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As a courtesy, Fisher & Phillips LLP has provided a checklist of items to consider when revising your employee appearance policy and dress code – an especially timely topic given the evolving nature of employer expectations in this area.
Evolving Workplace Expectations and Standards
Pandemic prompted changes. Many workplaces have become more casual in recent years, and the COVID-19 pandemic accelerated this movement. Employers and co-workers alike probably don’t mind when a cat, dog, or child occasionally makes an appearance in a Zoom call, and they accept that many employees on those calls are wearing sweatpants with their camera-ready dress shirt. Moreover, many employers that want workers to return to the office have offered a variety of incentives, including a relaxed dress code.
What does this mean for your appearance standards?
These changes should motivate you to think about how to strike a balance between employee comfort and the standards of professionalism for your particular company culture and industry. Every workplace is different, but in general, you should consider the following questions:
| _____ | Will you create a general policy simply requiring employees to look professional and well-groomed? Or do you want to be more specific? |
| _____ | Will you require customer-facing employees to dress more professionally or formally than those who only interact with co-workers — whether in person or on camera? |
| _____ | Will you create a separate policy for Zoom meetings that may be more relaxed than your in-person appearance policy? |
| _____ | Do you want to be more specific about what attire is unacceptable in the office or on Zoom? For example, are jeans and a t-shirt allowed? What about baseball caps, sleeveless shirts, or hooded sweatshirts? Just be sure to review such policies for compliance with the workplace laws discussed in more detail below. |
Hairstyle equity. In addition to pandemic-related changes over the last few years, calls for social justice led many jurisdictions to pass laws combating workplace racial bias based on hairstyle. In fact, 19 states and many localities have passed a version of the CROWN Act, which prohibits employers from discriminating against employees and job applicants based on natural or protective hairstyles. Natural hair has not been treated with chemicals that alter color or texture — such as bleach or straightener. Protective hairstyles — such as braids, locs, twists, or bantu knots — tuck the ends of the hair away to protect from sun, heat, and other damage.
Racial discrimination based on hairstyles is a part of everyday life for many Black adults, according to a study by the CROWN Coalition — which was founded by Dove, National Urban League, Color of Change, and Western Center on Law and Poverty. Moreover, a 2019 Dove CROWN study found that Black women were 1.5 times more likely to be sent home from work because of their hair and 30% more likely to be made aware of a formal workplace appearance policy than their co-workers.
In light of laws banning hairstyle bias and to align with your efforts to be inclusive, you’ll want to consider the following about your appearance policy:
| _____ | Is the policy fairly and equitably applied to hairstyles regardless of race and ethnicity? |
| _____ | Are your policies culturally and ethnically inclusive? |
| _____ | Do you require employees to appear professional and well-groomed without creating hairstyle standards that unfairly restrict natural or protective hairstyles? |
| _____ | Are your standards based on a bona fide occupational qualification (BFOQ) that is reasonably necessary to the normal operation of your business or enterprise? For example, certain employees who work with food may have to wear hair or beard coverings or tie their hair back for safety and hygiene reasons. |
Reasonable accommodations and other legal considerations. While the COVID-19 pandemic and new CROWN Act requirements may prompt you to update your appearance policy and dress code, don’t forget to review your standards for compliance with other established workplace laws. Consider the following questions:
| _____ | Do you have a process in place to review accommodation requests? You may need to explore reasonable accommodations based on an employee’s religious practice or medical condition. |
| _____ | For example, does your policy ban hats and other head coverings? If so, you may need to accommodate a Muslim employee who wears a hijab. |
| _____ | Do you have a policy banning facial hair? If so, you may need to accommodate an employee with a skin condition — like Pseudofolliculitis Barbae — or a religious reason for growing a beard. |
| _____ | If an accommodation does not seem right due to your unique business needs, have you discussed with your employment law counsel the possibility of an undue hardship exception for the business? |
| _____ | Is your appearance policy gender-neutral? Without identifying a BFOQ, you shouldn’t create policies that cause greater burdens for employees of one gender than another. |
| _____ | Further, have you considered refraining from setting different standards based on gender altogether unless there’s a BFOQ — particularly in light of the 2020 SCOTUS decision in Bostock v. Clayton County? In that case, the Supreme Court held that Title VII of the Civil Rights Act shields workers from discrimination based on gender identity. |
| _____ | Have you considered all applicable state and local laws that may specifically address gender identity and workplace policies? |
