscrimination Act (GINA) may have a whole host of unintended consequences, including potential claims for overweight employees.  GINA may offer a claim for follically-challenged individuals as well.

GINA protects against the discrimination based on genetic information. Genetic information includes the manifestation of a disease or disorder in the family member of an employee. At least some types of hair loss are widely deemed to be a result of a medical disorder, and some sources even appear to classify male-pattern baldness as a “hair disorder.” man with ax

Remember, GINA does not cover manifestation of a disease or disorder in the employee him/herself: that is medical information, not genetic information, and therefore governed by the Americans With Disabilities Act (ADA). Baldness alone would not likely qualify as a disability under the ADA. However, if an employer were to observe the manifestation of hair loss in a family member, an employee or applicant who believed he was being discriminated against based on his baldness could conceivably state a claim under GINA.

GINA also prevents an employee from a hostile work environment based on genetic information. Harassment could include, for example, making offensive or derogatory remarks about an applicant or employee’s genetic information, or about the genetic information of a relative of the applicant or employee. Just like hostile work environment claims based on other protected categories, the incidents would have to be severe or pervasive and simple teasing and offhand comments will not generally state a claim. Certainly, though, there could be circumstances where teasing about baldness, along with other instances, could amount to a hostile work environment.

It may be hard to show that discrimination or harassment was based on baldness was because of genetic information, rather than appearance, which GINA nor any other federal law prevents (unless the appearance was related to age, race, gender, disability or other protected category). But that wouldn’t stop a disgruntled or hurt employee from filing a claim. I highly doubt that MX Energy discriminated against Pamela Fink because of her genetic information – after all, she took the most aggressive step she could to address her genetic condition: she got a double mastectomy upon learning she carried the BRCA gene for breast cancer. Nevertheless, she presents as a highly sympathetic plaintiff and her attorney was able to drum up a whole lot of bad publicity for her former employer by invoking a GINA claim.

So watch out, employers! Creative plaintiffs’ attorneys can and will use GINA to create claims where none may have existed before. Given the right set of facts and a sympathetic plaintiff, a bald discrimination or harassment claim under GINA could actually grow roots!

Does GINA Provide a Cause of Action for Overweight (or Overly Attractive) Employees?

GINA (the Genetic Information Nondiscrimination Act), has been dismissed by many legal practitioners as an unnecessary law with little probable impact on employers.  Au contraire. The ink has barely dried on this new law and, already, GINA is making headlines.  For example, a GINA claim has been filed against a Connecticut employer, GINA may make illegal the common practice of checking Internet sources for information on a current or future employee and, last but not least, as recently posited in this article in Corporate Counsel magazine, GINA could provide a new claim to overweight employees who believe they’ve been discriminated against. microscope

As noted in the Corporate Counsel article, ADA potentially could over a case involving obesity. So could GINA. GINA precludes consideration of family medical history. Specifically, it defines “genetic information” to include “the manifestation of a disease or disorder in family members of such individual.” Disease or disorder is not defined in the statute, but most likely some cases of obesity would be considered a disorder. Further, it has been medically established that in many cases, obesity has a genetic component.

Consider the following hypothetical scenario: Employer observes the manifestation of obesity in a family member of an employee at Company picnic. Employer concludes that employee is overweight as a result of a genetic predisposition. Employer terminates or denies promotion to overweight employee. Voila! Like a Genie in the Bottle, a GINA claim has instantly materialized.

What about the “Too Sexy for Her Job” employee, Debrahlee Lorenzana? Could she claim that her good looks were genetic and therefore state a GINA claim? Not likely, since – even if it runs in the family – good looks would not likely be labeled as a “disorder.” And there’s that pesky little fact that she does not come by it all naturally.