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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 that affects your ability to perform your essential job functions.  Please note that 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 an individual or family member of the individual, except as specifically allowed

Think Your PTO Policy Complies With the Chicago or Cook County Paid Sick Leave Ordinances? Think Again.

The City of Chicago’s (the “City’s”) and Cook County’s (the “County’s”) paid sick leave (“PSL”) Ordinances took effect on July 1, 2017, generally requiring employers to provide employees in Chicago and non-opt out locations in Cook County with 40 hours of PSL per year, plus additional PSL for employers/employees covered by the U.S. Family and Medical Leave Act (“FMLA”). Based on “safe harbor” provisions in both Ordinances, many employers are assuming that their Paid Time Off (“PTO”) policies are sufficient – as written – to comply with these new PSL obligations. However, a careful reading of the Ordinances and their respective rules (“Rules”) leads to the inescapable conclusion that almost no traditional PTO policy satisfies the Ordinances’ burdensome and somewhat complex requirements.

Safe Harbor Provisions

Both Ordinances contain a “safe harbor” provision that essentially says that if the employer grants paid time off to employees in an amount and manner that meets the requirements for PSL under the Ordinance, the employer is not required to provide additional paid leave. The final Rules adopted by the City and the County include additional guidance with respect to this issue:

Chicago Safe Harbor Rule, MW 3.01

The Paid Sick Leave portion of the Ordinance has three main categories which must be complied with: (1) accrual / grant of hours of Paid Sick Leave; (2) carryover of Paid Sick Leave from one year to the next; and (3) usage of Paid Sick Leave. Grant of sufficient hours may exempt an Employer from carryover as

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 sex,” provided the employer shows its use of prior salary is reasonable and effectuates a business policy.

The Ninth Circuit’s decision highlights a split of authority in the rapidly evolving landscape of equal-pay law in the United States.

  • Federal circuit courts are split on the issue of whether prior

“Male, Female, A Combination of Male and Female, Neither Male Nor Female”… New California Regulations Regarding Transgender Identity and Expression

Effective July 1, 2017, there are new regulations adopted by California’s Fair Employment and Housing Authority which significantly expand protections against discrimination for the transgendered.

Broader Definitions

The regulations expand the meaning of “gender identity” to include an individual’s “internal understanding” of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.  Similarly, the definition of “sex” is expanded to include “perception by third-party of any of the aforementioned” and the term “sex stereotype” is expanded to include “gender roles, gender expression or gender identity.”  Additionally, a new definition of “transitioning” is included to mean the “process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth.  This process may include, but is not limited to, changes in name and pronoun usage, facility usage, participation in employer-sponsored activities (e.g., sports teams, teambuilding projects or volunteering), while undergoing hormone therapy, surgeries or other medical procedures.”

Defenses

The regulations enumerate a number of defenses based on a bona fide occupational qualification (“BFOG”) but go on to specify various situations which will not justify the application of the BFOQ defense including, by way of example, “the fact that an individual is transgender or gender nonconforming, or that the individual sex assigned at birth is different from the sex required for the job.”

Religion in the Workplace in France

June 28, 2017

Categories

PART 1 of 2

Employers and employees seem to be increasingly confronted with the issue of religion in the workplace. Is it just a feeling or a reality?

The upsurge of religion in the workplace is an indisputable reality but its importance must be mitigated. Religion is not the subject of mass disputes and the incidence of such cases is still very minor (3% of all claims submitted to the “Defender of Rights” (“Défenseur des droits”) compared to 17% regarding health and welfare for example).

Is there a legal framework to regulate this phenomenon and, if so, is it sufficient?

There is an existing legal framework but it is difficult to adapt it to diverse situations and it cannot, in any case, resolve all disputes.

On an individual level, employees are protected by the recognition of religious freedom and the subsequent prohibition of any discrimination in this respect. This protection stems both from the national legal texts (Preamble of the French Constitution of 27 October 1946 and 4 October 1958, Articles L.1121-1 and L.1321-3 of the French Labor Code) and also from European regulations (European Convention for the Protection of Human Rights, EU Equal Treatment Directive 2000/78 of 27 November 2000) and international law (Universal Declaration of Human Rights, United Nations Convention and Covenant).

