Limitations On Use of Genetic Information By Employers

Posted February 10, 2011 by OMW Employment Law
Categories: Discrimination, Employment Policies

In November 2010, the EEOC issued final rules under the Genetic Information Nondiscrimination Act (“GINA”). GINA prohibits employers with 15 or more employees from requesting, requiring, or purchasing genetic information of an individual or family member of the individual, except as specifically allowed.  An employer should not assume that since it rarely requires genetic testing that these regulations do not apply.  Genetic information can also include “family medical history.”  Therefore, employers may inadvertently gather family medical histories for FMLA leave administration, in the course of administering a wellness or insurance programs, or when conducting fitness for duty examinations.  Although there are exemptions for the acquisition of FMLA material and other incidental acquisitions of genetic information, employers should consult with their  attorney about any family medical histories or genetic information that it acquires.

For more information about GINA visit www.omwlaw.com.

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New ADA Regulations Explained

Posted August 7, 2010 by Karen Sutherland
Categories: Accommodation, ADA, Americans with Disabilities Act, Seminars
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On July 26, 2010, the U.S. Department of Justice released new regulations under Title III of the Americans with Disabilities Act (ADA) on accessibility for places of public accommodation.  “Places of public accommodation” are facilities operated by private entities whose operations affect commerce and fall within at least one of several categories that include a wide variety of businesses and service providers, such as: retail stores, theaters, sports venues, laundromats, drycleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants and lawyers, and many others. 

The new regulations are based on guidelines developed by the U.S. Accessibility Board and include requirements for existing facilities, but existing facilities that meet the 1991 standards do not have to comply with the 2010 standards until the facilities are altered. 

The new regulations also provide guidance on accessible seating, ticketing and ticket pricing; service animals; wheelchairs and other power-driven mobility devices (such as Segways®); video remote interpreting services; and reservations for accessible guest rooms in inns, motels, hotels, timeshares, and condos.

The Department of Justice has published a Fact Sheet summarizing the Highlights of the Final Rule to Amend the Department of Justice’s Regulation Implementing Title III of the ADA, and a Fact Sheet summarizing the 2010 Standards for Accessible Design  that covers everything from amusement rides and swimming pools to parking structures.  The text of the Revised Final Title III Regulation is also available online.

The U.S. Access Board and the Department of Justice are holding a free webinar on the new Title III regulations and standards on September 2, 2010 from 1:30 p.m. to 4:00 p.m., Eastern time.  For more information, or to sign up, go to www.accessibilityonline.org.

There are also new amendments to the Department of Justice’s regulations under Title II of the ADA, Nondiscrimination on the Basis of Disability in State and Local Governmental Services.  The Department of Justice has published a Fact Sheet on Highlights of the Final Rule to Amend the Department of Justice’s Regulation Implementing Title II of the ADA.  The text of the Revised Title II Regulation is also available online.

This posting is a brief and incomplete summary of a very complex law, and should not be relied upon for any purpose.  Additionally, the law may have changed or may have been clarified after this posting was written on August 6, 2010.

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No New Extension of COBRA Benefits Subsidy

Posted July 24, 2010 by Karen Sutherland
Categories: COBRA, layoffs, Unemployment
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The recent passage of the Emergency Unemployment Compensation Program Extension and Extended Benefits Temporary Provisions Extension did not extend the subsidy of COBRA benefits.   

Congress had previously extended the subsidy for COBRA benefits through May 31, 2010.   The COBRA subsidy provided a 65% health insurance premium subsidy for up to 15 months to qualified employees who were involuntarily terminated from their employment between September 1, 2008 and May 31, 2010.  The subsidy was also available to qualified employees who initially were eligible for COBRA due to a reduction in hours and then, after their hours were reduced, were involuntarily terminated between March 2, 2010 and May 31, 2010. 

Since the COBRA subsidy was not extended, qualified employees who lose their jobs and choose to continue their health insurance under COBRA have to pay up to 102% of their health insurance premium, which may be more than many unemployed workers can afford. 

Employees who qualified for the subsidy because they lost their jobs before May 31, 2010 will continue to receive the subsidy for up to 15 months from the date they were involuntarily terminated.

