Unsuccessful Cloture Vote for Dems on Paycheck Fairness Act

Democrats attempted to overcome a Republican filibuster on the Paycheck Fairness Act by calling for a cloture vote today. Democrats were two votes short of the required 60 votes to achieve cloture (which would place a time limit on debate about the Act). The roll call vote showed that 58 Democrats voted in favor of cloture, while 40 Republicans and 1 Democrat (Nelson, of Nebraska) voted against cloture. One Republican, Sen. Lisa Murkowski, was not present for the vote as she continues to await the poll results in Alaska from her mid-term election challenge by Joe Miller.

With Republicans gaining 6 Senate seats in the November 2010 elections, the likelihood of seeing the Act up for vote again in its present form is unlikely. Democrats may attempt some concessions, much like what was attempted unsuccessfully to gain passage of the Employee Free Choice Act, to get this matter for vote prior to January, 2011. However, with the inability to overcome a Republican filibuster and elections completed for the next two years, little incentive exists for Republicans to cooperate in bringing this matter to a vote.

GINA: At least it comes with its own warning language

The final rule for implementation of the Genetic Information Nondiscrimination Act (GINA) published this week by the Equal Employment Opportunity Commission. While much of the talk about GINA has been that it is not likely to have a great impact on employers (the law has been likened to a solution looking for a problem), it is important to note that GINA will impact the manner in which health care certifications are obtained under the Family and Medical Leave Act (FMLA).

GINA prohibits the gathering, requesting, requiring, or acquisition of genetic information (as defined by Section 1635.3(c) of the final rule) unless an exception applies. One exception is where the information is inadvertently (that's an important term) received as the result of a lawful request for medical information--such as when an employer requests completion of a health care provider certification form for purposes of evaluating the granting of FMLA leave.

However, an employer who receives genetic information by way of an FMLA leave request does not automatically get to avail itself of this safe harbor provision. According to the final rule, receipt of genetic information through a lawful request for medical information is only "inadvertent" if the individual and/or health care provider is told:

• not to provide genetic information
• in a communication that is in writing or verbal (where the employer does not typically make requests for medical information in writing)

The final rule provides suggested language that can either be incorporated into a cover letter provided to the employee at the time FMLA leave is discussed or that can be included on the employer's FMLA certification forms. That language is as follows:

The Genetic Information and 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 member's 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.

It is worth noting that this warning (or something similar) is mandatory in all cases where a covered entity (such as an employer) is requesting a health care provider to conduct a medical examination on the covered entity's behalf.

Before making a blanket change to all your FMLA certification forms, keep this in mind: in some situations, such as where an employee is requesting leave to care for a seriously ill family member, it may be necessary for the health care certification form to disclose genetic information. According to the preamble to the final rule, this type of disclosure is not inadvertent, but it is considered an exception to GINA's prohibitions. In other words, if you are providing FMLA paperwork under this circumstance, the warning listed above is not necessary.

On this Veterans Day, an FMLA refresher

As we honor our past and present servicemembers today, we thought it appropriate to revisit this post from 2009 concerning FMLA rights of this important part of our population:

http://laboremploymenthsd.blogspot.com/2009/01/i-need-to-take-some-time-off.html

A simple "thank you" is inadequate to convey our indebtedness to our military. We should endeavor to honor you not only today, but every day, for the gifts we have been given due to your sacrifices.

U.S. DOL: Tackling Crowd Management

Wouldn’t it be nice if your customers were tripping over themselves to get into your place of business to buy your merchandise or services? Not so, says the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”). In light of stories from previous years when employees or customers were trampled when the store opened, OSHA has encouraged 14 major retail companies to take precautions to prevent injuries during “Black Friday” and the holiday season's other major sales periods. OSHA sent a letter and fact sheet related to "Crowd Management Safety Tips for Retailers" to the CEOs at those 14 companies. You can access the safety tips here: https://www.osha.gov/OshDoc/data_General_Facts/Crowd_Control.html. According to a DOL news release, Assistant Secretary for OSHA Dr. David Michaels said that "Crowd-related injuries during special retail sales and promotional events have increased during recent years.” Dr. Michaels also said "Many of these incidents can be prevented by adopting a crowd management plan, and this fact sheet provides retail employers with guidelines for avoiding injuries during the holiday shopping season." For a copy of the letter sent to the CEOs and a list of the companies they represent, visit http://www.osha.gov/ooc/blackfridayletter.pdf.

6th Cir: Must be disabled to pursue a discrimination claim under portion of ADA

The 6th Circuit Court of Appeals (Michigan, Ohio, Kentucky, Tennessee) ruled yesterday that employees challenging an employer's drug testing policy on the basis that it discriminates against those with a disability must, in fact, have a disability to pursue such a claim. In Bates et al v. Dura Automotive Systems, the Court found that employees who were terminated because they consumed drugs containing substances prohibited under Dura's drug testing policy were not "disabled" under the meaning of a particular section of the Americans With Disabilities Act. The section cited by the employees stated that it was discriminatory for a "covered entity" to use qualification standards, employment tests, or screening criteria that eliminated individuals with disabilities unless it was for a job-related and business necessity reason.

In finding for the employer on this specific issue of law, the Court held that an employee who was not first found to be disabled could not bring a claim under that section of the ADA. (Keep in mind that other sections of the ADA do protect individuals who are presumed to have a disability and/or associated with someone who has or is presumed to have a disability.) Accordingly, Dura's drug testing policy that prohibited substances commonly found in drugs such as Xanax, Lortab and Oxycodone was not instituted or carried out in violation of the ADA.

While this seems like a triumph for employers, it is important to note that the case was filed prior to the passage of the Americans with Disabilities Act Amendments Act of 2008. The opinion in Dura focused on the language of the old ADA and the construction given to that language, noting in particular that to limit the application of the section at issue to "only cover disabled individuals is not an absurd construction or inconsistent with the intent of the statute." Since Congress was clear in enacting the Amendments that the ADA should be given the broadest construction possible, it is likely that a different result would have been achieved under the Amendments; the employees stand a greater chance of being deemed "disabled" under the Amendments. (Courts had held that the Amendments were not to be applied retroactively.)

Employers who have not revisited their drug-testing policies since the enactment of the Amendments would be wise to do so. An employer such as Dura could have still prevailed if it would have been able to show that the substances prohibited were out of business necessity and job-related.

Read the full opinion here.