505 North 20 th Street, Suite 1800 Birmingham , Alabama 35203 Telephone : 205-795-6658 www.csattorneys.com - PowerPoint PPT Presentation

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505 North 20 th Street, Suite 1800 Birmingham , Alabama 35203 Telephone : 205-795-6658 www.csattorneys.com

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  1. EMPLOYMENT ISSUES FOR PUBLIC EMPLOYERS THE NEW, THE REVISED AND THE OLD 505 North 20thStreet, Suite 1800 Birmingham, Alabama 35203 Telephone: 205-795-6658 www.csattorneys.com

  2. EMPLOYMENT ISSUES FORPUBLIC EMPLOYERS • TOPICS • Genetic Information Non-discrimination Act • Americans with Disabilities Act Amendment Act • Fair Labor Standards Act • Drug-Free Workplace Act • Searches and Seizures in the Employment Context

  3. EMPLOYMENT ISSUES FORPUBLIC EMPLOYERS “THE GENETIC INFORMATION NON-DISCRIMINATION ACT OF 2008” (“GINA”)

  4. GENETIC INFORMATION NON-DISCRIMINATION ACT • Enacted in 2008. Why is this a recent development? • EEOC charged with promulgating implementing regulations • Regulations just published on November 9, 2010

  5. GENETIC INFORMATION NON-DISCRIMINATION ACT • Why should a City care about GINA?

  6. GENETIC INFORMATION NON-DISCRIMINATION ACT • COVERAGE • Cities do not enjoy sovereign immunity and, therefore, can be covered by GINA.

  7. GENETIC INFORMATION NON-DISCRIMINATION ACT • COVERAGE • GINA’s coverage is the same as Title VII: • 15 or more employees(Payroll method: part-time / temporary count) • For each working day • In each of 20 or more calendar weeks • In the current or preceding calendar year

  8. GENETIC INFORMATION NON-DISCRIMINATION ACT • DAMAGES • Back pay • Reinstatement / instatement or front pay • Compensatory damages • Punitive damages • Attorney’s fees • Your own defense costs • Pay attorney’s fee to attorney of applicant / employee

  9. GENETIC INFORMATION NON-DISCRIMINATION ACT • Why would an employer want genetic information? • Group / Workers’ Compensation Insurance underwriting / premium concerns • ADA accommodation cost concerns • Concerns about future FMLA leaves • Concerns about future attendance / work performance

  10. GENETIC INFORMATION NON-DISCRIMINATION ACT WHAT DOES GINA PROHIBIT?

  11. GENETIC INFORMATION NON-DISCRIMINATION ACT • MAKING EMPLOYMENT DECISIONS BASED ON GENETIC INFORMATION • REQUESTING INFORMATION ABOUT FAMILY MEDICAL HISTORY • REQUESTING, REQUIRING DISCLOSURE OF, OR PURCHASING GENETIC INFORMATION • RETALIATION AGAINST THE ASSERTION OF GINA PROTECTED RIGHTS

  12. GENETIC INFORMATION NON-DISCRIMINATION ACT “GENETIC INFORMATION” IS

  13. GENETIC INFORMATION NON-DISCRIMINATION ACT • GENETIC INFORMATION • Family Medical History • NEVER inquire about family medical history • NEVER ask an employee about his or her own possible pre-disposition to a disorder that is possibly genetically-linked • Cancers • Cystic fibrosis • Muscular dystrophy • Mental disorders • Epilepsy

  14. GENETIC INFORMATION NON-DISCRIMINATION ACT • GENETIC INFORMATION • Genetic treatment provided to an employee, or his or her family members • Prescription medications that would reveal genetically-linked disorders

  15. GENETIC INFORMATION NON-DISCRIMINATION ACT • GENETIC INFORMATION • Genetic tests related to genetics of an employee, or his or her family members • Participation of an employee or a family member in clinical studies related to genetics

  16. GENETIC INFORMATION NON-DISCRIMINATION ACT “GENETIC INFORMATION” IS NOT

  17. GENETIC INFORMATION NON-DISCRIMINATION ACT • HIV tests • Cholesterol tests • Drug or alcohol tests • Routine medical examinations

  18. GENETIC INFORMATION NON-DISCRIMINATION ACT • GENETIC INFORMATION • GINA does not prohibit certain requests for medical information: • Pre-employment medical / physical examinations; • FMLA medical certifications; and • Fitness for duty examinations, PROVIDED THAT

  19. GENETIC INFORMATION NON-DISCRIMINATION ACT • The employer affirmatively tells the employee NOT to provide genetic information • AND • The employer affirmatively tells the medical examiner NOT to request genetic information

  20. GENETIC INFORMATION NON-DISCRIMINATION ACT • How do you affirmatively tell employees and medical examiners not to request genetic information? • THE EEOC HAS PROVIDED A SAMPLE NOTICE.

  21. GENETIC INFORMATION NON-DISCRIMINATION ACT • I understand that [EMPLOYER] desires to fully comply with The Genetic Information Nondiscrimination Act of 2008 (GINA) that prohibits [EMPLOYER] and its agents from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, [EMPLOYER] has asked that I not provide any genetic information when responding to the attached Medical Questionnaire or any questions presented by the examining physician or his or her staff. “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.

  22. GENETIC INFORMATION NON-DISCRIMINATION ACT • Place this notice on any form requesting medical, information before conducting an examination. • A sample notice form is included in the flash drive provided to you.