The U.S. Department of Labor posted the details regarding the COBRA subsidy extension for employees who lost their jobs on or before May 31, 2010 on its website at www.dol.gov/ebsa/COBRA.html.  For details on the Emergency Unemployment Compensation Program Extension and Extended Benefits Temporary Provisions Extension, see the United States Department of Labor Unemployment Insurance Program letter.

This posting is a brief and incomplete summary of a very complex law, and should not be relied upon for any purpose.  Additionally, the law may have changed or may have been clarified by the Department of Labor or the IRS after this posting was written on July 24, 2010.

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Who Is a “Son or Daughter” Under the FMLA?

Posted June 22, 2010 by Ross Farr
Categories: Employment Policies, FMLA, Wage and Hour Laws
Tags: , , ,

The U.S. Department of Labor issued a clarification today of  the definition of “son or daughter” under the federal Family Medical Leave Act (FMLA).  We already know that employees can use their FMLA-protected leave to care for a newborn or newly placed child, or to care for a child with a serious health condition.  The issue is whether an employee can use FMLA protected leave for the placement of a child or to care for a child for whom they have no legal and/or biological relationship and for whom they provide no financial support.  Think stepparents, grandparents, aunts and uncles, or any adult who has assumed the responsibilities of a parent for a child.

The Department of Labor says yes: employees get FMLA-protected leave to care for a child for whom the employee has assumed parental responsibilities:

For example, where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child, the employee could be considered to stand in loco parentis to the child and therefore be entitled to FMLA leave to care for the child if the child had a serious health condition. The same principles apply to leave for the birth of a child and to bond with a child within the first 12 months following birth or placement. For instance, an employee who will share equally in the raising of a child with the child’s biological parent would be entitled to leave for the child’s birth because he or she will stand in loco parentis to the child. Similarly, an employee who will share equally in the raising of an adopted child with a same sex partner, but who does not have a legal relationship with the child, would be entitled to leave to bond with the child following placement, or to care for the child if the child had a serious health condition, because the employee stands in loco parentis to the child.

Children can have more than two parents for the purposes of this definition.  For example, each parent and step parent could be entitled to FMLA to care for a child, if the facts show that each has assumed parental responsibilities.  

This clarification is great for employees who don’t have traditional nuclear families.  While it may seem to make things more complicated for employers who are concerned with FMLA abuse, it also streamlines the inquiry, because  ”[a] simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship.”  Administrator’s Interpretation No. 2010-3.

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Public Employees, Pagers and Privacy

Posted June 19, 2010 by Ross Farr
Categories: Cell Phones and PDAs, Employment Policies, Lawsuits

The U.S. Supreme Court issued its opinion in The City of Ontario v. Quon yesterday: http://www.supremecourt.gov/opinions/09pdf/08-1332.pdf

This had been a widely anticipated decision in employment law circles because it was assumed that the Court would give guidance on employees’ privacy interests in private communication on employer-owned communication devices, like pagers and cell phones.  However, the Court’s opinion, written by Justice Kennedy, decided not to decide “the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer.”  Instead the Court decided the case applying basic Fourth Amendment principles:

[W]hen conducted for a “noninvestigatory, work-related purpos[e]”or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable if it is “‘justified at its inception’” and if “‘the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of’” the circumstances giving rise to the search. 480 U. S., at 725–726.

Slip Opinion at 12.

Score one for judicial restraint, but employers do not have much more guidance on how to evaluate employees’ privacy interests than they did before this decision.

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Getting Paid for Getting Dressed

Posted June 19, 2010 by Ross Farr
Categories: Employment Policies, Wage and Hour Laws
Tags: ,

The U.S. Department of Labor recently issued a new interpretation of donning and doffing requirements under the Fair Labor Standards Act, bringing the Department’s interpretation in line with recent court decisions.  The issue is whether employees should be paid for putting on and taking off clothing before and after work.  You can read Interpretation No. 2010-2 in all its scintillating detail here: http://www.dol.gov/whd/opinion/adminIntrprtn/FLSA/2010/FLSAAI2010_2.pdf

The gist is that donning and doffing protective equipment that is required by law before or after a shift may be compensable, as can waiting time between donning and working.  To the extent that this new Interpretation contradicts a 2002 opinion letter from the Department of Labor on this topic, we are instructed no longer rely upon the opinion letter.