| _____ | Does your policy align with the latest guidance from the National Labor Relations Board (NLRB)? Be sure to consistently enforce any rules prohibiting employees from wearing clothing with logos, political statements, or social justice messages. |
| _____ | Are you aware of the NLRB’s current position on employees wearing union insignia — on items such as buttons and t-shirts? An employer needs to show special circumstances that justify its actions when it interferes with its employees’ right to display such insignia. |
| _____ | Are there any safety concerns that should be reflected in your dress code? You may want to relax your appearance policy, but you should still consider whether to continue following some rules for safety reasons — either as a best practice or because it’s required by law. |
| _____ | For example, will you require certain workers to wear closed-toe shoes? Are there Occupational Safety and Health Administration (OSHA) rules that you need to follow for certain jobs? If so, you’ll want to ensure compliance. |
| _____ | Did you review your policies with legal counsel? Because so many evolving areas of law may impact your employee appearance policy and dress code, it’s a good idea to have experienced legal counsel review your standards for compliance before communicating any updates to your employees. |
Conclusion
Recent workplace shifts mean that it’s time to review your employee appearance standards and dress code to ensure they are fair and inclusive, as well as compliant with the latest legal developments. Keep in mind that consistency is key.
You may recall the Seinfeld episode where Elaine Benes consumes a $29,000 piece of cake from the 1937 wedding of the Duke and Duchess of Windsor. A birthday cake from an office party in Kentucky may have that pricey wedding slice beat. If you haven’t heard already, a Kentucky jury just served an employer with a $450,000 bill associated with a surprise office birthday party gone awry. Does this massive legal loss spell the end of office birthday parties as we know them? Thankfully, no. Despite the media attention the April 15th verdict has garnered, it had less to do with the fact that the employer threw a surprise party than with how it handled the situation – and particularly the fallout. All kidding aside, this case has important reminders for employers about how you should handle disabilities in the workplace – and you can easily avoid a similar fate by following some commonsense steps.
The Worst Birthday Party Ever?
This case stemmed from a surprise birthday party thrown by Gravity Diagnostics LLC for lab worker Kevin Berling. According to his lawsuit, Berling suffered from an anxiety disorder and specifically asked his office manager not to celebrate his birthday party in the office. Coincidentally, the office manager was out of the office on Berling’s big day and his co-workers decided to plan him a surprise birthday celebration. When Berling caught wind of it, he alleged that he suffered a panic attack and spent his lunch period hiding out in his car.
But it’s what happened next that was particularly damning for the employer. According to Berling, his managers subsequently called him into a meeting and scolded and belittled him for his reaction. In fact, according to media reports, Berling said he was accused of “stealing his co-workers’ joy.
This in turn led him to suffer another panic attack where he used methods such as clenching his fists to deescalate the situation. According to the lawsuit, his behavior alarmed the employer, who feared Berling might respond violently. He says they asked him to immediately leave the property. He alleged that the company terminated him several days later.
Berling sued his ex-employer for disability discrimination and by the time the case went to the jury the only claim to decide was whether Gravity Diagnostics reasonably failed to reasonably accommodate his disability. After deliberating for merely one and one-half hours, the jury awarded Berling $450,000 – which consisted of $120,000 in lost wages and benefits, $30,000 in future lost earnings, and $300,000 for pain and suffering, mental anguish, embarrassment, humiliation, mortification, and loss of self-esteem. At some point in the near future, the court will tack on reasonable attorneys’ fees and costs, which could considerably increase the final tally that Gravity has to pony up to Berling.
All in all, that’s a costly payout for a birthday cake and some decorations.
What Can You Do to Avoid a Similar Fate?
What went so wrong with this seemingly joyous occasion? The alleged facts of the case offer some simple steps for employers to take to avoid a similar fate:
There was some dispute in this case about whether Berling had explicitly informed his employer about his anxiety order. Regardless of what happened here, it’s a good reminder to be attuned to your employees that may have disabilities and are seeking reasonable accommodations – even if not specifically couched in those terms.
If an employee is expressing significant unease with an office social function, they may very well be signaling that they suffer from some form of disability such as an anxiety disorder. A request not to throw a party or to not participate in a similar workplace function could be construed by a court as a request for a reasonable accommodation if the employee ties such request to something that is health related. At a minimum, you should be aware that issues such as this could trigger your obligation to engage in an interactive process to discuss this issue further with your employees.
