ADA and Batman—by Robin

March 27, 2017 - by: Robin Kallor 0 COMMENTS
Robin Kallor

Recently, Ben Affleck stepped down from directing the new Batman movie to focus on his recovery following recent treatment for alcoholism. His reason for stepping down was due to his belief that he was unable to give the directing role the focus and passion it requires.  Alcohol in the workplace

Alcoholism and drug addiction present complicated issues under the Americans with Disabilities Act (ADA). The ADA protects “qualified individuals with disabilities” – individuals who can perform the essential functions of their position (or the position they are seeking) with or without reasonable accommodation. “Disability” is defined as a person who has a physical or mental impairment that substantially limits one or more major life activities, or has a record of such impairment.

Individuals who currently engage in the illegal use of drugs are specifically excluded from the definition of a “qualified individual with a disability” (and therefore not protected by the ADA) when the employer takes action on the basis of their drug use. However, the ADA may protect a recovered addict who is no longer engaging in the illegal use of drugs, who can meet the other requirements of the definition of “disability.” The ADA may protect an alcoholic who can meet the definition of “disability.”  Notwithstanding, the ADA has specific provisions stating that individuals who are alcoholics or who are currently engaging in the illegal use of drugs may be held to the same performance and conduct standards as all other employees.

In the event an employee engages in misconduct or poor performance due to alcohol or drug abuse, the employer is entitled to discipline the employee. If the employer determines that discipline is necessary, the nature of the discipline should be the same that it would be for any other employee for failing to meet the employer’s performance standards or who engages in similar misconduct.

An employee whose poor performance or misconduct is due to the current illegal use of drugs is not covered by the ADA. Therefore, an employer has no legal obligation to provide a reasonable accommodation and may take whatever disciplinary action is appropriate, although the employer can offer the employee leave or other assistance so that the employer may receive treatment. On the other hand, an employee whose performance or conduct is attributable to alcoholism may be entitled to a reasonable accommodation to obtain some form of treatment, separate and apart from any disciplinary action the employer may choose to implement, assuming the discipline is not termination.

Like Ben Affleck, if the employee self-discloses their alcohol addiction before any performance related issues or misconduct surfaces, then the employer would be required to offer a reasonable accommodation; perhaps time off or a modified work schedule in order to attend treatments. The Family and Medical Leave Act also applies to eligible employees who seek treatment for drug and alcohol related conditions.

While Ben Affleck decided to go public with his addiction, most employees do not. Employers must be mindful of confidentiality requirements to ensure that information relating to employees’ disabilities or accommodations are kept confidential. It is human nature for employees to be curious or perceive that certain employees are given preferential treatment. Regardless of any morale issue, employers must respond to such inquiries that they do not discuss one employee’s situation with another in order to protect the privacy rights of all employees.

Peter Dinklage takes on Elf

December 05, 2016 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

It’s December, which means that those of us holiday fanatics can decorate and watch Christmas movies to our hearts’ content without shame.  Of course, I won’t tell anyone if you already had your tree up in November (like me) or if you never took it down from last year.  One of my favorite Christmas movies is Elf, starring Will Ferrell.  It is surprisingly packed with various employment law issues, such as employee substance abuse at work, sexual harassment, and workplace violence.  In one of the more memorable scenes, Peter Dinklage’s character, Miles Finch, demonstrates how good intentions can still lead to a harassment complaint.  Facepalm, retro disappointed man slapping forehead, d'oh!

As background, Will Ferrell’s character, Buddy, has been raised as one of Santa’s elves and only recently learned that he is actually human. He has tracked down his biological father, who works for a children’s book publisher in New York City. Unaccustomed to the human world and innocent to its realities, Buddy has difficulty adjusting to life in the Big Apple and working in his father’s office.

Cue Peter Dinklage, who steals the scene wherever he goes.  His character, Finch, is a best-selling children’s author ready get down to the business of pitching his latest book ideas. Finch, like Dinklage, is a busy, high-powered professional who also happens to have a form dwarfism. Tensions flare when Buddy barges into the room and innocently mistakes Finch for one of Santa’s elves. Unaware that Buddy was actually adopted and raised by Santa’s elves, Finch is understandably insulted and upset by Buddy’s elf comments. Finch tries to remain professional but quickly reaches his breaking point when Buddy calls him an “angry elf.” Finch then initiates his own trial by combat and attacks Buddy before storming out.

