Hunton Employment & Labor Law Perspectives : Employment Lawyers & Attorneys : Hunton & Williams Law Firm : Labor Law Legislative Updates

In its letter, the EEOC makes a distinction between “personal” and “occupational” health information. According to the EEOC, personal health information is “information obtained in the course of diagnosis or treatment,” while occupational health information “concern[s] an employee’s ability to work.” While both the ADA and GINA sharply limit employers’ right to access personal health information, employers who lawfully utilize post-offer questionnaires or medical examinations will likely obtain personal health information in the normal course of business.  Similarly, health care facilities or other employers who provide on-site medical services might have access to both personal and occupational health information.

As the EEOC points out, the ADA and GINA authorize employers to use or disclose an employee’s confidential medical or genetic information only in limited circumstances. Those limited exceptions do not include the provision of occupational health information to healthcare workers providing non-job related medical services. Similarly, while supervisors and managers are permitted to access information regarding an employee’s work restrictions or necessary accommodations, they do not have the right to access other medical information.

Given the dichotomy between personal and occupational health information and the attendant restrictions on who can access what information, the EEOC suggests that maintaining both types of information in a single medical record “presents a real possibility” that employers are violating the ADA or GINA. According to the EEOC, employers who maintain medical records in an electronic format that allows individuals with access to the records to view all the information contained in the record are even more likely to be in violation of the ADA, GINA, or both.

The EEOC’s letter raises two issues for employers in possession of both occupational and personal health information. First, the EEOC’s letter suggests that employers need to distinguish between occupational or personal health information. Making this distinction is not always easy.  Second, once the employer determines what information is occupational and what information is personal, the employer has to determine whether it has appropriate safeguards in place to prevent unauthorized access to or disclosure of either category of information. For paper files, this might mean maintaining separate folders in separate locations. For electronic medical records, an employer may need to erect an electronic “wall” so that the users of the system only have access to the relevant and appropriate information.

The EEOC’s letter increases the costs and complexity of maintaining confidential employee medical records. Instead of a simple partition between medical and non-medical records, employers may now have to consider establishing additional privacy protections for different types of medical information.

The most prominent of these emerging types of claims is retaliation.  Retaliation claims have been filed with the EEOC at a steadily increasing rate in recent years. In 2010, for the first time in history, retaliation claims became the most frequently filed type of claim, even outnumbering claims of race and sex discrimination.  Retaliation claims can be problematic for employers. An EEOC spokeswoman was quoted by the Wall Street Journal as saying, retaliation “is easier [for an employee] to prove.” Adding to employers’ concerns, the Supreme Court recently expanded the rights of third parties to file retaliation claims. See Thompson v. North American Stainless, LP, 562 US __, 131 S. Ct. 863 (U.S. 2011). As retaliation claims continue to gain notoriety, and as employees become more aware of their rights to file this type of claim, the number of retaliation claims filed with the EEOC will assuredly continue to grow in the foreseeable future.

Another emerging type of claim about which employers should be concerned is disability discrimination. In 2010, the number of disability discrimination claims filed with the EEOC increased by nearly 20%. Due in large part to the enactment of the ADA Amendments Act of 2008 (ADAAA), this surge will continue as the EEOC publishes its final regulations concerning the ADAAA. These final regulations are expected to establish a broad definition of “disability,” thereby expanding the pool of qualified individuals who can file claims of disability discrimination. In fact, the final regulations reportedly will include a list of per se disabilities that cannot be challenged by employers. Official publication of the EEOC’s final ADAAA regulations is expected by April 2011. If these regulations prove to be as pro-employee as is anticipated, employers undoubtedly will face an increased number of disability discrimination claims.

Employers also should take note that the number of claims under the Genetic Information Nondiscrimination Act (GINA) may rise significantly in 2011. GINA is relatively new law and provides a new type of claim to individuals who believe they have been discriminated against because of their genetic information. In fact, the EEOC handled its first GINA claims in 2010. Although the number of GINA claims filed last year was relatively small (just 201 in total), employers should not overlook the expected emergence of this claim type. Since the end of the 2010 fiscal year, the EEOC has issued its final GINA regulations, which took effect on January 10, 2011. See EEOC Issues Final Regulations On The Genetic Information Nondiscrimination Act. Without question, employees will become more informed about their rights under GINA and more ambitious to test their rights under this new law.