While many employees are excited about returning to the office, seeing co-workers again, and getting back into the swing of social interactions at work, you should be aware that this may not be the universal sentiment for all employees. In the post-pandemic world, many employees may still be cautious or even fearful about such social interactions – especially those who may be immunocompromised or live with vulnerable family members.
As much as you may want to promote employee engagement and interaction, you should realize we are in a new era. Some employees may simply choose to be more cautious while interacting with others. After the trauma of the last two years, in fact, some employees may find that this discomfort rises to the level of an anxiety disorder or similar disability.
You should train your employees – especially HR folks and front-line supervisors and managers – to be attentive to such issues. They should know the specific steps to take in response to requests for reasonable accommodations and handling potential disabilities. The outcome in this case may very well have been avoided had the employer provided good training to the office manager and other employees about how to respond in such situations. Leaving employees to navigate these issues on their own and figure things out “on the fly” is almost always a recipe for disaster.
Before taking any adverse action against a worker, you should consider working with appropriate staff to look into whether there have been performance issues, disabilities, or any mitigating circumstances before making a final decision to discipline an employee. This process should be well-documented and consistent across the board.
In this case, the company alleged that it was concerned about violent behavior by Berling and acted on its “zero tolerance” policy towards workplace violence in making the decision to discharge him.
Depending on the circumstances, removing an employee from the workplace may be the right call from a workplace violence prevention standpoint. If an employee makes a threat or commits an act of violence, termination may simply be the best course of action. When an employee has not made a direct threat but you have witnessed behavior that may suggest the employee could be violent, you may want to remove the employee from the workplace until you can more carefully evaluate what you observed and make an informed decision concerning continued employment. This would include following up by asking the right questions, investigating, and figuring out what was happening with the employee in the specific situation. In some cases, a “cooling off” period of paid leave might be worth considering to assess the situation further and determine the appropriate course of action – rather than immediately making the decision to terminate without having all the facts.
Conclusion
Cases such as this generate a lot of attention and buzz due to their novelty. The facts of this case may certainly be unique. But cases like this are a good reminder for all employers to take a step back and contemplate how you would have handled a similar situation, and what you would have done differently. Keeping the points above in mind may help you avoid a similar outcome and ending up with egg (or birthday cake) on your face.
The U.S. Supreme Court recently ruled that employers can’t terminate workers based on their lesbian, gay, bisexual, transgender or queer (LGBTQ) status, and employers should understand that the ruling provides employment protections beyond being fired.
The court ruling is significant as the decision makes clear that “sex” discrimination under Title VII of the Civil Rights Act of 1964 includes sexual orientation and gender identity.
Title VII prohibits an employer from discriminating against workers based on protected characteristics with respect to terms and conditions of employment, including hiring, firing, laying off, training or disciplining.
An employer may not discriminate with respect to benefits provided to any group of similarly situated workers that includes members of a protected class, and that would be particularly true with respect to health care coverage, parental leave and similar emoluments.
Employers should thoroughly review their application, hiring and ongoing work processes to look for issues that may relate to these areas, said Randy Coffey, an attorney with Fisher Phillips. The review should include health plan coverage and procedures, leave and insurance benefits, and any other areas in which LGBTQ employees conceivably might be affected or treated differently from other employees, he said.
Workplace Protections
Under Title VII, employers are prohibited from discriminating against workers because of their color, national origin, race, religion or sex. The act makes it unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment.”
The Supreme Court held in its landmark ruling, Bostock v. Clayton County, Ga., that an employee’s “homosexuality or transgender status is not relevant to employment decisions.” Federal appeals courts had disagreed on whether Title VII’s ban on discrimination based on sex included LGBTQ status, but the high court found that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
The decision focused on unlawful terminations, which were the subject of the cases before the court, but the ruling extends to all employment actions that are protected under Title VII.
“The Supreme Court’s decision not only prohibits an employer from refusing to hire or discharging an employee based on LGBTQ status, but also prohibits treating employees differently in the spectrum of compensation, terms or conditions of employment because of the individual’s LGBTQ status,” explained Amy Blaisdell, an attorney with Greensfelder, Hemker & Gale in Chicago and St. Louis.