This is a great example of how even the most well-meaning employee can unknowingly engage in conduct giving rise to a harassment complaint. As the Equal Employment Opportunity Commission (EEOC) has explained, harassment is unwelcome conduct that is based on a protected status such as disability, race, color, religion, sex (including pregnancy), etc. It becomes unlawful where (1) enduring the offensive conduct becomes a condition of continued employment, or (2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

Had an employee complained about conduct like Buddy’s, the employer’s best practice would be to investigate immediately,  interview potential witnesses, provide the accused employee with an opportunity to tell his/her side of the story, and take prompt remedial action reasonably designed to end any harassment. Other best practices include regular employee and supervisor training as well as having a strong harassment policy clearly stating that harassment will not be tolerated, the various avenues for reporting such issues, and that retaliation will not be tolerated. I’ll leave the workplace violence issue for another post.

Thankfully for Buddy, his tale ends on a cheerful note and teaches us that the best way to spread Christmas cheer is singing loud for all to hear. In the meantime, what’s your favorite color?

 

Yes, Cher, you can ‘Turn Back Time’—you’ll just have to pay for it

November 07, 2016 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

By the way, if you haven’t heard, the Cubs won something called “the World Series.” Our long, national nightmarearrogant Cubs fanshas now officially begun. Now, onto things that actually matter.  Turn Back Time!

This past weekend, we rolled the clocks back. And though we got an extra hour of sleep (well, you may haveI have two children under four who didn’t realize it wasn’t time to get up yet), the cold, harsh reality is that the days are much shorter and the nights much longer, at least until March.

This annual power to “Turn Back Time” always reminds me of Cher. Everyone remembers Cher, right? I mean, she’s been (or she was, depending upon your age) a pop star since the days of the Johnson administration (the second one, not the first.) Who could forget “I got you babe” sung with her late husband Sonny Bono? (I mean this literally. Who on this earth, who has seen Bill Murray’s Groundhog Day, can forget this song? It’s physically impossible.) And, of course, she made her fans’ kids think she was cool again with “Believe.

The Cher that I remember, however, was something in between the young, blossoming starlet and the aged musical diva. It’s the big-haired, modern-day Cleopatra in fishnet stockings telling a crowd of sailors how badly she wanted to alter the space-time continuum for their love. You know, the music video you couldn’t watch because your momma didn’t approve. Or maybe that was just me.

Anyway, Cher’s tribute to all things 80s aside, the end of daylight savings time brings with it a couple of employment law problems many employers may simply overlook. The first is how to pay nonexempt employees working the graveyard shift when the clock strikes 2:00 a.m. twice. The Department of Labor has issued specific guidance on its website to answer the question. According to the DOL:

  • On the Sunday that Daylight Savings Time ends at 2:00 a.m., the employee works the hour from 1:00 a.m. to 2:00 a.m. twice because at 2:00 a.m. all of the clocks are turned back to 1:00 a.m. Thus, on this day the employee worked 9 hours, even though the schedule only reflected 8 hours.

The Fair Labor Standards Act (FLSA) requires that employees must be credited with all of the hours actually worked. Therefore, if the employee works the scheduled shift, employers must compensate the employee for all hours worked. If this extra hour kicks the employee over 40 hours for the workweek, the employer must pay the employee the overtime premium1.5x the employee’s “regular rate”for all hours worked over 40. Employers must be careful to check automatic payroll calculation software or applications to make sure they account for the extra hour. In large operations, failure to pay for the extra time may cause the employer to incur significant liability in the aggregate.

