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Alert: New GINA Regulations Take Effect January 10, 2011

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As you probably know, the EEOC issued Final Regulations on November 9, 2010 as to Title II of the Genetic Information Nondiscrimination Act of 2008, Pub. L. 110-233, 122 Stat. 881, codified at 42 U.S.C. § 2000ff et seq. (“GINA”). GINA generally bars employers from requesting, requiring or purchasing an individual’s genetic information, and making employment decisions based on such data. GINA has been in effect since November 21, 2009.

The GINA regulations will take effect January 10, 2011, and will be codified at 29 C.F.R. Part 1635. They should also be available online at the EEOC’s website (eeoc.gov). There are several new provisions that employers need to know. As one example further described herein, there is new notice language that employers will need to use whenever they lawfully request health information from an employee or health care provider. This article provides some general information about the GINA regulations.

Definition of Genetic Information. The regulations define “genetic information” as information about: (i) An individual’s genetic tests; (ii) The genetic tests of that individual’s family members; (iii) The manifestation of disease or disorder in family members of the individual (family medical history); (iv) An individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual; or (v) The genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology. The definition specifically excludes “information about the sex or age of the individual, the sex or age of family members, or information about the race or ethnicity of the individual or family members that is not derived from a genetic test.”

Prohibition on use of genetic information in employment decision-making: The final rule provides that it is unlawful for an employer to discriminate against an individual on the basis of the genetic information of the individual in regard to hiring, discharge, compensation, terms, conditions, or privileges of employment.

Similarly, an employer may not limit, segregate, or classify an individual, or fail or refuse to refer for employment any individual, in any way that would deprive or tend to deprive the individual of employment opportunities or otherwise affect the status of the individual as an employee, because of genetic information with respect to the individual. The final rule specifically cautions, however, that a cause of action for disparate impact within the meaning of section 703(k) of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(k), is not available under this part.

GINA also prohibits harassment against an employee based on genetic information or retaliation.

Exceptions to restrictions requesting, requiring, or purchasing genetic information: The final rule includes 6 limited exceptions to its general prohibition on employers requesting, requiring, or purchasing the genetic information of employees or job applicants. For example, an employer’s inadvertent acquisition of such information falls within the exception. The exception for inadvertent acquisition applies to situations where an employer, acting through a supervisor or other official, receives family medical history by overhearing a conversation, receiving an unsolicited communication, or following a general inquiry about the individual’s health (e.g., “How are you?” or “Did they catch it early?” asked of an employee who was just diagnosed with cancer).

Other exceptions include an employer’s requests for medical data for the purposes of evaluating individual claims for Family and Medical Leave Act (“FMLA”) leave or reasonable accommodation under the Americans with Disabilities Act (“ADA”) and certain situations involving an employer’s wellness program.

As to voluntary wellness programs, the regulations make clear that GINA permits no financial inducements for individuals to supply genetic information (typically family medical history). Financial inducements may be provided, however, for situations not covered by GINA such as disease management programs.

Employers Must Include Specific “Safe Harbor” Language When Lawfully Requesting Health-Related Information from an Employee or Third Party (e.g., Health Care Provider). Although an employer is still permitted to request health-related information from an employee in certain situations such as in response to a request for sick leave or request for an accommodation under the ADA, the final regulations implore employers to warn the employee or health care provider not to provide genetic information. Specifically, the regulations recommend that employers use the following language:

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 an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.

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Alert: TRICARE Subjects Hospitals to Affirmative Action Requirements

According to a recent Department of Labor Office of Administrative Law Judge (“ALJ”) ruling, if a hospital facility accepts patients under TRICARE, the health care program serving Uniformed Service members, retirees and their families, that facility may be subject to federal affirmative action requirements. See (OFCCP v. Fla. Hosp. of Orlando, DOL OALJ, No. 2009-OFC-00002, 10/18/10). Granting summary judgment to the Office of Federal Contract Compliance Programs (“OFCCP”), the ALJ held that a Florida hospital is a federal subcontractor because it participates in a health care provider network established by Humana Military Healthcare Services Inc. (“Humana”), which has a federal […]

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Alert: NLRB Complaint; Overly Broad Social Media and Internet Policies

On November 2, 2010, the National Labor Relations Board (NLRB) issued a press release advising that its Hartford CT Regional Director issued a complaint against American Medical Response (“American”) of Connecticut for firing a union-represented medical technician, Dawnmarie Souza, after she posted remarks criticizing her supervisor on her personal Facebook account. The complaint also alleges that American illegally denied union representation to the employee during an investigatory interview, and maintained and enforced an overly broad blogging and internet posting policy. The NLRB indicates that the issue started when Ms. Souza was asked by her supervisor to prepare a report concerning […]

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Lessons Learned from Large Collective Actions – Dana Pt., CA

ALFA International’s Labor & Employment Practice Group selected Gentry Locke attorney David Paxton to moderate a panel on Lessons Learned from Large Collective Actions. Panel participants include attorneys from Nevada, Tennessee, California, and Washington state. ALFA International’s Labor & Employment Practice Group Seminar is held from November 10-12, 2010 at the Ritz-Carlton, Laguna Niguel in Dana Point, California.