Of course, employers will still be able to defend such discrimination claims in the same ways they have defended against other Title VII discrimination charges. In the event that an employee can make a viable, initial claim of discrimination—or prima-facie case—the employer will then have the opportunity to show nondiscriminatory reasons for the employment action.
As is the case generally with respect to Title VII, it is a best practice not only to be fair but to document employee-related decisions, furnish accurate evaluations, and maintain and publicize anti-discrimination policies.
Employers should note that Title VII applies to employers with at least 15 employees, though many state and local anti-discrimination laws that protect LGBTQ workers apply to smaller employers.
Scope of the Ruling
“There are definite health and benefit considerations for employers stemming from the court’s ruling,” Blaisdell said. For example, LGBTQ employees may rely on the case to argue that employers are required to offer medical plans providing transgender medical benefits to them.
“Yet, many faith-based employers decline coverage for such services on the basis that covering transgender benefits would conflict with moral and religious teachings,” she said. “This push and pull between individual rights and religious liberties was left unresolved by the court’s decision.”
Jay Dade, an attorney with Polsinelli in Kansas City, Mo., said he would caution anyone from drawing legal conclusions past the issues addressed by Bostock—that is, those of employment. However, he noted, employers are always free to offer protections beyond those provided by applicable laws and many provide employment protections to LGBTQ employees through workplace policies.
“The court also made it a point to note that these cases did not require the court to address concerns about religious conviction,” added Jason Plowman, also an attorney with Polsinelli in Kansas City, Mo. On that point, the court specifically noted that “how these doctrines protecting religious liberty interact with Title VII are questions for future cases” because “none of the employers before us today represent in this court that compliance with Title VII will infringe their own religious liberties in any way.”
The intersection of these two sets of protections will almost certainly be a focus of future litigation related to sexual orientation and gender identity, along with how the Bostock ruling applies or does not apply in other contexts, Plowman said.
For instance, the U.S. Department of Health and Human Services (HHS) announced a final rule on June 12, three days before the Bostock decision, that eliminated anti-discrimination protections based on gender identity in health care and health insurance that the agency said were unenforceable and exceeded the prior administration’s authority.
“The Supreme Court ruling does not directly impact the recent HHS rule,” noted Jeffrey Smith, an attorney with Fisher Phillips. That’s because the HHS interpretation is based on Section 1557 of the Affordable Care Act, while the Supreme Court was interpreting provisions of Title VII.
“That said, it does demonstrate a shift in the legal landscape, and it may be harder for HHS to continue to enforce the interpretation it has just released,” Smith added.
Coffey said employers should expect a wave of litigation over the “outer reaches” of the Bostock decision. “There is no question that there will be many new filings alleging discriminatory failures to hire, harassment and hostile work environment claims, and discriminatory termination, all based on the sexual orientation, transgender status or gender identity of applicants and employees.”
Review Policies
For many employers, the Bostock decision will reinforce their policies prohibiting discrimination in employment on the basis of sexual orientation and gender identity, said Lori Armstrong Halber, an attorney with Reed Smith in Philadelphia and Princeton, N.J. Other employers will need to amend their policies immediately to include sexual orientation and gender identity within the classes protected from discrimination in their workplace.
“All employers would be best served by taking the opportunity to educate and train their employees on their anti-discrimination and anti-harassment policies and to focus some of that training on LGBTQ bias,” she said.
The split among appeals courts over whether Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination deepened Feb. 26, as the 2nd U.S. Circuit Court of Appeals ruled that it does. The decision makes it likely that the Supreme Court ultimately will have to rule on the issue, said Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y.
Two appellate courts now agree with the Equal Employment Opportunity Commission’s (EEOC’s) position that Title VII protects against discrimination based on sexual orientation.
“Claims of sexual orientation discrimination are increasingly being litigated,” said Sam Schwartz-Fenwick, an attorney with Seyfarth Shaw in Chicago. “[A]n increasing number of courts are finding that such claims can be brought under Title VII, the law remains in flux. This uncertainty will continue until the Supreme Court addresses the issue or Congress passes clarifying legislation.”
He recommended that employers increase their sensitivity to issues related to sexual orientation in the workplace during this period of uncertainty.
Phillips noted that 22 states plus the District of Columbia prohibit sexual orientation discrimination.