In addition to payroll challenges, the time change can also bring about changes in employee mood due to lack of sunlight. Known more commonly as “seasonal affective disorder,” this extreme form of common seasonal mood cycles is actually considered a type of depression. According to the Mayo Clinic’s website, employees suffering from seasonal affective disorder may exhibit symptoms of major depression, such as:

  • Feeling depressed most of the day, nearly every day
  • Feeling hopeless or worthless
  • Having low energy
  • Losing interest in activities you once enjoyed
  • Having problems with sleeping
  • Experiencing changes in your appetite or weight
  • Feeling sluggish or agitated
  • Having difficulty concentrating
  • Having frequent thoughts of death or suicide

In light of these symptoms, employers presented with an employee claiming to suffer from seasonal affective disorder should begin the interactive process with their employees to determine what, if any, reasonable accommodation(s) may be available. Failing to pay attention to employee requests can lead to liability. For example, in 2012, the Seventh Circuit Court to Appeals upheld a jury verdict in favor of a school teacher who claimed under the Americans with Disabilities Act (ADA) that her employer failed to accommodate her seasonal affective disorder by refusing to transfer her to a classroom with natural light. (Yes, folks, this is real life.)

On the other hand, if you don’t have a window available, the Job Accommodation Network suggests four basic light products that may reasonably accommodate workers with this disorder, including: “Light Boxes,” “Light Visors,” “Flourescent Desk Lamps” or “Dawn Simulators.” Each of these is meant to mimic the natural sunlight employees are typically exposed to during other times of the year.

Employers also should not rule out the possibility of leave for an employee suffering from symptoms of the disorder. Leave may be covered under the Family and Medical Leave Act (FMLA) or state leave laws depending on the employee’s tenure with the company and state law requirements. Lastly, employers are reminded that, under the ADA, as amended, they cannot take into account the mitigating effects medication may have in improving the employee’s mood or condition, but must instead treat the employee as disabled at all times. At the same time, any negative side effects caused by such medication may also require accommodation.

And the beat goes on…

 

Alcoholism and how USC may have violated ADA by firing Steve Sarkisian

October 19, 2015 - by: David Kim 8 COMMENTS
David Kim

On October 12, 2015, Steve Sarkisian was fired as  head coach of the University of Southern California (USC) football team. While USC contends Sarkisian was fired for “cause,” there is no question that his alcohol-related behavior led to his termination. Whether the termination was or was not properly for “cause” is relevant, in part, because it would likely determine whether USC would have to pay the remaining three years of his five-year contract. Whether the termination was lawful under the Americans with Disabilities Act (ADA), or analogous state law statutes alcoholismprohibiting discrimination on the basis of disability, is another question. And due to the high public profiles of the institution and the individual involved, this may be a question that is never entirely answered.

Back in August, video emerged of a clearly intoxicated Sarkisian at a USC pep rally, slurring during his speech and using profanity. The coach publicly apologized, contending that his behavior was the result of mixing alcohol and certain undisclosed medication. While Sarkisian denied having a drinking problem, he contended he would go to “treatment” to seek help. It appears Sarkisian neither sought help nor ceased his alcohol consumption. Reports last week emerged from sources that the coach “showed up lit to meetings again” and was told to leave the premises on Sunday. That same day, it was announced by USC Athletic Director Pat Haden that Sarkisian was asked and had agreed to take an indefinite leave of absence for his condition. On the next day, he was officially fired.

Well, that leave of absence turned into a termination real quick, huh?

Since Sarkisian’s termination, further reports have leaked suggesting that this has been an ongoing issue with Sarkisian, not only at USC, but that there was evidence of alcohol-related abuse during his prior head-coaching stint at the University of Washington. Therefore, it’s possible that the coach has had a prolonged alcohol abuse problem and one that has been known by USC officials for some time.

Alcoholism is considered a disability under the federal ADA and analogous state disability laws. Therefore, employers cannot discriminate on the basis of someone’s alcohol-related disability and must engage in the interactive process and provide a reasonable accommodation if necessary. Obviously, employees cannot simply come to work drunk and avoid disciplinary action by claiming reliance upon alcohol. And employers are permitted to have policies expressly prohibiting alcohol in the workplace or else employees will face harsh disciplinary action up to and including termination.