It is critical that employers take appropriate steps to protect themselves against these emerging claims. Employers should update policies to correspond with the recent changes in law. Taking proactive steps now can contribute significantly in avoiding potential claims and in defending against claims filed with the EEOC and related local agencies.

Right to Know Under the FLSA (RIN: 1235-AA04):  According to the DOL, this regulation was designed to “update the recordkeeping regulations under the Fair Labor Standards Act in order to enhance the transparency and disclosure to workers.” This proposed regulation would require any business that claims employees are exempt from FLSA coverage to perform a classification analysis and provide the analysis to the covered employees.  Employers would also be required to maintain records of the analysis for potential review by the DOL. The “Right To Know” amendment is set for proposed rulemaking in April 2011. The potential economic impact on private sector employers is serious in that the required analysis, whether performed in house or by an outside source, will be extremely expensive. Moreover, increased litigation under the FLSA is likely should the rule be implemented.

Injury and Illness Prevention Programs: As part of the DOL’s “Plan/Prevent/Protect” enforcement strategy, OSHA is seeking to establish a rule on Injury and Illness Prevention Programs, or the “I2P2” rule. The aim of the proposed rule will be to address all workplace hazards, an extreme broadening of OSHA’s typical standards which focus on specific hazards in the workplace. Some states such as California have already implemented this type of heightened standard. Employers should be concerned about the enforcement of the I2P2 standard, which may result in employer liability for failing to predict even the most rare or unlikely workplace accident.

Employer and Labor Relations Consultant Reporting under the LMRDA (RIN: 1245-AA03): This June, the DOL will seek to revise the section of the LMRDA that provides for an “advice exemption” to the reporting requirements for individuals and employers who attempt to influence workers’ decisions regarding union organizing or collective bargaining. The DOL’s position is that the current interpretation of the exemption is too broad. The concern for labor attorneys in particular is that the new rule will limit the exemption in such a way that several previously-exempt entities, including attorneys, may be required to report any labor advice provided or services performed in relation to so-called “Persuader Agreements.”         

Employment Nondiscrimination Act: Now that the Obama Administration has secured the repeal of “Don’t Ask, Don’t Tell,” proponents of ENDA are likely to ramp up efforts to get a bill through Congress and on to President Obama. One version of the law prohibits discrimination against individuals based on sexual orientation or gender identity, while a more conservative version protects only against discrimination based on sexual orientation. President Obama has expressed his support for the broader version of the law. While the new Congress has not indicated whether it intends to take up the issue, the recent DADT repeal has placed this issue squarely at the forefront of voters’ minds and House and Senate members are likely to reopen the ENDA discussion at some point during the current term.

This comes as the EEOC has hired more employees to handle the growth in volume and clear the backlog of unprocessed charges and actions. Despite the sharp increase in new charges filed during FY 2010, the EEOC was apparently able to slow the growth of charge inventory and ended the year with 86,338 pending charges -- an increase of only 570 charges, or less than one percent.  This is significant because during FY 2008 and 2009, the EEOC’s pending inventory increased 15.9 percent.

The EEOC found no reasonable cause in 64.3% percent of the FY 2010 charges, and found reasonable cause in only 4.7% of charges. Of the 99,922 new charges, 35.9% were based on race, 29.1% based on sex, 11.3% based on national origin, 3.8% based on religion, 23.3% were based on age, 25.2% were based on disability, 1.% were based on the Equal Pay Act, 0.2% were based on the Genetic Information Nondiscrimination Act, and 36.3% were retaliation charges (in FY 2009, retaliation claims surpassed race as the most frequently filed charge).

The EEOC’s mediation program also set a record during FY 2010. Of the 99,922 new charges received, 9,370 or 9.3% were settled at the administrative stage, which was ten percent more than FY 2009 and resulted in $319.4 million in monetary benefits for claimants, not including monetary benefits obtained through litigation.

The EEOC also filed 250 lawsuits during FY 2010, resolved 285 lawsuits, and resolved a total of 104,999 private sector charges resulting in a total of $404 million in monetary benefits from employers, which the EEOC reported is “the highest level of monetary relief ever obtained by the Commission through the administrative process.”

The record level of charges and recoveries -- more than at any time in the EEOC’s 45 year history -- comes during the worst job market since the Great Depression, suggesting that the increase stems, in large measure, from an increase in adverse actions caused by the bad economy, and displaced employees who refuse to go without a fight.

