Genetic Information Nondiscrimination Act
On May 21, 2008 President Bush signed into law the Genetic Information Nondiscrimination Act (GINA) which prohibits employers from discriminating against applicants and employees on the basic of genetic tests and genetic information. The new law also prohibits health insurers from restricting enrollment and making premium adjustments on the basis of genetic information or use of genetic services.
The law, which is not effective until 18 months after enactment, requires the U.S. Equal Employment Opportunity Commission (EEOC) to issue final regulations within one year after enactment.
There is little evidence of actual employment discrimination on the basis of genetic information. However, proponents of the law believe that many individuals decline to take genetic tests that could determine a propensity for developing a genetic-based disease or condition, or to engage in testing for purposes of diagnosis, treatment and possible cure.
Under the new law, “genetic information” means (a) an individual’s own genetic tests, (b) the genetic tests of family members, and (c) the manifestation of a disease or disorder in family members. Collecting such information is prohibited unless it is inadvertently received or is acquired by permissible means, such as in a health care certification under the Family and Medical Leave Act. Even then, however, the information cannot be used for prohibited employment purposes.
Effective January 28, 2008, the Family and Medical Leave Act of 1993 (FMLA) was amended to permit a "spouse, son, daughter, parent, or next
FMLA Expanded
Effective January 28, 2008, the Family and Medical Leave Act of 1993 (FMLA) was amended to provide for new "active duty leave" and "military caregiver leave."
"Active duty leave" permits eligible employees with a spouse, child, or parent who is on armed forces active duty, or has been notified of an impending call or order to active duty, to take up to 12 weeks of unpaid leave due to a “qualifying exigency.” “Qualifying exigency” is not defined in the law as passed by Congress. This definition has been left to the Department of Labor (DOL), which has yet to issue regulations on it. However, examples of “qualifying exigency” offered by the DOL in its Notice of Proposed Rulemaking include:
- Making arrangements for childcare required due to the service member’s absence.
- Making financial and legal arrangements to address the service member’s absence.
- Attending counseling related to the service member’s active duty.
- Attending official ceremonies or programs where the military requests participation of the family member.
- Attending to farewell or arrival arrangements for the service member.
- Attending affairs caused by the missing status or death of the service member.
According to the DOL website, military caregiver leave does not officially go into effect until the DOL issues regulations defining “qualifying exigency.” However, the DOL encourages employers to provide this type of leave to qualifying employees immediately. Regulations defining the term “qualifying exigency” are currently under review, and should be issued in the next few months.
"Military caregiver leave" permits eligible employees who are the spouse, child, parent, or “nearest blood relative” of a service member who has incurred a “serious illness or injury” while on active duty to take up to 26 weeks of unpaid leave in a single 12-month period to care for the injured service member (in contrast to 12 weeks for a non-service serious health condition of a family member). The definition of “a serious illness or injury” under the caregiver provision is much broader than the definition of “serious health condition” under the FMLA. “Serious injury or illness” is defined as one incurred in the line of active duty that renders the service person medically unfit to perform the duties of his/her office, grade, rank, or rating.
Revised I-9 Form
As of December 26, 2007, the United States Customs and Immigration Service (formerly INS) requires use of a revised Employment Eligibility Verification Form (I-9), available for download at www.uscis.gov/files/form/I-9.pdf. It is a federal requirement that US employers complete an I-9 form for all employees within the first three days of employment, and retain the form for one year after termination of employment or three years, whichever is longer. The list of acceptable documents has changed, with some documents removed from the lists and some new documents added. If you’re not sure what these documents should look like, go to the newly revised Handbook for Employers, which is posted at www.uscis.gov/files/nativedocuments/m-274.pdf.
New Hire Reporting
For some time all Texas employers have been required to report their new hires to the Attorney General of Texas to assist in the collection of child support payments from workers and to help the state identify unemployment insurance fraud caused by a claimant’s working but not reporting earnings. Effective September 1, 2007, there is a penalty associated with a failure to report new or newly-rehired employees. See www.oag.state.tx.us and look in the “Site Index” for “New Hire Program.”