In addition, an individual who suffers from alcohol dependency still must be able to perform the essential job functions, and those include but are not limited to adhering to the company’s attendance policy and work performance standards. The hardest part really comes down to what type of accommodation the employer can offer that is reasonable, which is based in great part on the situation at hand, particularly the employee’s position and applicable duties. One common form of accommodation with respect to alcohol dependency is an unpaid leave of absence while the employee seeks treatment or other counseling. Frankly, it would be a red flag if an employer that grants an individual a leave of absence (for any reason, let alone a disability) then decides to terminate that same individual shortly after the leave was given. But that’s exactly what USC did.

Therefore, it will be interesting to see what Sarkisian does going forward, either during or once he has completed his rehabilitation treatment. He could choose to fight and contend that his termination while on a leave of absence for a disability was unlawful. Of course, he would have to address every single detail regarding his alcoholism in a public lawsuit, potentially scare off colleges who may wish to hire him for a coaching job in the future, and risk the fact that a lawsuit could take years and he recovers nothing. He could simply move on with his life, which would be forfeiting potentially large sums of money either in the form of damages (or pursuant to what may be owed under him by contract), seek treatment, and hope that another coaching opportunity presents itself at some point. Of course, he also could reach a private settlement with USC as well. It’s a tough decision for Sarkisian, particularly because of his high-profile occupation, and I would surmise some sort of private agreement will be achieved to spare both parties further public embarrassment.

Most employees, however, don’t have the public concerns that someone in Sarkisian’s position has, and would likely file a lawsuit if terminated in the same manner as the coach. Therefore, employers should tread carefully with respect to issues related to alcohol dependency and understand that while inappropriate behavior or failure to perform the essential job functions isn’t excused by an employee’s alcoholism, the employer still must evaluate whether a reasonable accommodation is appropriate and can be provided.

 

Need to learn more about hot to implement a legally sound and enforceable workplace drug and alcohol policy? Drugs and alcohol are an ongoing and serious concern for safety managers and HR, as substance use and abuse can impair safe work performance and descrease productivity. Prescription pain killers present serious challenges, even when used according to a doctor’s direction.  And in places where marijuana use has been legalized, employers must figure out how to balance workplace safety against workers’ rights. Do your supervisors know how to evaluate employees who may be under the influence? Do your policies and programs take into account laws like the ADA and FMLA? Join us on November 9 for the 90-minute BLR webinar Drugs and Alcohol in the Workplace: Effective and Legal Ways to Reduce Workplace Safety Risks for an in-depth look at how to develop and implement a fair and effective program to reduce the impact and associated costs of prescription and illegal drugs and alcohol in the workplace. For more information or to sign up for the webinar, go to http://store.hrhero.com/drug-alcohol-110915.

Human Resources lessons from NFL preseason football: employees returning to work after cancer treatment

August 24, 2015 - by: Josh Sudbury 1 COMMENTS
Josh Sudbury

For fans of Southeastern Conference football (and, I mean, who isn’t, right?), the name “Eric Berry” is one you don’t easily forget. Berry made his presence known as a defensive back for the Tennessee Volunteers from 2007-2009. Even though he played only three seasons in college, he was twice named a Defensive All American by unanimous vote. Berry was drafted in 2010 by the Kansas City Chiefs and was selected to the Pro Bowl as a rookie. He suffered a torn ACL in 2011 but returned the following year and earned another Pro Bowl selection in 2012 and again in 2013. Quite simplywater covers 71 percent of the Earth, Eric Berry covers the rest.  Back At Work

Berry’s career took a surprising and unfortunate turn in 2014, however, after he complained of chest pain during a game against the Oakland Raiders. He was soon diagnosed with Hodgkin’s lymphoma, ending his season, and threatening his life. Thankfully, after several months of chemotherapy treatment at Emory Hospital in Atlanta, Georgia, Berry is now cancer free. In June of this year, doctors cleared Berry to return to football activities. So far, he has played in both of the Chief’s preseason games.

The decision to put Berry back on the field shows Chief’s Head Coach Andy Reid can teach employers about more than just how to grow the perfect mustache (bask in its glory!!!). While bringing an all-star like Berry back into the fold seems like a no-brainer, dealing with returning cancer survivors in the regular workplace can be far more complicated.

To start, employers should understand that cancer survivors are considered “disabled” under the Americans with Disabilities Act (ADA) because they have a “record of disability.” Such a designation can prove complicated for employers where the employee, after returning from treatment, continues to amass absences.

