Monday, September 26, 2011

Another Link

Northwest Employment Law just joined a new website that allows users to search a subtantial network of service providers. Check us out at Employment Law Advice, Defense, and Mediation
and take a look at the other useful links Thumbtack provides!

Monday, September 12, 2011

Newsletter - GINA, the ADA, and More

Business and Employment Law Update
Third Quarter, 2011

Tips and suggestions, case reports, and
other helpful information for northwest businesses.

Lawyerly Caveat:

This newsletter is for informational purposes,

and is not and should not be construed as legal advice.

For assistance with specific legal issues, consult an attorney.

Tip of the Day - Oregon
Oregon employers not covered by COBRA (20 or more employees) are required to offer extended health insurance coverage to eligible employees, at the employee’s expense, under ORS 743.610.

Tip of the Day: Washington
Violations of Washington’s Safety and Health Act carry potential penalties of more than $26,000. Washington’s Department of Labor & Industries offers no-risk consultations (no penalties will be assessed, although the business will be required to correct any problems identified).

Bench Notes
It’s good to keep tabs on cases in our circuit—it helps to know what not to do, and how judges and juries are interpreting the laws. Here, in no particular order, is the latest news from the courts.

Workers Compensation: Cave Canem
In Sandberg v. J.C. Penney, the court rejected the WCB’s denial of benefits for an injury incurred when the claimant, walking from her home to her garage (where her sales samples were kept), tripped on her dog. The court said: “If an employer, for its own advantage, demands that a worker furnish the work premises, the risks of those premises encountered in connection with the performance of work are risks of the work environment, even if they are outside of the employer's control, and injuries resulting from those risks arise out of the employment.”

Overworked = Good Cause to Quit
In Warkentin v. Employment Department, the Oregon Court of Appeals found an employee was entitled to unemployment benefits, even though she stated she quit because she was overworked. Normally, “too much work” would disqualify a claimant from benefits. This case was unique, however. The claimant was experiencing severe depression, and her requests for assistance, time off, and/or a reduced workload were repeatedly rejected. The last straw occurred when she walked in to find two “two foot high” stacks of papers and 105 messages. In spite of her employer’s admonition that she just needed to work more efficiently, the court found it telling that four people were hired to do her work, after she quit.


At one point in the most recent remake of the movie Titanic, a business tycoon says with a sniff of disdain, “Freud? Who is he? A passenger? Never heard of him.” In the same vein, we might be tempted to say: “GINA? Who is she? Never heard of her.” The fate of the Titanic should deter such dismissive thoughts! The Genetic Information Nondiscrimination Act went into effect in 2008, and the EEOC interpretive rules went into effect last year.

The law boils down to this: A covered entity shall not request, require, or purchase genetic information about an applicant or employee; shall not discriminate against an applicant or employee based on genetic information; and shall keep all properly acquired genetic information confidential.

Sounds simple, but where the rubber meets the road is in the definition of “genetic information.” It’s easy to inadvertently run afoul of GINA, because nearly every major medical condition has a genetic component. Consider the following seemingly innocuous situations:

• Anne tells you she’s been diagnosed with breast cancer. You say, “Oh, Anne, I’m so sorry! Is there a history of that in your family? Because my grandmother had it, and I’m wondering if I should start getting more frequent mammograms…”

You’ve just asked about her genetic history.

• Mark’s son is autistic, and he’s shared with co-workers the educational and therapeutic systems he and his wife have used. You say, “How is your daughter doing? Has she shown any signs of autism?”

You’ve just asked about the family’s genetic history.

There are exceptions for inadvertently obtaining information—but no-one wants to be on the other side of a government inquiry about whether the “acquisition” of information was intentional or inadvertent!

Best practices guidelines:

• When you properly receive genetic information (see exceptions, below), make sure to keep it in the separate file where all medical information is kept (an ADA requirement)

• Never allow your (properly acquired) knowledge of any genetic history to affect your employment decisions. This is more easily said than done. Consider another hypothetical:

Your company employs both Rob and his father. Rob’s father suffered a massive heart attack recently. You happen to know—because Rob volunteered the information—that Rob’s doctor told Rob he’s also at risk for heart disease. Rob applies for a promotion that involves significant physical exertion and stress. An entirely human response would be to reject Rob’s application—you don’t want to put him at risk for a heart attack. Rejecting Rob’s application would violate GINA (and the ADA, unless Rob has asked for accommodation and your rejection of his application occurs after the interactive process).

Best practice: offer Rob the position (if he qualifies), require a pre-employment physical (if you require such a physical of all employees in that position)—making sure to notify the examining doctor that you do not want genetic information—and then promote Rob if the exam shows he’s physically capable.

• Any time you are requesting medical information (pre-employment physical, medical leave request, disability accommodation, short term disability insurance, fitness for duty exam, etc.), NOTIFY the medical provider that you are specifically NOT seeking genetic information except as specifically allowed by law. The EEOC provided the following model 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. ‘Genetic information’ as defined by GINA includes an individual’s family medical history, the results of an individual’s or family members 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.”