Fired Gay Skydiver Sues
In the 2nd Circuit case, a skydiving instructor sued his former employer, alleging he was fired from his job after he revealed to a female customer that he was gay. He told her this to calm her worry about being strapped tightly to him during the jump. Her boyfriend complained to the employer following this disclosure and alleged that the skydiver touched her inappropriately, and the instructor was discharged. He alleged sex discrimination under Title VII, asserting that he was fired because he failed to conform to male sex stereotypes and because he was gay.
The plaintiff died in a skydiving accident, but his estate continued with the claim. The district court dismissed his Title VII claim. It held that the plaintiff had failed to show gender stereotyping under Title VII based on his sexual orientation. In addition, it noted that prior case law in the 2nd Circuit held that Title VII did not prohibit discrimination based on sexual orientation.
2nd Circuit Changes Course
During oral arguments before the 2nd Circuit in this case, the EEOC advocated for a broad reading of Title VII that encompassed sexual orientation. But the Justice Department argued that Title VII’s prohibition on sex discrimination did not extend to claims of sexual orientation discrimination, Schwartz-Fenwick noted.
The 2nd Circuit reversed, overruling prior case law and determining that sexual orientation should be treated as a subset of sex discrimination for several reasons:
The 2nd Circuit also observed that the EEOC and the 7th Circuit had reversed their previous views that Title VII did not bar sexual orientation discrimination, Schwartz-Fenwick noted.
But in 2017, the 11th Circuit held that Title VII did not extend to sexual orientation, he observed. The Supreme Court declined to review the 11th Circuit Court’s decision in December 2017.
The other federal appeals courts—namely the 1st, 3rd, 4th, 5th, 6th, 8th, 9th and 10th Circuits—have also held that sexual orientation is not expressly covered by Title VII, said Sean Crotty, an attorney with Honigman in Detroit. The Supreme Court may want to see more recent opinions from the circuits on the issue before granting review, he said.
The 2nd Circuit encompasses Connecticut, New York and Vermont.
The State of Florida has updated its Discrimination poster to include pregnancy as a protected class. The state’s Civil Rights Act was amended earlier this year to prohibit discrimination on the basis of pregnancy. This amended law took effect July 1st and you are required to post this revised notice. Be sure to check your postings to make sure you have the updated notice posted. Please contact out office if you need a copy of the updated notice.
Can corporations shift targeted workers who have known high medical costs from the company health plan to public exchange (aka Marketplace/SHOP) based coverage created by the Affordable Care Act? Some employers are beginning to inquire about it and some consultants are advocating for it.
Health spending is driven largely by those patients with chronic illness, such as diabetes, or those who undergo expensive procedures such as an organ transplant. Since a large majority of big corporations are self-insured and many more smaller employers are beginning to research this as an option to help control their medical premiums, shifting even one high-cost member out of the company health plan could potentially save the employer hundreds of thousands of dollars a year by shifting the cost for the high-cost member claims to the Marketplace/SHOP plan(s).
It is unclear if the health law prohibits this type of action, which opens a door to the potential deterioration of employer-based medical coverage.
An employer “dumping strategy” can help promote the interests of both employers and employees by shifting health care expenses on to the public through the Marketplace.
It’s unclear how many companies, if any, have moved any of their sicker workers to exchange coverage yet, which just became available January 1, 2014, but even a few high-risk patients could add millions of dollars in claim costs to those Marketplace plans. The costs could be passed on to customers in the next year or two in the form of higher premiums and to taxpayers in the form of higher subsidy expenses.
A Possible Scenario
Here’s an example of how an employer “dumping-situation” it might work:
At renewal, an employer reduces the hospital/doctor network on their medical plan to make the company health plan unattractive to those with chronic illness or high cost medical claims. Or, the employer could raise the co-payments for drugs or physician visits needed by the chronically ill, also making the health plan unattractive and perhaps nudging high-cost workers to examine other options available to them.
At the same time, the employer offers to buy the targeted worker a high-benefit “platinum” plan in the Marketplace. The Marketplace/SHOP plan could cost $6,000 or more a year for an individual in premiums, but that’s still far less than the $300,000 a year in claim costs that a hemophilia patient might cost the company.
The employer could also give the worker a raise so they could buy the Marketplace/SHOP policy directly.
In the end, the employer saves money and the employee gets better coverage. And the Affordable Care Act marketplace plan, which is required to accept all applicants at a fixed price during open enrollment periods, takes over the costs for their chronic illness/condition.