Take the experience of one hospital employer in handling the return of an employee who had undergone successful treatment of skin cancer. After receiving a clean bill of health, the employee returned to work. Within a month of returning, however, the employee was frequently absent. After a string of three absences in a row, the employer placed the employee on a leave of absence and informed her she must bring a work release without restrictions in order to return. The hospital later terminated the employee for no call/no show on three consecutive days.

The Equal Employment Opportunity Commission (EEOC) filed suit on behalf of the employee claiming disability discrimination and moved for summary judgment. The court held the employee’s former skin cancer qualified as a “record of disability” under the ADA. The court also found the closeness in time between when she was placed on a leave of absence and her termination could support an inference of discriminatory intent, and thus, allowed the case to proceed to trial.

But employers should note that an employee’s cancer diagnosis doesn’t make them untouchable when they violate legitimate business policies or cannot perform the essential functions of the position. In a recent case from the Eleventh Circuit Court of Appeals, a woman who was undergoing cancer treatment accepted a position as a detention deputy in the corrections department of a jail. The position required lengthy shifts. When the employee’s medical condition prevented her from making it all the way through her shifts, her employment was terminated. The employee sued claiming her employer violated the ADA by failing to provide her with temporary light duty or extend her leave. The Eleventh Circuit rejected her argument noting completing full shifts and maintaining a regular schedule were essential functions of her position. Further, the Court noted the employee failed to show that she ever actually requested a leave of absence. Therefore, although a leave could have been a reasonable accommodation, the Court held the employer’s duty to engage in the interactive process had not been triggered.

These cases highlight the difficult considerations employers must take into account when dealing with an employee who is actively fighting cancer or returning to work after treatment. While employers should never make decisions based solely on the employee’s condition, they should not be gun-shy if the employee is rendered unable to perform his or her essential functions. In any situation in which you are uncomfortable making a decision regarding a potentially disabled employee, it is best to contact a trusted professional to discuss the situation before taking action.

And never throw over the middle on Eric Berry.

 

Need to learn more? Last year, there were 1.6 million new cancer cases in the United States, plus an additional 2 million nonmelanoma skin cancer diagnoses. And with these numbers set to rise, it’s safe to say you will have an employee, or an employee’s family member, fighting this dreaded disease. If the situation weren’t difficult enough on a personal level, HR also has to comply with the ADA and FMLAnot to mention GINA and a whole host of state and federal privacy laws. And productivity issues come into play when absences become protracted. Listen to Employees with Cancer: Commonsense Answers for ADA, FMLA, and Privacy Compliance – on CD.

All you need is employment law

August 04, 2014 - by: Andy Tanick 1 COMMENTS
Andy Tanick

Our blog seems to have focused quite a bit recently on stories from the world of sports, and given the number of professional athletes behaving badly lately, that comes as no surprise. So for this week, we’ll take a break from litigious punters, abusive running backs, and egotistical power forwards to focus on another area of entertainment. Our diversion is well-timed, because I was fortunate enough to attend Paul McCartney’s concert last weekend at Target Field in Minneapolis, where the hapless Minnesota Twins are usually the athletes playing badly, if not behaving badly.  Beatles

What do Paul McCartney and the Beatles have to do with employment law? Well, plenty as it turns out. In fact, with a little creativity, we can conjure up an employment-law subtext to many of the top hits by Sir Paul and his bandmates.

Let’s start with some obvious ones. What HR manager hasn’t had the nightmare of dealing with a lecherous employee who is fond of telling his coworkers, “I Want To Hold Your Hand”? On those seemingly rare occasions when such advances are welcome, the resulting workplace relationship almost always ends badly, and on those more frequent occasions when the proposition is declined, a sexual harassment complaint may not be far behind.

