May 15, 2013

EEOC’s first GINA suit settled for $50,000

Posted in Americans with Disabilities Act, Disability, Discrimination, Genetic Information, Genetic Information Non-discriminaton Act (GINA), Regarded as Disabled tagged , , , , , , at 10:14 am by Tom Jacobson

I’m a fan of the The Big Bang Theory — the TV show, that is.

Jim Parsons, as Dr. Sheldon Cooper in "The Big Bang Theory"

Jim Parsons, as Dr. Sheldon Cooper in “The Big Bang Theory”

For the uninitiated, it’s a CBS sitcom revolving around the lives of four Caltech scientists, including the narcissistic theoretical physicist, Dr. Sheldon Cooper, who once proclaimed his genetic superiority by divulging that he has, “a sister with the same basic DNA mix who hostesses at Fuddruckers.”

The Big Bang cast can joke all they want about their family history. However, Tulsa, OK-based Fabricut, Inc. has learned that misusing such information at work can be costly, for it has agreed to pay $50,000.00 to settle the EEOC’s first lawsuit under the Genetic Information Nondisclosure Act (GINA).

According to the EEOC’s suit, Fabricut offered Rhonda Jones a job and then sent her to a contract examiner for a pre-employment drug test and physical. As part of the exam, Jones was subjected to medical testing and required to disclose disorders in her family medical history. The examiner concluded that more testing was needed to determine whether she suffered from carpal tunnel syndrome (CTS). Fabricut then asked Jones to be evaluated for CTS by her personal physician. She complied, and her doctor concluded that she did not have CTS. Nevertheless, the company rescinded its job offer because its contract examiner indicated that she did have CTS.

The EEOC alleged this violated GINA. Enacted in 2009, GINA is a federal law that makes it unlawful for covered employers to discriminate against employees on the basis of their genetic information, including family history. It also restricts employers from requesting, requiring or purchasing such information. The EEOC also alleged that Fabricut violated the Americans with Disabilities Act (ADA).

In the consent decree settling the case, Fabricut agreed to pay $50,000.00, plus

  • Post an anti-discrimination notice to employees
  • Disseminate anti-discrimination policies to employees
  • Provide anti-discrimination training to employees with hiring responsibilities.

What you need to know: The EEOC has now identified genetic discrimination as one of it enforcement priorities. According to EEOC Regional Attorney Barbara Seely, “Although GINA has been law since 2009, many employers still do not understand that requesting family medical history, even through a contract medical examiner, violates this law.” Thus, employers and employees need to understand their rights and responsibilities under GINA.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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May 8, 2013

Here today, gone tomorrow — intermittent leave under the FMLA

Posted in Family and Medical Leave Act, Family and Medical Leave Act (FMLA), Family Leave, Intermittent Leave, Leaves of Absence tagged , , , , , at 9:58 am by Tom Jacobson

FMLALast week I had the privilege of speaking at Lakes Country Service Cooperative to a group of  HR professionals regarding recent developments in employment law. One of the participants asked about an employee’s right to take a day off here and there to help care for a parent. The question struck a personal chord with me because I’ve recently been dealing with an ailing dad and multiple days away from the office to visit him in the hospital and to help my mom. I’m happy to report that he’s now making a good recovery.

For employers covered by the Family and Medical Leave Act, the participant’s question is whether the FMLA allows an eligible employee to take intermittent leave to care for a family member with a serious health condition. By definition, intermittent leave under the FMLA is “leave taken in separate blocks of time due to a single qualifying reason,” and it may be used for this purpose. Specifically, federal regulations provide that:

Intermittent leave may be taken for a serious health condition of a spouse, parent, son, or daughter, for the employee’s own serious health condition, or a serious injury or illness of a covered servicemember which requires treatment by a health care provider periodically, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks. Examples of intermittent leave would include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six months, such as for chemotherapy. A pregnant employee may take leave intermittently for prenatal examinations or for her own condition, such as for periods of severe morning sickness. An example of an employee taking leave on a reduced leave schedule is an employee who is recovering from a serious health condition and is not strong enough to work a full-time schedule.

Of course, this only applies to eligible employees of employers who are covered by the FMLA. Also, the FMLA has detailed definitions of what qualifies as a “serious health condition” or “serious injury or illness” which would trigger the right to intermittent leave, and another FMLA regulation describes how intermittent leave is to be scheduled.

What you need to know: Based on last week’s LCSC discussion, navigating through the intersecting laws that grant employees the right to time away from work continues to be a major challenge for many employers. The FMLA is only one of those laws, and intermittent leave is just one type of leave that covered employers must be prepared to provide to eligible employees.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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