  23. GENETIC INFORMATION NON-DISCRIMINATION ACT • GINA SAFE HARBOR • Inadvertent inquiries • Office gossip / break room / “water cooler” discussions among employees • GINA requires supervisors to walk away and not make further inquiries about family history or medical pre-dispositions

  24. GENETIC INFORMATION NON-DISCRIMINATION ACT • CONFIDENTIALITY • As with all medical information obtained, employers must keep genetic information confidential • Apart from personnel files • Secure storage • Access limited to those with a need to know

  25. EMPLOYMENT ISSUES FORPUBLIC EMPLOYERS THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT OF 2008 (“ADAAA”)

  26. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT According to Congress, the ADAAA “reinstate[s] a broad scope of protection” by expanding the definition of the term “disability.” See H.R. 3195 § 2(b)(1)–(3).

  27. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT THE ADAAA accomplishes this goal DRASTICALLY.

  28. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT “DISABILITY”

  29. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT • DISABILITY • The ADAAA protects individuals “with a PHYSICAL OR MENTAL IMPAIRMENT that substantially limits one or more major life activities of such individual….”

  30. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT • DISABILITY “PHYSICAL OR MENTAL IMPAIRMENT”

  31. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT • DISABILITY: Physical or Mental Impairment The EEOC has given us regulatory examples of impairments that “WILL” CONSISTENTLY meet the definition of “disability”

  32. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT Impairments: Impairments: Diabetes Cancer HIV / AIDS Multiple sclerosis Muscular dystrophy Hepatitis Severe mental conditions: MAJOR depression / Class 3 + bipolar disorder / PTSD / OCD / schizophrenia • Deafness • Blindness • Intellectual disability • Partially / completely missing limbs • Physical impairments requiring ambulatory aids • Autism • Epilepsy • Cerebral palsy

  33. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT • DISABILITY: Physical or Mental Impairment The EEOC also has given us a non-exhaustive list of regulatory examples of impairments that “MAY” CONSISTENTLY meet the definition of “disability”

  34. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT Impairments: Impairments: “Less severe” mental disorders: Panic / anxiety disorder Clinical depression Class 2 Bi-polar disorder High functioning individuals with a learning disability Dyslexia ADHD Alspergers syndrome • Asthma • Allergies to chemicals • Hypertension • Carpal tunnel syndrome • Hyperthyroidism • Narcolepsy • Physical activity restrictions lasting several months or more(read “workers’ compensation injuries”)

  35. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT • DISABILITY: Physical or Mental Impairment • NEW in the ADAAA: • Mitigating measuresCANNOT be considered in determining if an individual suffers an impairment.

  36. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT • DISABILITY: Physical or Mental Impairment • NEW in the ADAAA: • An employee may be “disabled” even though mitigating measures relieveALLlimiting effects of an impairment.

  37. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT • DISABILITY: Physical or Mental Impairment • NEW in the ADAAA: • The negative impact of a mitigating measure may be a “disability,” e.g.: • the side effect(s) of a medication if it substantially limits a major life activity • the tiring effect(s) of using ambulatory devices or prosthetics

  38. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT • DISABILITY: Physical or Mental Impairment • NEW to the ADAAA: • A chronic impairment that isepisodic or in remissionis a “disability” if it would limit a major life activityIF the impairment were active.

  39. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT • DISABILITY: Physical or Mental Impairment THE GOOD NEWS

  40. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT • DISABILITY: Physical or Mental Impairment The EEOC has identified disorders and conditions that ARE NOT “physical or mental impairments.”

  41. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT Not Impairments: Not Impairments: Homosexuality Bisexuality Compulsive gambling Kleptomania Pyromania Psychoactive substance use disorders resulting from current use of illegal drugs • Transvestism • Transsexualism • Pedophilia • Exhibitionism • Voyeurism • Gender identity disorders • not resulting from physical impairments

  42. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT • DISABILITY: Physical or Mental Impairment: ALSO, other “impairment” exclusions are unchanged:

  43. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT • DISABILITY: Physical or Mental Impairment • An employee with a vision impairment that can be corrected with “ordinary” eyeglasses or contact lenses is not disabled.

  44. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT • DISABILITY: Physical or Mental Impairment • A pregnancywithout medical complications is not a “disability.”

  45. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT • DISABILITY: Physical or Mental Impairment • Current users of illegal drugs (including improper use of prescription medication) or abusers of alcohol remain excluded from coverage. Rule of thumb: Current = less than 6 months without use

  46. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT • DISABILITY: Physical or Mental Impairment • Not So Clear Exclusions: • “Temporary, non-chronic impairments of short duration with little or no residual effects.” • “Transitory (lasting or expected to last for six months or less) and minor.” • Common cold or influenza, seasonal allergies, sprains/strains, broken bones without residual effects

  47. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT • DISABILITY • The ADAAA protects individuals “with a physical or mental impairment that substantially limits one or more MAJOR LIFE ACTIVITIES of such individual….”

  48. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT “DISABILITY” “Major Life Activities”

  49. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT • DISABILITY: Major Life Activities • The EEOC has two NON-EXHAUSTIVElists of “Major Life Activities.”

  50. THE AMERICANS WITH DISABILITIES ACT AMENDMENT ACT • DISABILITY: Major Life Activities • The Traditional “Major Life Activities:”