Many popular Beatles’ songs take on a whole new meaning when we view them through the prism of the reasonable accommodation provisions of the Americans with Disabilities Act. According to the Equal Employment Opportunity Commission (EEOC), it seems that an employer should begin engaging in the interactive process any time an employee says, “Help! I need somebody!” That’s when a top-notch HR manager will tell the employee, “We Can Work It Out,” if it can be done reasonably, without undue hardship. And once that employee has been accommodated and can resume happy and productive employment, he or she is sure to respond to any inquiries about work by saying, “I Get By With A Little Help From My Friends.” Or if the employee is Joe Cocker, something unintelligible that sounds sort of like that. (Too obscure a reference? Prove me wrong, readers!)

Of course, physical disabilities are not the only ones that employers are required to accommodate. So if one of your employees announces one day, “I Am The Walrus,” or even “I am the egg man,” for that matter, a whole different type of accommodation may be required. Unless of course, the employee does not suffer from a disability at all, but simply reported to work while Hi Hi Hi. (Yeah, I know, that’s the Wings not the Beatles; it’s called artistic license, and it’s a method well known to any Paperback Writer.) If that’s the case, you may need to look at your state’s drug and alcohol testing laws, rather than considering an accommodation.

While we’re on the subject of different protected classes, with today’s aging workforce, many senior employees may be asking their employer, “Will you still need me? Will you still feed me? When I’m 64.” An employer who gives the wrong answer to that question may find itself on The Long And Winding Road of an age discrimination lawsuit.

Switching to a different area of employment law, we’ve all seen a lot more wage and hour claims over the past few years. Having said that, however, I have yet to see an overtime claim arising from an employee being forced to work Eight Days A Week. Of course, we know that claim is false. Why? Because that employee may have been working a lot lately, but our time records show that she didn’t work Yesterday.

When viewed through the eyes of an HR manager, an employee’s plea to stay here and not go to work Back In The USSR turns into a somewhat outdated request for help with an H1-B visa. And in the event of a workplace injury, you’d better hope that the shop foreperson’s motto was not “Live And Let Die.”

Sometimes, despite the superhuman efforts of the HR Department and the company’s employment counsel, the employee may still have a valid claim. No employer is perfect. But even in that unlikely scenario, all is not lost; while money Can’t Buy Me Love, it can usually buy a reasonable settlement.

X-Men playing catch-up on genetics–the real-life wave of the present

May 27, 2014 - by: David Kim 0 COMMENTS
David Kim

Remember when the study of genetic information was deemed to be the purview of those in the medical field or reserved for films and television shows that were classified as “futuristic science fiction”? Not anymore. Today we live in a world where everyone is fully aware that their own genetic code and family history could be easily obtained, analyzed, and dissected, along with the sheer paranoia that comes with that knowledge.

This awareness is the result of extreme technological and medical advances and their dissemination, and accompanying commentary, through articles, blogs, and anything else that resides on the Internet. If that’s not enough, just turn on the TV or go to the movies and you’ll be inundated with characters being persecuted because of their genetic makeup.

The newest X-Men movie opened this past week, and while it’s a comic book movie filled with action and time travel, the underlying theme (yes, there is one) concerns the fear and subsequent discrimination and government action against individuals with mutated genes. On Orphan Black, BBC America’s hit TV show (yes, it’s on BBC America and yes, it’s quite popular), the main character discovers that she is one of many clones leading their own independent lives, and who eventually finds herself (or themselves) in the cross-hairs of the authorities, the medical institution that seemingly “created” them, and a mysterious religious organization with unknown motives. On Game of Thrones recently, Tyrion Lannister, on trial for the murder of King Joffrey, angrily exclaims that he is “guilty of being a dwarf,” not of killing Joffrey, noting his belief that his genetic predisposition is the reason he is being condemned.

What’s the relevance you ask? Well, I’m not suggesting employers need be worried about the disciplinary procedures related to an employee who has adamantium claws like Wolverine, or about the repercussions of an employee disclosing he or she is a clone. Nor am I suggesting that employers have highly sophisticated screening mechanisms to ensure that only genetically superior individuals can work there such as in the 1997 movie Gattaca.

But the truth is that people watch these type of shows and movies in droves, and read articles about genetic testing in the news or on the Internet, and come away believing the more subtle nuances and themes presented. Is it that genetic mutations will make someone able to fly? No. But is it that someone’s genetic background and information can be easily obtained, either by the government or their employer, and potentially used against them? Yes.

