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ADA/ADAAA & GINA: 7 Things to Remember Now That Employers Are Operating Under a New Era of Enforcement

New regulations implementing the Genetic Information Nondiscrimination Act of 2008 (GINA) and the ADA Amendments Act (ADAAA), which amended the Americans with Disabilities Act of 1990 (ADA), went into effect on January 11, 2011, and May 24, 2011, respectively. Employers need to adjust their practices under these new regulations. In no particular order, here are seven (7) things to remember in light of the new regulations under GINA and the ADAAA:

You are not alone if you feel like the ADA now considers all of your employees to be disabled. This may be an exaggeration, but it is not too far off. Congress and the EEOC did not hide the fact that one of their goals under the ADAAA and its regulations, respectively, was to shift the focus of the analysis under the ADA away from "disabled" and more toward "reasonable accommodation." An important thing to remember is the following:

An employee considered "disabled" under the ADA, as amended by the ADAAA, must still demonstrate that he/she is "qualified" with or without a "reasonable accommodation."

Many, if not all employers, already operated under this so called new scheme, focusing on the question of whether the employee is "qualified" and whether the employer can provide a "reasonable accommodation." Employers should not feel limited by the broader definition of a disability. Rather, employers need to continue asking employee's, "How may I help you do your job?" and focus on whether an employee is "qualified" to do the job with or without a "reasonable accommodation."

See Emmanuel Boulukos and Tami Earnhart, Final ADAAA Regulations Expand Coverage, Address Some Employer Concerns, Ice Miller LLP Informed Employer (Mar. 30, 2011).

Many employers have what are commonly referred to as "no-fault" or "fixed-leave" attendance policies. The ADAAA did not change the fact that if an employee is disabled, then a hard and fast rule may not pass muster under the ADA. Employers still may need to provide additional leave as a reasonable accommodation. The U.S. District Court for the Northern District of Illinois came to such a conclusion when it recently denied the employer's motion for summary judgment in the case of EEOC v. United Parcel Services, Inc., which involved a 12-month leave policy. If you have such a policy, you should consider updating it.

See Emmanuel Boulukos, Not the End of the Story? Inflexible Leave Policies and the ADA, Ice Miller LLP Informed Employer (Sept. 28, 2010).

As a member of Ice Miller's Employment Litigation Group, I could not complete a list such as this one without giving at least one tip related to litigation. Although the "regarded as" prong of the ADA, as amended by the ADAAA, covers perceived impairments, it does not cover every medical condition. An employer that takes an adverse action because of an employee's actual or impaired medical condition has not "regarded" an employee as disabled (or impaired) (or impaired) under the ADA if the medical condition is both "transitory and minor." See 29 C.F.R. §§ 1630.2(g)(1)(iii) and 1630.15(f). "Transitory" means an "actual or expected duration of 6 months or less." Id. The regulations do not define "minor." The new regulations make it clear that this is a "defense" and as a result it would be advisable for employers to raise this as an "affirmative defense" (or at least as a "defense" in an answer) when faced with a "regarded as" disability lawsuit. If the defense is not raised, the employer may waive the defense.

Although employers need to be extra careful now if they wish to utilize voluntary wellness programs in their arsenal to keep down medical costs, they must remember a few things in light of GINA:

See Tami Earnhart – Partner, Ice Miller LLP, The Final GINA Regulations and Requests for Medical Information, INside Indiana Business (Dec. 3, 2010).

The GINA regulations recognize that employers need to obtain medical information all of the time. GINA's safe harbor language enables employers to avoid a GINA violation when an employee's medical provider provides "genetic information" that the employer never asked for in the first place. Therefore, the following safe harbor language should be included on EVERY request that an employer makes for medical information, e.g., requests to medical providers for information regarding requests for accommodation, worker's compensation or FMLA leave for the employee's serious health condition:

"The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order 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."

See Tami Earnhart – Partner, Ice Miller LLP, Final GINA Regulations Will Require Modifications to Requests for Medical Information or Examinations, Ice Miller Informed Employer (Nov. 15, 2010).

All of you have already been keeping your employees' medical information in files separate from your general employee files due to obligation under the FMLA and ADA laws/regulations. GINA merely reiterates this obligation and adds "genetic information" to the litany of medical information that employer's must keep in a separate file. However, GINA does not require that a third file be kept. Instead, GINA allows you to keep the "genetic information" of employees with all of the other medical information. Along these lines, the Equal Employment Opportunity Commission (EEOC) recently proposed additional regulations related to the requirement to maintain relevant employment and personnel records while a charge of discrimination is pending under GINA.

See Recordkeeping and Reporting Requirements Under Title VII, the ADA and GINA, A Proposed Rule by the EEOC on 06/02/2011, 76 F.R. 31892 (June 2, 2011).

The Bermuda Triangle of employment medical/disability law (FMLA, ADA and State worker's compensation laws) has added a forth leg – GINA. Although it may seem obvious to some, it is worth noting that each employee's situation is unique and may implicate rights and obligations under multiple laws. Therefore, a best practices approach for employers is to ask the following question when faced with an employee with an impairment, medical condition and/or injury:

Does this employee's situation involve any FMLA, ADA, GINA, or possibly worker's compensation rights and/or obligations?

See Ann H. Stewart, What's an Employer to Do? Lessons From Recent Worker's Compensation Cases, Ice Miller LLP Informed Employer (Dec. 29, 2010), for a recent case regarding an employer's obligations under the ADA to return an employee to work after a work-related injury.

GENERAL TIPs: In order to achieve compliance with the FMLA, ADA/ADAAA, GINA, state worker's compensations laws and many other employment laws, we recommend that employers do the follow:

Please contact Paul Sweeney at (317) 236-5894 or paul.sweeney@icemiller.com, or another member of Ice Miller LLP's Labor and Employment Practice Group if you have any questions regarding the ADA, ADAAA, FMLA, GINA or to discuss any other questions you may have about how your company can ensure that you comply with these laws.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

June 8, 2011