Wyatt Employment Law Report


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Have You Updated Your FMLA Forms?

By Michelle D. Wyrick

medical leave requestMany employers use the United States Department of Labor’s (“DOL’s”) certification forms when evaluating and authorizing employee requests for family and medical leave. A few months ago, the DOL revised those forms. If you use the DOL forms, make sure you are using the updated forms.

Since the regulations under the Genetic Information Nondiscrimination Act of 2008 (“GINA”) were enacted in 2011, we have advised employers to include GINA “safe harbor” language on their Family and Medical Leave Act (“FMLA”) certification forms. GINA generally prohibits employers from using genetic information to make employment decisions. If certain requirements are met, however, an employer will not be held liable under GINA if it acquires genetic information inadvertently. In particular, the GINA regulations state that if an employer includes language similar to the following in any request for medical information, any receipt of genetic information in response to the request will be Continue reading


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The EEOC’s New Proposed Rule: Long-Awaited Workplace Wellness Regulations

By Leila G. O’Carra

Last year, the EEOC sued three different employers (Honeywell, Orion and Flambeau),1 claiming that the companies’ workplace wellness programs violated the Americans with Disabilities Act. Except for the EEOC’s court papers in these cases, employers have had little guidance on the ADA’s requirements for wellness programs. On April 20, 2015, the EEOC finally revealed its position.

worksite wellnessThe EEOC’s proposed rule applies to employers with 15 or more employees that offer workplace wellness programs that include disability-related inquiries or medical exams. According to the proposed rule, covered wellness programs must be reasonably designed to promote health or prevent disease. Further, covered wellness programs must be voluntary. That is, the employer: (1) may not require employees to participate; (2) may not deny coverage under any of its group health plans for non-participation (or limit benefits except as specifically allowed in the regulation); (3) may not take adverse employment action or retaliate against employees who do not participate; and (4) if the program is part of a group health plan, must provide a detailed notice with information about the program. The notice must be reasonably likely to be understood by Continue reading


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EEOC Announces Fiscal Year 2011 Statistics Showing Record Case Dispositions

By Edwin S. Hopson

On January 24, 2012, the U.S. Equal Employment Opportunity Commission announced that in Fiscal Year 2011, it received a record 99,947 charges of employment discrimination.  During that year it also obtained $455.6 million in relief through its administrative program as well as litigation.  EEOC also announced that, as in Fiscal Year 2010, it resolved more charges than it took in with 112,499 case resolutions.  That is an increase of some 7% over Fiscal Year 2010.  This meant that for the first time in 10 years, the EEOC reduced its case inventory.

 The Fiscal Year 2011 data also indicate:

-5.4 million individuals benefited from changes in employment policies or practices in their workplace during the past fiscal year.

-The EEOC’s mediation program reached record levels, both in the number of resolutions – 9,831 – which is 5% more than in Fisal Year 2010 (9,362), and benefits — $170,053,021– $29 million more than Fiscal Year 2010.

-The Commission filed 300 lawsuits and its litigation efforts resulted in $91 million of relief, representing the third year in a row that the relief obtained was greater than in the preceding fiscal year.

-Some 23 of the lawsuits filed by EEOC involved systemic allegations involving large numbers of persons and an additional 67 had multiple victims (less than 20).

-The Commission also filed 261 “merits” law suits, including direct law legal actions against respondents and interventions in pending private lawsuits alleging violations of the substantive provisions of the statutes it enforces, as well as suits to enforce administrative settlements.

-EEOC’s public outreach and education programs directly reached approximately 540,000 persons.

-In the federal sector, where the EEOC has different enforcement obligations, the Commission resolved a total of 7,672 requests for hearings, securing more than $58 million in relief for parties who requested hearings.  It also resolved 4,510 appeals from final agency determinations.