Some consultants feel the concept sounds too easy to be true, but the ACA has set up the ability for employers and employees to voluntarily choose a better plan in the Individual Marketplace which could help save a significant amount of money for both.
Legal but ‘Gray’
The consensus among insurance and HR professionals is that even though the employer “dumping-strategy” is technically legal to date (as long as employees agree to the change and are not forced off the company medical plan), the action is still very gray. This is why many employers have decided this is not something they want to promote at this time.
Shifting high-risk workers out of employer medical plans is prohibited for other kinds of taxpayer-supported insurance. For example, it’s illegal to persuade an employee who is working and over 65 to drop company coverage and rely entirely on the government Medicare program. Similarly, employers who dumped high-cost patients into temporary high-risk pools established originally by the ACA health law are required to repay those workers’ claims back to the pools.
One would think there would be a similar type of provision under the Affordable Care Act for plans sold through the Marketplace portals, but there currently is not.
The act of moving high-cost workers to a Marketplace plan would not trigger penalties under ACA as long as an employer offers an affordable medical plan to all eligible employees that meets the requirements of minimum essential coverage, experts said. If workers are offered a medical plan by their employer that is affordable coverage and meets the minimum essential coverage requirements, workers cannot use tax credits to help pay for the Marketplace-plan premiums.
Many benefits experts say they are unaware of specific instances where employers are shifting high-cost workers to exchange plans and the spokespeople for AIDS United and the Hemophilia Federation of America, both advocating for patients with expensive, chronic conditions, said they didn’t know of any, either.
But employers are becoming increasingly interested in this option.
This practice, however, could raise concerns about discrimination and could cause decreased employee morale and even resentment among employees who are not offered a similar deal, which could end up causing the employer more headaches and even potential discrimination lawsuits.
Many believe that even though this strategy is currently an option for employers, in the end, it may not be a good idea. This type of strategy has to operate as an under-the-radar deal between the employer and targeted employee and these type of deals never work out. Most legal experts who focus on employee benefits do not recommend this strategy either as it just opens the door of discrimination claims from employees.
Please contact our office for assistance in reviewing all of the benefit options available to your company and employees under ACA.
Does your company currently use forms created more than three years ago that asks for information about an applicant or an employee’s family medical history?
Do your supervisors and managers know that if they are “friended” by an employee on a social media site and they see medical information relating to the individual or the individual’s family member, they have violated a federal law and subjected the company to liability?
Has your company failed to update Family Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), workers’ compensation, no-harassment, and other policies and procedures to comply with the Genetic Information Nondiscrimination Act (GINA)?
If you answered yes to any of these questions, you should review the impact of GINA so your company does not become the next GINA “headline.”
What Is GINA?
The Genetic Information Nondiscrimination Act (GINA) has been an active federal law for five years now. However, many employers still know little about the law. Enacted in 2008, GINA generally prohibits employers from engaging in three types of conduct:
Most attribute GINA’s enactment and requirements as a response to a trend in which employers sought to rely on genetic information in an attempt to screen out potentially unhealthy employees to help control their surging health care costs.
Inadvertent Collection Of Genetic Information
Many employers today pay little attention to GINA on the mistaken assumption that they do not collect genetic information. But there are three very common situations in which an employer can unknowingly collect genetic information.
First, employers regularly request medical documentation to support a potentially disabled employee’s request for a reasonable accommodation.
Second, employers regularly request medical documentation to support an employee’s request for leave under FMLA.
Third, many employers require a medical examination upon hire and, as a result, receive medical information in that context.
In each of these situations, the employer might acquire genetic information (without intentionally requesting it) and would violate GINA as a result of doing so. Fortunately, GINA provides a “safe harbor” that can protect an employer in such situations.
How To Avoid Noncompliance
When an employer requests medical information, it must warn the provider not to provide genetic information. When the employer makes such a warning, the “safe harbor” provision provides that any receipt of genetic information in response to their request will be deemed unintentional and not in violation of GINA.
As a result, it is imperative that employers include this specific warning any time that they request health-related information from a health care provider or an employee.
Of course, an employer could also obtain genetic information in a less formal situation. For example, a supervisor could obtain genetic information about an employee during a casual conversation, through email, or through social media. As long as the supervisor does not ask follow-up questions and does not take any employment-related action based on the accidentally acquired info, this information would be deemed unintentional. However, the use or disclosure of the accidentally acquired information would still violate GINA.