And while some part of this is paranoia and fear, some has actually become reality. Such a reality that the Genetic Information Nondiscrimination Act of 2008 (GINA) was enacted. Title II of GINA, which took effect on November 21, 2009, makes it illegal to discriminate against employees or applicants because of genetic information and strictly limits its disclosure. In addition to GINA, a number of states have laws prohibiting discrimination on the basis of genetic information.

Certain genetic traits also are already protected by other statutes. For example, people of short stature are often protected by the Americans with Disabilities Act because certain known causes of dwarfism are protected as disabilities. GINA, however, greatly expands the protection afforded to an individual’s genetic information. Just last year, the Equal Employment Opportunity Commission (EEOC) filed its first lawsuit against an employer for genetic discrimination under GINA. The employer had requested an employee provide certain family medical history during its post-offer medical examination, a violation of GINA, and ended up paying $50,000 in its settlement with the EEOC.

While certain exceptions apply, such as information obtained in connection with the Family and Medical Leave Act process, employers need to be wary not to request information from employees that could violate GINA so that it does not appear later that an adverse decision was made based upon this information. While it may seem like paranoia, an employee may believe that his or her genetic information was obtained by the employer and used as a basis for an employment decision. After all, this injustice is happening to their favorite characters on both the small and big screen virtually everyday.

“You’ve got mail! And it just might be a warrant for your arrest”

February 13, 2014 - by: Andy Tanick 0 COMMENTS
Andy Tanick

You don’t have to try very hard these days to find employment law references in pop culture. Movies and TV shows examine issues of employment discrimination, politicians seem unable to resist the urge to text photos of their private parts to their disgusted subordinates, and professional athletes provide ample fodder for lawyers in desperate search of HR blog topics. But when’s the last time a major news story emerged about the Health Insurance Portability and Accountability Act, or HIPAA? Now it is true that HIPAA made the news when it was initially signed into law by President Clinton, because (to greatly oversimplify) it served the laudable goal of guaranteeing continued health insurance coverage for employees who change jobs, without regard to preexisting conditions. But since those initial kudos, publicity about HIPAA has been about as hard to find as a day of calm weather in the American winter of 2013-14. AOL

That all changed last week, when the CEO of AOL, Tim Armstrong, publicly blamed unpopular changes to the company’s 401(k) policy on costs AOL had incurred because of two employees’ “distressed babies.” Specifically, Armstrong stated that AOL had to enact the new policy because, in part, “We had two AOL-ers that had distressed babies that were born, that we paid a million dollars each to make sure those babies were OK  in general. And those are the things that add up into our benefits cost.”  Suddenly, every pundit and commentator in the country became a HIPAA expert.

What was all the fuss about? Well, in addition to guaranteeing the “portability” of group health insurance, HIPAA also protects individuals from certain disclosures of their “protected health information,” or PHI. Of course, HIPAA only covers certain types of entities, only protects certain people, and only applies to certain information. Did it apply to Armstrong’s comments?

First, it does appear that HIPAA would apply to AOL’s group health plan. The law’s coverage includes certain health care providers, health care clearinghouses, and group health plans. AOL’s group health plan is a self-insured group health plan, meaning that while a carrier might administer claims, AOL would be intimately involved in the claims process and its benefits administrators and company executives might receive PHI obtained through the group health plan to administer and make decisions about the health plan.

Another relevant inquiry is how Armstrong received his information about the “distressed babies.” If he received it through employment records, as opposed to from AOL’s health plan, the information might not be considered PHI, and there would be no HIPAA violation (although other violations might have occurred).  However, if he received it in connection with the group health plan, a HIPAA violation was possible.

Armstrong also didn’t identify the babies at issue, let alone their parents. Can a violation occur when the employee isn’t specifically named? Again, the answer is “maybe.” To violate HIPAA, the inappropriate disclosure need not specifically identify the person with the condition; the law also applies where “there is a reasonable basis to believe [the disclosed information] can be used to identify the individual.” While most of AOL’s 5,000 employees probably had no idea who Armstrong was talking about, the mother of one of the “distressed babies” reported that within minutes of Armstrong’s statement, her husband began receiving calls from curious colleagues. Clearly, some co-workers were able to surmise from Armstrong’s statement the identity of the employees at issue.