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Corporations Cannot Appear in Court Without an Attorney

Posted June 8, 2010 by Karen Sutherland
Categories: Attorneys, Lawsuits
Tags: , , , , , , , ,

The current economy may cause corporations to try to cut costs by having a non-attorney such as a corporate officer appear in court on their behalf.  After all, individuals can appear in court pro se (representing themselves without an attorney).  Foregoing legal representation is not a good strategy in Washington State, however, because the state’s case law requires corporations to be represented by an attorney.  For example, in a case called Lloyd Enterprises v. Longview Plumbing and Heating Co., the attorney for one of the parties, a corporation called Berry, Inc., withdrew and Wade Berry, the president of the company (who was not an attorney licensed to practice in Washington State) filed legal documents with the Superior Court himself on behalf of the corporation.  The attorneys for other parties in the case moved to strike the documents signed by Berry. 

The Superior Court gave  Berry, Inc. 20 days to file an answer signed by an attorney and when the corporation failed to do so, the court entered default judgments against Berry, Inc.  The Court of Appeals upheld the judgments against Berry, Inc. and stated: “Because corporations are artificial entities that can only act though their agents, we agree with the general common law rule, recognized by courts in other jurisdictions, including all federal courts, that corporations appearing in court proceedings must be represented by an attorney.”  The Court of Appeals in the Lloyd Enterprises case also noted that “save in a few aberrant cases” corporations, partnerships or associations cannot appear in federal court other than through a licensed attorney.

A later case, Biomed Comm, Inc., v. State Dept. of Health Bd. of Pharmacy, upheld the Lloyd Enterprises case and also made it clear that if a non-lawyer files legal documents in court on behalf of a corporation, the court should give the corporation a reasonable amount of time to have the documents signed by an attorney before dismissing the case.  In the Biomed Comm case, the corporation’s Board chair filed a petition for review from an administrative decision one day before the deadline and the Superior Court dismissed the petition because it was not signed by a licensed attorney.  The Court of Appeals reversed the order of dismissal and sent the case back to the Superior Court for further proceedings.

Three things to keep in mind about the requirement for corporations to be represented by a lawyer in court – first, the lawyer has to be licensed to practice in Washington State or admitted pro hac vice (a process by which a licensed Washington State attorney vouches for a licensed out-of-state attorney who is in good standing).  Second, having the corporation assign its claims to an individual who then appears pro se is not a feasible work-around.  Third, the requirement does not apply to cases in small claims court where the parties are not allowed to have lawyers appear for them (though lawyers can help the parties prepare their small claims court case).

The information in this post is not legal advice, nor does it create an attorney-client privilege.   It is a general overview only and should not be relied on.  Also, keep in mind that the law may have changed since this post was written on June 7, 2010.

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Breastfeeding Moms at Work

Posted May 20, 2010 by Karen Sutherland
Categories: Accommodation, Discrimination, Employment Policies, Wage and Hour Laws
Tags: , , , , , , ,

The Fair Labor Standards Act (FLSA) was recently amended to allow nursing mothers to take unpaid breaks to express breast milk at work.  This amendment is codified at 29 U.S.C. 207(r)(1).  It requires an employer to provide a “reasonable” break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express the milk.  It also requires the employer to provide a place other than a bathroom that is shielded from view and free from intrusion from co-workers and the public which may be used by an employee to express breast milk. 

Employers with fewer than 50 employees are not subject to the statute’s requirements if they would impose an “undue hardship” by causing the employer significant difficulty in relation to size, financial resources, nature, or structure of the employer’s business. 

The amendment to the FLSA does not preempt any state laws that provide greater protection.  Washington State, for example, has a law codified as  RCW 43.70.640 that encourages (but does not require) employers to adopt a breastfeeding policy and provide a sanitary, private location for expressing beast milk and refrigerated storage, which is explained in an article published by LegalVoice called “Breastfeeding in the Washington Workplace.” 