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Gentry Locke Partner Scott Sexton Designated a Statewide “Leader in the Law”

J. Scott Sexton, a partner with the Virginia law firm of Gentry Locke Rakes & Moore, has been recognized as a “Leader in the Law” for 2010 by Virginia Lawyer’s Weekly for his accomplishments in developing the law on Virginia mineral rights. Sexton is one of 31 Virginia attorneys who were honored at an October 21st reception in Richmond. According to Virginia Lawyers Weekly, the “Leaders in the Law” honors lawyers who set the standard for other attorneys

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Using Social Media in Discovery CLE Course

On October 20, 2010, Gentry Locke attorney Jay O’Keeffe presented a CLE course entitled “Using Social Media in Discovery” to attorneys in attendance at a half-day CLE program in Richmond. Gentry Locke attorney Josh Johnson assisted with research and preparation of the seminar materials. The entire course, The Civil Litigator’s Short Course 2010, was recorded was videocast on November 11th at the following locations: Abingdon: Southwest Virginia Higher Education Center, on the campus of Virginia Highlands Community College (I-81 exit 14), 1 Partnership Circle (276) 619-4300 Charlottesville: The Virginia CLE Building, 105 Whitewood Road (800) 979-8253 Richmond: UVA Richmond Regional Center, […]

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2010 Virginia State Bar SoVa Minority Pre-Law Conference

  Virginia State Bar Young Lawyers Conference Southern Virginia Minority Pre-Law Conference Registration is closed. >> Fan/Follow on Facebook Thinking about going to Law School? Do you have questions about the Law School Admissions Process, Financial Aid, and Career Opportunities in the Legal Profession? Come meet the professionals with the answers. This conference is free and open to all students interested in a legal career. Breakfast and lunch are provided. One attendee will WIN an LSAT PREP Course courtesy of KAPLAN — a $1,000 value! Two Hotel Scholarships available courtesy of W&L School of Law — details available on the […]

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2010 Legal Issues & Updates that Really Matter – MCLE

Please register online below (“RSVP online”) Please be our guest for a seminar covering Legal Issues & Updates that Really Matter. We have received approval for a total of 6.0 MCLE credits including one hour of Ethics for this CLE seminar. Washington Lecture Hall – please use the self-park option and bring your parking ticket in for validation. 8:15 am-9:00am: Sign-in and Continental breakfast 9:00am    Employment Law on a Need to Know Basis  (.5) 9:30am    When the Feds Come a-Knockin’  (.5) 10:00am  The Complete Toolbox for Wrongful Death Cases  (.75) Break  11:00am  The Personal Injury Case You Want, and Why  (.75) 11:45am  Picking the Best Business Structure […]

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Employees Make More Suing You Than Working For You

On July 15, 2010, Gentry Locke attorney Diane Geller is scheduled to present “Employees Make More Suing You Than Working For You: 8 Things Plaintiff Lawyers Don’t Want You To Know.” In the presentation, attendees learn eight things that plaintiffs’ (employees’) lawyers hope have occurred to improve their chances of success in litigating against a company. For more information about Florida Staffing Association events, click here.

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$75 Million Settlement Reached in Landmark Environmental Property Case

Gentry Locke Rakes & Moore, LLP, representing three Virginia coal owners, has secured a $75 million settlement from Consol Energy, Inc. of Canonsburg, Penn., and its subsidiaries resulting from the energy consortium’s decision to secretly dump billions of gallons of contaminated water into several mines in western Virginia for over a decade. The award is among the highest environmental property damage settlements ever awarded in the U.S. On June 1, 2010, the parties to the Buchanan County Circuit Court case of Yukon Pocahontas Coal Company, et al. v. Consolidation Coal Company, et al., Island Creek Coal Company, Consol Energy, Inc., […]

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When VOSH Comes Knocking: Strategies for Responding to OSHA Inspections and Citations

On Tuesday, March 30, Virginia attorney Brett Marston spoke to an audience of construction and safety professionals. Attendees received a review of best practices for handling VOSH inspections and citations, and an understanding of the enforcement process. The interactive session offered the “do’s and don’ts” of an OSHA inspection, how to respond to citations in a cost-effective manner, and how to approach important issues such as abatement, repeat violations, and penalty calculations.

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The Real March Madness: Tips to Comply with the New Employment Laws and Regulations

On March 18, 2010, Todd Leeson provided New River Valley SHRM attendees practical advice to help them survive the “madness”: Who is Lilly Ledbetter and why should you care? What does the ADA Amendments Act mean for your company? Will the Employee “Free Choice” Act pass and is there something you should be doing now to remain union-free? How will the EEOC’s increase in funding impact your business? Are Virginia companies able to prevent departing employees from competing? Can you monitor an employee’s social media postings?

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