The EEOC recently published its annual Performance and Accountability Report for its 2010 Fiscal Year.  In its Report, the EEOC attributed “[t]his surge” in the number of charges filed “to the expanded statutory authorities that EEOC has been given with the ADA Amendments Act of 2008; the Genetic Information Nondiscrimination Act of 2008; and the Lilly Ledbetter Fair Pay Act of 2009,” as well as the “EEOC becoming more accessible, making charge filing easier and providing better, more responsive customer service.”

The number of discrimination charges filed with the EEOC likely will continue to increase into 2011.  As employers continue to feel pressure from the current economic climate to downsize and streamline their operations, it is more important than ever to follow and enforce lawful disciplinary and discharge policies, as well as ensure any leave and/or accommodation policies are compliant with the most recent amendments to the ADA, Genetic Information Nondiscrimination Act and the Lilly Ledbetter Fair Pay Act. 

For a complete breakdown of EEOC charge information by year, including the number of charges filed and the protected characteristic involved, please visit the EEOC’s website.

Voluntary Wellness Programs

The law does not prohibit wellness programs, but it places limits on them.  The law permits employers to acquire genetic information as part of a wellness program, so long as it is completely voluntary and employees cannot be penalized for failing to provide such information.  Employers are also prohibited from offering money for employees’ genetic information, but money can be offered for the completion of health risk assessments, which include questions involving genetic information.  This is permitted provided it is clear that the money will be paid regardless of whether the employees answer the genetic information questions.  For example, an employer could offer a $150 incentive to employees who complete a 100-question health risk assessment that includes 20 questions at the end about family medical history and other genetic information, so long as the employer specifies that the money will be paid to all employees who respond to the first 80 questions, regardless of whether or not they complete the remaining 20 questions on family medical history and genetic information. 

Inadvertently Acquired Genetic Information

GINA has an exception for the inadvertent receipt of “family medical history.”  The EEOC, in its commentary on the final rules, extends this exception to any genetic information an employer inadvertently receives.  Otherwise an employer could arguably be held liable for the acquisition of genetic information if, for example, it overhears a conversation where one employee tells another that her mother had a genetic test to determine whether she was at increased risk of getting breast cancer (which would constitute genetic information, but not family medical history, under the regulations).  The regulations outline a number of scenarios where this exception would be applicable, including, for example, where a supervisor learns genetic information by overhearing a conversation at the water cooler; where a supervisor receives genetic information in response to an ordinary expression of concern (e.g., “How are you?” or “Did they catch it early?” asked of an employee who was just diagnosed with cancer, provided the supervisor does not follow up with probing questions likely to result in the acquisition of genetic information); or where the supervisor inadvertently learns genetic information by accessing an employee’s page on a social networking site which the supervisor had been granted permission by the employee to access.  The EEOC also provides “safe harbor” language for use when requesting health information as part of the FMLA and/or ADA reasonable accommodation process.  If the language is used, any receipt of genetic information will be considered “inadvertent.” 

Confidential Treatment Of Genetic Information

The EEOC makes clear that, once genetic information about employees is acquired, employers that possess the information must maintain it in files that are separate from employee personnel files and treat it as confidential medical records.  Genetic information can only be disclosed in limited circumstances, such as upon receipt of an employee’s written request or in response to a court order.  Although the regulations provide that genetic information placed in personnel files prior to November 21, 2009 need not be removed, the regulations prohibit disclosure in the same manner. 

Clarification Of Definitions Used In GINA

The definitions in GINA left many open questions.  It was unclear whether former employees would be covered and/or whether persons who become dependents by adoption or placement would be covered, for example.  The EEOC has answered both questions in the affirmative.  The EEOC has made clear that former employees are covered by the law.  This will require employers to carefully protect genetic information about current and former employees.  The EEOC has also made clear that persons who become dependents by adoption or placement for adoption are considered “family members” whose genetic information falls under GINA.  While adoptees may not be genetically related to the covered employee, the EEOC reasons that “the acquisition of information about the occurrence of a disease or disorder in an applicant’s or employee’s adopted child could certainly result in the type of discrimination GINA was intended to prohibit.”

The regulations also attempt to explain more fully the term “genetic test,” providing several examples of tests that constitute genetic tests under the statute (for example, amniocentesis and other tests used to determine the presence of genetic abnormalities in a fetus during pregnancy, testing that reveals family relationships, such as paternity tests, and testing to determine whether an individual has the BRCA1 or BRCA2 variant indicating a predisposition to breast cancer), as well as several examples of tests that do not constitute genetic tests under the statute (for example, cholesterol tests, tests for the presence of drugs or alcohol, and HIV tests). 