GINA includes limited exceptions for which an employer or other covered entity may request and obtain genetic information:

1. Pursuant to a request for family or medical leave (under the FMLA or state law), or a request for disability accommodation, so long as the employer’s request for information is strictly limited to information needed to evaluate the employee’s request;

For example, in our hypothetical situation regarding “Rob,” you could legitimately request and obtain information about Rob’s heart disease if he asked for accommodation or medical leave—but you could not ask for other genetic information (predisposition to diabetes, for instance)

2. Related to a workers compensation claim, if the insurer needs information to show a claimed illness or injury is not compensably work-related but rather occurred due to genetic pre-disposition/history; or

3. Related to an employer-sponsored wellness program (very strict limitations apply—consult a lawyer if you plan to utilize this exception).

A couple of miscellaneous notes about GINA:

• GINA also includes restrictions on insurers—if you are self-insured, consult an attorney
• GINA governs employers with 15 or more employees. Oregon and Washington law contain similar restrictions on smaller employers.

According to Jeanne Goldberg, Senior Attorney Advisor for the EEOC, GINA was not enacted in response to rampant abuse by employers, but rather in anticipation of problems. The goal, according to Ms. Goldberg, is to remind employers that one’s genetic history and predispositions –the likelihood of getting a disease—is not relevant to hiring, promotion, or any other employment decision.

HOT OFF THE PRESSES: Two years after the enactment of the Americans With Disabilities Act Amendments Act (“ADAAA”), the EEOC has issued regulations interpreting the ADAAA. (Continued from Second Quarter Newsletter)

The Basics: The ADA defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities,” and provides protection to a person who has such an impairment, has a record of such an impairment, or is regarded as having such an impairment. The ADAAA instructed the EEOC to redefine “substantially limits” to include greater coverage under the Act.

What’s New: PART TWO

Historically, the first step in evaluating a request for accommodation (or responding to a claim of disability discrimination) was to ascertain whether the individual met the criteria defining “disability.” Under the ADAAA, that evaluation will be brief and is practically meaningless. The nine criteria established for the evaluation are as follows:

1. Construe the ADA broadly, in favor of coverage

2. Impairment need not “prevent or severely restrict” a major life activity

3. “ An extensive analysis” is not required; the primary focus should be on the person’s qualifications, and whether accommodation is needed

4. Individualized assessment, using lower threshold for “substantially limited” than pre-ADAAA

5. Compare individual’s ability to perform a major life activity to others’ ability—medical or scientific information will “usually” not be required

6. Mitigating measures (such as medication that alleviate the effects of the condition) may not be considered—except eyeglasses

That means if an employee shows no signs of “substantial limitation” because of her medication, but would be substantially limited without medication, the condition qualifies as a disability

7. A condition that is episodic or in remission may be a disability if substantially limiting when active

8. Only one major life activity must be substantially limited

9. There is no minimum duration—an impairment lasting less than six months may qualify as a “disability.”

In summary, the criteria do little to help employers evaluate a specific condition, but rather serve as a nine-point reminder that most medical conditions will likely qualify for ADA protection, and the employer’s focus must be on whether accommodation is needed and feasible.



The Oregonian recently ran an editorial scolding the city of Portland for failing to protect its public employee whistleblowers, complaining that the city failed even to maintain the confidentiality of the complaining employees’ identities, as promised.

Had the editorialist asked me (they never do), I would have said such promises are necessarily empty. It is usually impossible to investigate a complaint without identifying the complainant (or giving the interviewee enough information to identify the complainant). However, the issue of confidentiality—and the related issue of employee privacy—is worth further discussion.

Even companies that are fully engaged in protecting their own confidentiality (trade secrets, proprietary information, etc.) sometimes neglect to consider potential exposure from failing to notify employees of the limits on their right to privacy and confidentiality in the workplace, and failing to safeguard that confidentiality, where appropriate. The following questions may help you assess how well your organization addresses these issues:

1. Does your employee handbook remind employees they should have no expectation of privacy in emails, texts, voicemails, Facebook posts, and other communications relayed during working hours or on company equipment, and that you reserve the right to access such communications?

2. If you monitor emails, internet use, and/or the physical facility (through the use of security cameras), have you notified employees, and taken steps to minimize the invasiveness of such monitoring?

3. When an internal complaint is lodged, do you remind supervisors not to engage in or allow gossip about the complaint (which can be or can be construed as retaliatory)?

4. Do you maintain separate files for medical information (disability accommodation requests, workers compensation, medical leave requests, etc.), apart from personnel files?

5. Do you have a procedure for preserving the confidentiality of investigations, to the extent possible? For example, do you keep a separate file for the complaint and investigative notes, accessible only to supervisors with a need to know?