SLF LABOR AND EMPLOYMENT ALERT March 2009

IMPLEMENTATION OF THE GENETIC INFORMATION NONDISCRIMINATION ACT OF 2008

As reported in the May 2008 edition of the SLF Labor and Employment Alert, the Genetic Information Nondiscrimination Act of 2008 (“GINA”) was signed into law by President Bush on May 21, 2008. (See http://www.sniffenlaw.com/NL-May08.html). However, GINA does not become effective until November 21, 2009. On March 2, 2009, EEOC officially published its proposed regulations under the Genetic Information Nondiscrimination Act of 2008. The public will have 60 days to submit comments, after which the regulations will become final. A copy of the proposed regulations may be found at: http://edocket.access.gpo.gov/2009/pdf/E9-4221.pdf.

With the effective date approximately 6 months away, employers should familiarize themselves with the Act and begin the process of revising their anti-discrimination policies accordingly so they may be in full compliance upon the Act’s effective date.

While GINA affects employers and health care providers in many ways, following are the key provisions of the Act:

• Defines genetic information as any individual’s genetic tests, the genetic tests of an individual’s family members or the manifestation of a disease or disorder in the family members of such individual.

• Prohibits employment discrimination on the basis of genetic information, much like the currently protected categories such as age, race, color, religion, sex and national origin. This prohibits the consideration of an employee’s genetic composition when making hiring, firing, job placement, disciplinary or promotional decisions.

• Prohibits the acquisition of genetic information on an employee or the employee’s family members.

• Prohibits group health plans and health insurers from denying coverage to a healthy individual or charging higher premiums based solely on a genetic predisposition to developing a disease in the future.

Some commentators have described GINA as the most important piece of civil rights legislation in recent history. The full text of the law may be found at: http://www.govtrack.us/congress/billtext.xpd?bill=h110-493&show-changes=0&page-command=print.

NEW WHISTLEBLOWER PROTECTIONS WITHIN ECONOMIC STIMULUS BILL

The recently-passed economic stimulus bill contains some new, and much broader, whistleblower protections to ensure that employees of both private contractors and of state and local governments can disclose waste, fraud, gross mismanagement or a violation of law related to stimulus funds. The new provisions only apply to such non-Federal employers that receive a contract, grant, or other appropriation through the stimulus bill.

Known as the McCaskill Amendment, the new law prohibits these employers from taking a broad range of retaliatory actions, including discharge, demotion, or other forms of discrimination, against an employee who discloses to a person with supervisory authority over the employee, a State or Federal regulatory or law enforcement agency, a member of Congress, a court or grand jury, the head of a Federal agency, or an inspector general information that the employee reasonably believes is evidence of:

• Gross mismanagement of an agency contract or grant relating to stimulus funds;
• A gross waste of stimulus funds;
• A substantial and specific danger to public health or safety related to the implementation or use of stimulus funds;
• An abuse of authority related to the implementation or use of stimulus funds; or
• A violation of a law, rule, or regulation that governs an agency contract or grant related to stimulus funds.

The most significant aspect of the new law is that this protection extends to disclosures made in the ordinary course of the employee’s duties. Also, a complaining employee need only show that the employee’s disclosure was a “contributing factor” in the employment action taken. Remedies for violations can include reinstatement, back pay, compensatory damages, and attorney’s fees and costs.

EEOC REPORTS RECORD NUMBER OF CHARGES OF DISCRIMINATION FILED IN 2008

The EEOC has announced that a record-breaking number of charges of discrimination were filed during Fiscal Year 2008. The total number of charges filed totaled 95,402, a 15.2% increase from the previous year. During Fiscal Year 2007, the EEOC received 82,792 charges. This dramatic increase in the number of charges filed likely is an indicator of what is to come.

Charges alleging age discrimination increased the most, rising 29% (24,582 charges total). Next in line were charges alleging retaliation, which showed a 22.6% increase (32,690 charges total). The increase in retaliation claims is not surprising given recent employee friendly decisions issued by the U.S. Supreme Court which expanded the scope of Title VII’s anti-retaliation provision.

Claims of race discrimination increased by 11% (33,937 charges), while sex discrimination charges increased by 14% (28,372 total).

Other categories which experienced at least a 10% increase were: Religion – 14% (3,273 charges); National Origin - 13% (10,601 charges); and Disability - 10% (19,453 charges).

Because the Fiscal Year ends in September, the above numbers do not reflect charges filed during the last quarter of 2008. It is expected that at least 100,000 charges will have been filed by the end of the 2008 calendar year.

HIPAA: UPDATE ON DISPOSAL OF PROTECTED HEALTH INFORMATION

The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) provides protections for patient health information held by “covered entities.” Generally, a covered entity is a health care provider, a health plan, or a health care clearinghouse. (Note: additional information regarding the definition of covered entities may be found at the U.S. Department of Health and Human Services’ (“HHS”) covered entity information website: http://www.cms.hhs.gov/HIPAAGenInfo/06_AreYouaCoveredEntity.asp.

As many employers and covered entities are aware, the purpose of HIPAA is to, among other things, provide patients with a variety of rights related to their health information. Issues frequently arise as to how this health information, commonly referred to as “protected health information” or “PHI,” is to be disposed. On February 18, 2009, HHS published six new “frequently asked questions” regarding the disposal of PHI. The six new frequently asked questions are as follows:

1. What do the HIPAA Privacy and Security Rules require of covered entities when they dispose of protected health information?

2. May a covered entity dispose of protected health information in dumpsters accessible by the public?

3. May a covered entity hire a business associate to dispose of protected health information?

4. May a covered entity reuse or dispose of computers or other electronic media that store electronic protected health information?

5. How should home health workers or other workforce members of a covered entity dispose of protected health information that they use off of the covered entity’s premises?

6. Does the HIPAA Privacy Rule require covered entities to keep patients’ medical records for any period of time?

To access the publication related to the six new frequently asked questions and HHS’ position with respect thereto, please visit the following link: http://hhs.gov/ocr/privacy/hipaa/enforcement/examples/disposalfaqs.pdf

Past Issues of SLF Labor and Employment Alert Posted on Website

You may view past issues of the SLF Labor and Employment Alert on the “Publications” page.

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