Next Steps For Employers

Employers are advised to immediately take the following steps to ensure compliance with GINA and its implementing regulations: 

• revise EEO policies to prohibit discrimination based on genetic information;
• train supervisors, human resources, and other hiring personnel regarding GINA compliance;
• conduct an audit of any voluntary wellness programs to ensure that their policies with respect to genetic information comply with GINA;
• revise any form requests for medical information to include the “safe harbor” language provided in the regulations; and
• remove any genetic information from personnel files and place it in confidential medical files.

The Americans with Disabilities Act Amendments Act (“ADAAA”) and the Genetics Information Nondiscrimination Act (“GINA”) have created areas ripe for litigation. Among the lawsuits announced by the EEOC during October, however, none includes a claim brought under GINA and only one suit includes a claim under the ADAAA.

Since October 1, the EEOC has announced in press releases that it has filed 19 lawsuits against private employers.  Disability discrimination and retaliation tie for the most causes of action -- each are included in seven of the 19 complaints.  Nearly all of the disability discrimination claims include a claim that the employer failed to provide the allegedly disabled employee with a reasonable accommodation.  Only one of the disability claims is brought under the ADAAA. The ADAAA requires that the definition of “disability” be interpreted broadly, and overrules the interpretive framework that Supreme Court case law had established.

The prevalence of disability discrimination and retaliation claims is not a surprise.  In the press release announcing the filing of one of the EEOC’s lawsuits earlier this month, the EEOC’s San Francisco District Director Michael Baldonado noted that, in fiscal year 2009, retaliation had overtaken race discrimination as the most often alleged cause of action.  The EEOC’s reported litigation statistics show that disability discrimination charges reached record levels in fiscal year 2009, and had increased nearly 10% over the previous year.

Sex discrimination, including sexually hostile work environment claims, was a close second behind the causes of action tied for first.  Race and religious discrimination claims were the next most prevalent causes of action, as each appeared in three of the complaints.  One race and one sex discrimination claim also alleged that the employer had paid lower wages to the charging party as compared to similarly situated employees outside of the charging party’s protected category.

Only two of the 18 defending employers (two suits have been filed against one employer) are Fortune 500 companies.  Available information suggests that about the same number of defending employers in the remaining 16 lawsuits employ less than 100 employees as employ between 100 and 10,000 employees.

The lawsuits filed this month by the EEOC suggest that (1) no particular type of employer is being targeted, and (2) employers should pay close attention to their obligations under the Americans with Disabilities Act.  If a disabled employee requests an accommodation for a disability, the employer has an obligation to discuss potential accommodations with that employee.  These suits also remind employers to ensure that employee complaints of harassment or other unlawful discrimination are responded to promptly and appropriately.  If an employee has complained about discrimination or harassment, make doubly sure that any subsequent adverse action taken against that employee is firmly based on reasons that are legitimate, non-discriminatory, and have no connection to the employee’s prior complaint.

Facebook also played a prominent role in another recent legal case, Leduc v. Roman, 2009 CanLII 6838 (ON S.C.).  A plaintiff injured in a car accident alleged that he was suffering severe loss of enjoyment of life.  The defendant argued that photos and text on the plaintiff’s Facebook page might tell a different story.  An appellate court ruled that the material should have been produced in discovery, even if privacy issues might be implicated.

Individuals who post information on Facebook and other social media are not the only ones who face risks.  Currently the Equal Employment Opportunity Commission (EEOC) is considering the role that social media might play in actions under the Genetic Information Nondiscrimination Act (GINA), which became effective in November 2009.  GINA prohibits employers from making decisions based on genetic information, which includes information showing genetic predisposition to medical problems such as family medical history.  Because individuals might post such information on social media sites, employers easily could obtain such information.

Many employers search for information about job applicants and employees on social media sites.  Currently there are no prohibitions against doing so.  The prevailing rationale is that information made available to the public is equally available to employers.  Although GINA does not prohibit employers from obtaining genetic information through lawful internet searches, it does prohibit employers from making adverse employment decisions based on such information.  Once an employer obtains such information, from whatever source, the employee or the EEOC could argue that an adverse decision was motivated by such information. 

While individuals should exercise caution in the type of information they post about themselves on social media sites, employers also should beware of trying to obtain too much information about their employees and applicants.  A possible rationale for a legal challenge would be that employers would not seek such information if they did not intend to use it.  Thus, social media will continue to pose risks for employees and employers alike.