On a collective level, the employer is the guarantor of the proper organization of the company. The law grants the employer a “management authority” (“pouvoir de direction”), which may also become a disciplinary authority if it

Supreme Court Will Review Scope of Dodd-Frank Whistleblower Protections for Internal Reports

Bryan Cave’s White Collar Defense and Investigations practice recently published a Client Alert regarding the Supreme Court’s decision to review the scope of the Dodd-Frank whistleblower protections of employees who blow the whistle on their employers by reporting alleged misconduct internally rather than to the SEC.

Follow the link below to read more.

https://www.bryancave.com/en/thought-leadership/supreme-court-will-review-scope-of-dodd-frank-whistleblower.html

 

New York City Follows Trend in Predictable Scheduling Law

New York City Follows Trend in Predictable Scheduling Law

June 27, 2017

Authored by: BCLP at Work

Bryan Cave’s Retail practice recently published a Client Alert: New York City Follows Trend in Predictable Scheduling Law.  The Alert highlights New York City’s new scheduling law for retail employers and discusses the impact of similar laws in other major cities. Follow the link below to read more.

https://www.bryancave.com/en/thought-leadership/new-york-city-follows-trend-in-predictable-scheduling-law.html

 

Minimum Wage Increases on the Horizon in California

Effective July 1, 2017, employers in San Francisco must raise the minimum wage from $13.00/hour to $14.00/hour.  By July 1, 2018, San Francisco’s minimum wage rate will be $15.00/hour.  Similarly, in the city of Los Angeles and the unincorporated areas of Los Angeles County, for employers with more than 25 employees, the minimum wage will be increased from $10.50/hour to $12.00/hour.  These minimum wage rates are currently higher than the State of California’s minimum wage rate of $10.50/hour for employers with more than 25 employees.  California will gradually increase minimum wage rates for employers with more than 25 employees, adding $1 to the base rate every January 1st culminating in $15.00/hour by January 1, 2022.

Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers assess their minimum wage obligations. If you or your organization would like more information on wages or any other employment issue, please contact an attorney in the Labor and Employment practice group.

Arizona Mandatory Paid Sick Leave Update: Can We Use Our Old PTO System?

As Arizona employers prepare for the imminent July 1 effective date of Arizona’s first mandatory paid sick time law (The Fair Wages and Healthy Families Act (the “Act”)), one of  the questions that we get most frequently is, “If we have a Paid Time Off policy, do we need to have a separate policy for paid sick time?”

Read our recent Client Alert here: Arizona Mandatory Paid Sick Leave Update

Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers assess their sick time obligations. If you or your organization would like more information on compliance with sick time laws, please contact an attorney in the Labor and Employment practice group.

Paid Sick Leave Laws – City of Chicago and Cook County, Illinois

The City of Chicago and Cook County have each passed “Paid Sick Leave” ordinances that go into effect July 1, 2017.  See https://www.bryancave.com/en/thought-leadership/new-leave-laws-in-illinois.html

Employers with employees in Chicago (but not other parts of Cook County) need only comply with the City of Chicago ordinance.  Employers with employees in Cook County municipalities other than Chicago need only comply with the Cook County ordinance, although certain Cook County municipalities have opted out of the Cook County ordinance (see list below of municipalities that have NOT opted out).  Employers with locations and employees in both Chicago and other Cook County municipalities would need to comply with both ordinances as applicable to specific employees.

We have been monitoring the ordinances for some time, but there has been a delay in the finalization of the interpretative rules by Cook County and the City of Chicago.  Cook County recently finalized its regulations (which are 46 pages long and more complex than anticipated), but the City of Chicago has not. We expect the City of Chicago to issue final rules within the next week.

Cook County Municipalities That Have NOT Opted Out Barrington Hills (partly in Kane, Lake, and McHenry Counties) Bensenville (partly in DuPage County) Berwyn Blue Island Broadview Brookfield Burnham Calumet City Calumet Park Chicago Heights Chicago Ridge Cicero Country Club Hills Countryside Deer Park (partly in Lake County) Deerfield (partly in Lake County) Des Plaines Dixmoor Dolton East Dundee (partly in Kane County) Elmhurst (partly in DuPage County) Evanston Flossmoor Ford Heights Forest

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