Does Your Wellness Program Violate GINA?
The federal regulations also make clear that an employer does not violate GINA if the employer requests genetic information as part of a “voluntary wellness program.”
For such a program to be deemed voluntary, the employer must show that:
Another reason that employers may be less knowledgeable about GINA (as compared to other federal laws) is that relatively few lawsuits have be filed since the law was enacted. According to EEOC statistics, there were just 280 charges of GINA-related discrimination filed in 2012, or around 0.3% of the overall charge filings for that year. However, the number of filed, GINA-related charges has increased by nearly 40% since the first year an individual could file under the statute.
Moreover, recent activity by the EEOC suggests that it would be best if employers begin reviewing their procedures now and taking the necessary steps to ensure they are GINA compliant.
Unknowing or unintentional violations of GINA are perhaps the most worrisome type of violations since they are the most likely to occur. This is particularly true for employers that rely on dated, pre-GINA human resources documents (including employment applications) or employment policies.
Employers should update existing nondiscrimination and anti-harassment policies and handbooks so that discrimination/harassment on the basis of genetic information is clearly prohibited. Similarly, employers should also update their Family Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) forms to include the requisite “safe harbor” language that warns employees and health care providers not to provide genetic information.
Employers also should ensure that an employee’s medical information is maintained separately from the employee’s personnel file, as required by the law.
For further information on GINA and its impact on your business or for assistance on insuring your company is GINA compliant, please do not hesitate to contact our office.
You may be already aware of the continuing escalation of all forms of whistleblower and retaliation claims, including the 20+ Anti-Retaliation laws enforced by special investigators from OSHA’s Whistleblower group.
On one of OSHA’s recent news releases, they state that the Labor Department filed a federal lawsuit against Duane Thomas Marine Construction and its owner Duane Thomas for terminating an employee who reported workplace violence, which is a violation of Section 11© of the OSH Act. OSHA asserts the employer fired an employee for complaining about unsafe work conditions. It may seem a bit unusual to hear that the alleged unsafe conditions involved fear of workplace violence, but who can blame an employee in today’s current environment. However, as it turns out the hazard the employee complained about was the owner!
The employee alleged that, on numerous occasions between 2009 and 2011, Mr. Thomas committed workplace violence and created hostile working conditions. He allegedly behaved abusively, make inappropriate sexual comments and advanced, yelled, screamed, and made physically threatening gestures, in addition to withholding the employee’s paycheck.
The employee, who worked directly for Mr. Thomas, reported to him that he was creating hostile conditions. On Feb 25, 2011, the employee filed a timely whistleblower compliant with OSHA alleging discrimination by Thomas for having reported the conditions to him.
On March 28, Thomas received notification of the complaint filing. Five days later, Thomas had computer passwords changed to deny the employee remote access to files and then terminated the employee. OSHA’s subsequent investigation found merit to the employee’s compliant.
OSHA is seeking back wages, interest, and compensatory and punitive damages, as well as front pay in lieu of reinstatement for the employee. Additionally, OSHA seeks to have the employee’s personnel records expunged with respect to the matters at issue in this case and bar the employer against future violations of the OSH Act. Wow…. but the usual warning: we may not know all of the facts.
The employer may have behaved badly and gave the employee the ability to make out a viable claim. Or, the employee may have exaggerated, or even made up the whole thing. But while most employee lawsuits are notorious for not being completely accurate, there must be at least some pretty bad facts for OSHA to take the action it did.
This atmosphere may or may not have presented a valid safety hazard, but guess what? Under the law, the violation is the act of terminating the employee for complaining about a safety concern. And the catch is…the concern does not have to be valid! Please note there is a different standard if the employee refuses to work because of an unfounded and unreasonable concern.
For all we know, the employee could have annoyed his boss with unfounded complaints until the boss fired him in a moment of anger…but that too is a potential violation.
The take away advice from this scenario is to eliminate two phrases from your vocabulary: “Boys will be boys” and “You had to be there”. The main problem is that lawyers and Uncle Sam will ultimately be there if one’s conduct is foolish enough.
Be sure to train your supervisors to behave professionally regardless of the setting and remind them of the many behaviors, including some of the offbeat ones, that are protected as Whistleblowing.