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ADA Tip: Remember To Include GINA Safe Harbor Language When Requesting Medical Information For Purposes Of Evaluating An Accommodation Request

Although employers are generally prohibited from obtaining medical information about their employees, they are permitted to do so in certain circumstances, including when such information is necessary to evaluate a job applicant’s or employee’s request for an accommodation under the Americans with Disabilities Act (ADA).

When obtaining medical information as part of the ADA interactive process, however, employers must keep in mind the provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA).  Specifically, GINA protects applicants and employees from discrimination on the basis of genetic information and prohibits covered employers from using genetic information when making decisions about employment.  Accordingly, GINA generally restricts employers from requesting genetic information, unless one of six narrow exceptions applies.

Importantly, intent is not a required element for a GINA violation.  That is, an employer can be found in violation of GINA if the employer obtains genetic information despite not requesting or having any intent to receive such information.

Fortunately, “safe harbor” language can be used to protect an employer against an inadvertent GINA violation.  The following language should be included in any communications in which medical information is requested:

Note:  The information we are seeking relates only to any condition you may have

The Prior-Salary Defense and the Evolving Landscape of Pay Equity Law

The Equal Pay Act (“EPA”) requires payment of equal wages to employees of the opposite sex who perform equal work but recognizes four statutory defenses to a claim for pay discrimination. The last of those defenses is a “catch-all,” which covers pay differences “based on any other factor other than sex.” Breaking with the EEOC’s long-standing interpretation of this defense, the Ninth Circuit Court of Appeals recently held that an employer may rely on an employee’s prior salary to justify a wage differential between men and women performing the same job.

In Rizo v. Yovino, 854 F.3d 1161 (9th Cir. 2017), the defendant employer conceded that it paid the plaintiff less than her male colleagues for the same work but countered that the law permitted its wage practice because it was “based on any other factor other than sex” – namely, each employee’s prior salary. The district court ruled that prior salary alone would not suffice as a “factor other than sex” under the EPA because a pay structure based solely on salary history would simply perpetuate a discriminatory wage disparity between men and women. The Ninth Circuit reversed, concluding that prior salary could qualify as a “factor other than

Employers May Substantially Reduce Their Potential Exposure for Employment-Related Lawsuits with a Simple Modification to Their Employment Applications

June 12, 2017

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Employers go to great lengths and expense to reduce their potential exposure to employment-related claims.  Most employers implement employment policies to address the ever-growing myriad of federal, state, and local employment laws, regularly conduct employee EEO training, hire qualified human resources professionals and in-house attorneys with expertise in employment law, and regularly seek advice and assistance from outside counsel concerning these prophylactic measures.  The article addresses a fast, simple, and inexpensive way to substantially reduce exposure to certain types of employment-related claims through the inclusion of an express waiver (“Waiver”) in a form employment application or other document signed by applicants or employees.  The Waiver contractually reduces to six (6) months the time period within which certain types of employment-related claims must be filed and waives any statute of limitations to the contrary, thereby significantly reducing the number of timely-filed claims and, consequently, the employer’s potential exposure.  Although waivers can vary by jurisdiction, the following include example of things to bear in mind.

Which Claims Should Be Included in the Waiver?

The employment-related claims that subject employers to the most potential exposure are those that carry lengthy limitations periods and no damages caps.  For example, 42 U.S.C. § 1981 (“Section 1981”),

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