Washington State also has a law that went into effect in July of 2009 as an amendment to RCW 49.60.215 that allows mothers to breastfeed their babies in places of public accommodation (stores, theatres, restaurants, gyms, libraries, hotels, shopping malls, buses, parks, government buildings, museums, etc.).  In places of public accommodation, the proprietor cannot require a breastfeeding woman to go to a particular place or cover up herself or her baby.  However, the Washington State law does not require employers to allow mothers to bring their babies to work and it would not apply in the workplace unless the workplace met the definition of a “place of public accommodation.”  For example, if a mother who worked at a museum was visiting a museum gallery with her baby on her lunch break, she would be allowed to nurse her baby in the gallery just like any other patron.   

The Washington State Human Rights Commission and the Breastfeeding Coalition of Washington have developed a “Guide to Breastfeeding and Washington State Nondiscrimination Laws” that provides more details on the public accommodation statute.

To date, the U.S. Department of Labor has not adopted regulations addressing the new law on taking breaks to express breast milk, so there is no official guidance on how often breaks can be, how long they can last, or how private the area provided for expressing breast milk must be.  For assistance on applying the new law to a particular situation, it may help to contact an attorney who has experience with the FLSA and an understanding of the issues relating to breastfeeding.

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The information in this post is not legal advice and should not be relied on for any purpose.  Additionally, it may have become outdated after it was posted on May 19, 2010.

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Untangling the Maze of Disability Laws

Posted May 5, 2010 by Karen Sutherland
Categories: Accommodation, ADA, Americans with Disabilities Act, Federal Contractors
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The U.S. Department of Labor recently released an online guide to help employers determine which federal disability laws apply to their businesses or organizations.  Called the elaws Disability Nondiscrimination Advisor, it is a series of online questions to direct the user to the appropriate laws and to provide guidance on how they are implemented.  It also covers situations where employers may be affected by rules that apply to federal contracting or receiving federal assistance.   Once the laws that apply have been located, the user is guided through a summary of each applicable law and is directed to links that address the implications of each law for that type of employer. For example, the guidance on Title I of the Americans with Disabilities Act (ADA) discusses the ADA’s requirements for employers and also has references to public accommodations and to commercial facilities and links to a discussion of Title III of the ADA (which covers public accommodations and commercial facilities), which in turn includes a link to the Department of Justice, which enforces Title III of the ADA.  

The DOL’s elaws Disability Nondiscrimination Advisor does not cover state or local laws, which may provide broader protection to employees than federal law.  For information on Washington State disabilities law, go to the Washington State Departmentof Labor and Industries website for laws that are enforced by the Washington State Department of Labor and Industries (e.g., workplace injuries and safety).  Go to the Washington State Human Rights Commission website for laws that are enforced by the Washington State Human Rights Commission (e.g., discrimination because of a disability).  There are also articles about disability issues and related topics online on the Ogden Murphy Wallace website.  

This posting is not legal advice, and is only a brief summary of a complex area of the law.  Please keep in mind that the information cited in this posting may have changed after it was posted on May 5, 2010.

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COBRA SUBSIDY EXTENDED THROUGH MAY 31, 2010

Posted April 20, 2010 by Karen Sutherland
Categories: ARRA, COBRA, layoffs
Tags: , , , , , ,

Congress has extended the subsidy for COBRA benefits through May 31, 2010.  The previous extension of the COBRA subsidy had expired on March 31, 2010.  The COBRA subsidy provides a 65% health insurance premium subsidy for up to 15 months to qualified employees who are involuntarily terminated from their employment between September 1, 2008 and May 31, 2010.  The subsidy is also available to qualified employees who initially were eligible for COBRA due to a reduction in hours and then, after their hours were reduced, were involuntarily terminated between March 2, 2010 and May 31, 2010.  Prior to the adoption of the COBRA subsidy, qualified employees who lost their jobs and chose to continue their health insurance under COBRA had to pay up to 102% of their health insurance premium, which was prohibitive for many unemployed workers.  Employees who qualify for the subsidy only need to pay 35% of the premium amount during the subsidy period.

The U.S. Department of Labor has posted the details regarding implementation of the COBRA subsidy extension on its website at www.dol.gov/ebsa/COBRA.html.

This posting is a brief and incomplete summary of a very complex law, and should not be relied upon for any purpose.  Additionally, the law may have changed or may have been clarified by the Department of Labor or the IRS after this posting was written on April 20, 2010.

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