Finally, while a comment about “distressed babies” clearly isn’t very specific about the medical conditions at issue, HIPAA prohibits statements about a person’s “physical condition,” among other things, as well as “the provision of health care to the individual” and the “payment for the provision of health care to the individual.” Armstrong’s comments here hit the trifecta: He commented about the babies’ physical condition, he made it clear they were receiving significant health care, and he mentioned the payment for the care.

Having said all of that, we don’t know what information Armstrong received, how or from what source he received it, or what independent investigation he might have done, all of which would be relevant to a detailed analysis of the issue. If either affected employee files a complaint with the Department of Health and Human Services, these are just a few of the questions the agency will ask Armstrong and AOL. Meanwhile, his comment has caused a whirlwind of negative publicity, culminating in AOL’s rescinding its 401(k) policy change.

What can an HR official learn from all of this? When it comes to employees’ health, conditions, health care, or payment for that health care, the less said, the better. HIPAA includes some significant potential monetary penalties, not to mention criminal penalties such as imprisonment for up to 10 years. While it’s unlikely that an inadvertent mention of an employee’s health condition will land a company official in the hoosegow, the lesson here–like the lesson in so many HR situations–is that when discussing employees, discretion is the better part of valor.

From Gattaca to GINA: Use of genetic information in workplace is problematic

February 03, 2014 - by: Josh Sudbury 0 COMMENTS
Josh Sudbury

If there is one thing that is universal about the entertainment world, it’s that it makes us all feel inadequate. Yes, with the airbrushed photos and the digital editing techniques, the stars and starlets who grace the covers of magazines and show up on the big screen all seem to have something (or multiple things) that we regular folk just don’t. I’d even bet most of the beautiful people look better rolling out of bed in the morning than I do on my best day.   GeneticEngineering

It’s true that in certain ways we are not all created equal. Each of us has our own genetic make-up, which is little more than the pooling of the genes—both good and bad—from our parents, and their parents, and so on. The combination of these genes determines things like our height, athletic ability, and our predisposition to certain medical conditions such as cancer. read more…

Fire all the “cripples” and the “fatties?!”

August 30, 2013 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

As I mentioned in my July post, the film Horrible Bosses has enough material for weeks’ worth of blog posts. With three atrocious bosses blatantly making the lives of their employees miserable and disregarding a long list of employment laws, it is certainly a plaintiffs’ attorney’s dream situation and an HR manager’s nightmare. I am sure the upcoming sequel will be full of blog material as well. This week, I turn my attention to the antics of Bobby Pellitt (Colin Farrell), the cocaine-addicted son of business owner Jack Pellitt.

Unfortunately, when his kindly, family-oriented, and environmentally conscious father suddenly dies, Bobby is left to run the business. As it turns out, Bobby’s business approach includes snorting as much cocaine as possible, having his own harem of prostitutes present at the office at all times, disregarding necessary safety precautions for hazardous materials, and firing all the “cripples” and the “fatties.” Bobby even starts calling one wheelchair-bound employee “Professor Xavier” of X-Men fame. According to Bobby, “Roaming around all day in his special little secret chair, I know he’s up to something.”

Aside from the obvious environmental, Title VII, and Americans with Disabilities Act (ADA) issues arising from Bobby’s bad behavior, it also raises the interesting issue of discrimination based on an individual’s weight. This has been a growing topic of conversation, given the rise in obesity rates in adults and children. Certain groups have been working to have obesity considered a protected class.  Although only a few state and local jurisdictions have chosen to pass laws expressly making obesity a protected class, recent litigation involving the Equal Employment Opportunity Commission indicates that morbidly obese individuals may be able to claim protection under the ADA (as amended) in certain circumstances. Employers also should be wary of potential claims alleging that morbidly obese individuals were “regarded as” having a disability.

In the film, Bobby’s reign of terror is short-lived and comes to a surprising (and abrupt) conclusion. But you will have to check out the movie to find out what happens. In the meantime, you can look to Bobby as an excellent resource for what NOT to do in the workplace.