Charges alleging retaliation under all the statutes the EEOC enforces were the most numerous at 37,334 charges received, or 37% of all charges.  EEOC also announced that it received 35,395 charges alleging  involving claims of race discrimination; this comprised some 35% of all charges received. While the numbers race discrimination charges declined from Fiscal Year 2010, charges with the three other most frequently-cited allegations increased:

-Sex discrimination–28,534

-Disability discrimination–25,742

-Age discrimination—23,465

EEOC’s enforcement of the Americans with Disabilities Act of 1990, as amended, produced the highest increase in monetary relief among all of the statutes it administers: the administrative relief obtained for ADA charges increased by some 36% to $103.4 million compared to $76.1 million in Fiscal Year 2010.

In ADA cases, back impairments were the most frequently cited impairment, followed by other orthopedic impairments, depression and diabetes.

For the first full fiscal year of enforcement, EEOC received 245 charges under the Genetic Information Nondiscrimination Act, which prohibits discrimination on the basis of genetic information, including family medical history. Thus far, none of the GINA charges has proceeded to litigation.

The complete Fiscal Year 2011 enforcement and litigation statistics are available on the EEOC’s website at http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.


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Secretary of Labor Announces Her New “Vision” For American Workers

By Edwin S. Hopson

On December 7, 2009, U.S. Secretary of Labor Hilda L. Solis laid out her “vision” in the Fall 2009 Regulatory Plan for the Labor Department’s mission of ensuring “there are good jobs for everyone.” [Emphasis in the original].  Secretary Solis described a “series of 12 specific strategic outcomes” which she hopes will result in achieving her vision.  According to the Labor Department’s website, they are:

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Genetic Information Nondiscrimination Act Takes Effect; Final Regulations Under Review

By Michelle D. Wyrick

Title II of the Genetic Information Nondiscrimination Act (“GINA”) became effective on November 21, 2009.  Title II of GINA prohibits the use of genetic information in making employment decisions, limits employers’ acquisition and disclosure of genetic information, and prohibits retaliation against individuals who oppose actions made unlawful by GINA or who participate in proceedings to protect their rights under GINA.  The same remedies available under Title VII of the Civil Rights Act, including compensatory and punitive damages, are available under Title II of GINA.  According to a press release from the Equal Employment Opportunity Commission (“EEOC”), which is charged with enforcing Title II of GINA, final regulations implementing Title II of GINA are currently under review by the Office of Management and Budget and will be issued after the review process is completed.


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EEOC Revises Its Notice to Employees Poster

By Edwin S. Hopson

The U.S. Equal Employment Opportunity Commission (EEOC) has revised its Notice to Employees poster that all employers with 15 or more employees must post. The poster was revised to include information about the Genetic Information Nondiscrimination Act of 2008 which is effective November 21, 2009, as well as the Americans with Disabilities Act Amendments Act of 2008.  The EEOC website link to be used to order the new poster on line is:

http://archive.eeoc.gov/posterform.html

According to the EEOC press release, there are several ways for employers to comply with the posting requirements of the law:

1. Print the supplement below and post it alongside EEOC’s September 2002 “EEO is the Law” poster or OFCCP’s August 2008 “EEO is the Law” poster.

2. Print and post the EEOC’s November 2009 version of the “EEO is the Law” poster.

3. Order a new poster through the EEOC Clearinghouse at the address provided below. Please note that the EEOC poster is on backorder and will be shipped when the poster becomes available in the near future.

The new poster will also be available in Spanish, Chinese and Arabic before the GINA statute becomes effective on November 21, 2009.

If you need more than ten copies of the poster, you should contact:

U.S. Equal Employment Opportunity Commission Clearinghouse

P.O. Box 541

Annapolis Junction, MD 20701

Fax: (301) 206-9789 or call: 1-800-669-3362 (voice) 1-800-800-3302 (TTY)

To order the poster, complete and submit the form contained on the EEOC website link referenced above.

 


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The Genetic Information Nondiscrimination Act

By LaToi D. Mayo

GINA was first introduced in the House in 1995, finally passed in 2008 and signed into law by President G. W. Bush in May 2008.  GINA includes two titles. Title I amends portions of the Employee Retirement Income Security Act (ERISA), the Public Health Service Act, and the Internal Revenue Code, and addresses the use of genetic information in health insurance. Title II prohibits the use of genetic information in employment, prohibits the intentional acquisition of genetic information about applicants and employees, and imposes strict confidentiality requirements.

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