The final regulations for the Genetic Information Nondiscrimination Act of 2008 (‘GINA”) became effective January 10, 2011. Employers must be careful to comply with these regulations, as the consequences of non-compliance may be severe.

Background
The Genetic Information Nondiscrimination Act of 2008 (“GINA”) was signed into law on May 21, 2008. GINA prohibits employers from discriminating on the basis of genetic information in hiring, termination, personnel actions and compensation decisions. Title II of GINA, which applies to private employers who employ 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year, became effective on November 21, 2009. The regulations implementing Title II became effective on January 10, 2011. In addition to prohibiting discrimination on the basis of genetic information, employers are barred from requesting, requiring, purchasing or disclosing genetic information, subject to a few limited exceptions. If an employer does acquire any genetic information about its employees, the information must be maintained in a confidential medical record file separate from the employee’s personnel file.

Genetic Information Defined
Genetic information under GINA includes any genetic tests of applicants, employees or family members, an employees’ family medical history, requests for or receipt of genetic services and the genetic information of a fetus being carried by an individual or family member. Genetic information does not include sex or age, nor does it include information on race or ethnicity that does not come from a genetic test.

Compliance
There are six exceptions to the general prohibition on requesting, requiring or purchasing genetic information. These include (1) inadvertent acquisition, (2) employer offered health or genetic services, (3) request for family medical history under family leave laws, (4) commercially and publicly available genetic information, (5) genetic monitoring of the effects of workplace toxins, and (6) law enforcement purposes. In applying these exceptions, employers must comply with specific guidelines pertaining to the management and acquisition of genetic information. The key concepts to keep in mind if an employer obtains any genetic information about an employee is that the information is confidential and must be maintained and treated as such. Genetic information in the possession of the employer must not be disclosed to third parties.

An employer does not violate GINA if it inadvertently requests or acquires genetic information. In order to avoid inadvertently acquiring genetic information when making a lawful request for medical information, an employer should provide an affirmative warning in their request indicating that the provider should not include any genetic information in response to the request. The employer should also avoid making inquiries of the employee in a way that is likely to solicit genetic information. One example of this type of inquiry would be if, in response to an employee’s request to take FMLA leave due to cancer, the employer were to ask “Is there a history of cancer in your family?”

The second exception applies to employer offered health or genetic services. If an employer offers services through which they may acquire genetic information, the employer must obtain a knowing, voluntary and written authorization from the employee which provides a description of the type of genetic information requested and its purpose. Additionally, the authorization must describe the restrictions on further disclosure of the genetic information. Moreover, individually identifiable information may only be provided to the health care professionals involved in providing the services, and not to the employer or others in the workplace.

The third exception to GINA’s prohibition on requesting genetic information pertains to requests for family medical history in order to comply with the certification requirements under the FMLA or other state family leave laws. Such laws permit the use of leave to care for a sick family member and require employees to provide information about the health condition of the family member to support the need for leave.

It is also not a violation of GINA for an employer to obtain genetic information from documents that are commercially and publicly available, via hard copy or on the internet. However, an employer cannot actively search for such information, especially from sources with limited access such as social networking sites or medical databases.

Should an employer need to monitor the effects of workplace toxins, genetic information acquired to monitor those effects will not violate GINA so long as the employer complies with certain requirements. The employee must receive written notice of the monitoring and be informed of his/her individual monitoring results. If the monitoring is required by state or federal law, the employer must have obtained a prior knowing, voluntary and written authorization from the employee and the monitoring must comply with the law.

Finally, if an employer conducts DNA analysis for law enforcement purposes as a forensics laboratory or to identify human remains, the employer is permitted to require genetic information only to the extent needed to detect sample contamination.

Every employer needs to be aware of and comply with the requirements of GINA. The remedies available to an employee whose genetic information has been misused can be substantial and include compensatory and punitive damages, attorney’s fees, injunctive relief, back pay and other equitable remedies.

The following is a synopsis of the notable changes in California and federal employment laws that were enacted or modified in 2010.

California LawSB 1340 – Mandatory Organ Donation Leave
Requires private employers to allow employees to take paid leaves of absence for organ and bone marrow donation. Employees who have exhausted all other sick leave are entitled to take up to 30 days of paid leave for organ donation and up to 5 days of paid leave for bone marrow donation. Additionally, employers must restore an employee returning from organ or bone marrow donation leave to the same or an equivalent position as he or she had prior to taking the leave. An employer may not interfere with an employee who desires to take such leave and cannot later retaliate against an employee for doing so.

AB 569 – Meal Period Exemptions for Certain Unionized Industries
Labor Code section 512 requires employers to provide thirty-minute meal periods to employees working more than five hours per work day, unless waived by mutual consent. AB 569 amends section 512 to exempt employees in construction occupations, commercial drivers, security officers, and employees of electrical and gas corporations or local publicly owned electrical utilities from the meal period requirement. This exemption only applies if: 1) the employee is covered by a valid collective bargaining agreement; and 2) the agreement contains specified terms including meal period provisions.

AB 2364 – Unemployment Benefits for Domestic Violence Victims
California law provides unemployment insurance benefits to eligible employees who are unemployed through no fault of their own. Previously, employees were eligible if they left employment to protect their children from domestic violence abuse. AB 2364 amends those provisions to allow employee unemployment eligibility if they leave to protect their family from domestic violence abuse.

AB 1814 – FEHA Does Not Prohibit Adjustments to Retiree Health Benefits
Generally, California’s Fair Employment and Housing Act (FEHA) prohibits discrimination in the terms, conditions and privileges of employment based on age. AB 1814 creates a narrow exception to this rule, specifying that FEHA does not prohibit employers from providing health care reimbursement plans to retired persons that are altered, reduced or eliminated when the retiree becomes eligible for Medicare benefits. This exception only applies to health benefits offered to “retired persons.” AB 1814 essentially conforms California state law to the federal Age Discrimination in Employment Act and is intended to encourage employers to continue to offer modest “bridge” retiree health benefits to retirees before they become eligible for Medicare. AB 1814 applies to all retiree health benefit plans in effect on or after January 1, 2011.

AB 2774 – OSHA “Serious” Violations
Provides that if the California Occupational Safety and Health Administration (Cal/OSHA) can demonstrate that there is a “realistic possibility” that death or serious physical harm could result from an OSHA violation, then a rebuttable presumption that the violation is “serious” will be established. An employer can rebut this presumption by demonstrating that it took reasonable steps prior to the violation and effective action to eliminate employee exposure once the violation occurred. AB 2774 defines “Serious physical harm” as any injury or illness, specific or cumulative, occurring in the place of, or in connection with, employment that results in inpatient hospitalization, the loss of any part of the body, serious permanent disfigurement, or impairment of any part of the body sufficient to cause it to become permanently and significantly reduced in efficiency.

No Increase in Computer Professional Salary for Exemption Purposes
Labor Code section 515.5 provides that if computer software employees perform certain enumerated duties and their hourly pay is not less than the statutorily specified rate, then those employees are exempt from overtime requirements. The Division of Labor Statistics and Research, the agency responsible for determining if adjustments need to be made to this rate, has determined for the second year in a row that the rates will remain unchanged. The minimum hourly rate will remain at $37.94, the minimum monthly salary will remain at $6,587.50, and the minimum annual salary will remain at $79,050.

Federal Law
The Obama Administration primarily focused on contentious issues such as health care, financial reform, and immigration reform; therefore, there were no significant federal labor and employment legislative developments in 2010.

Robert F. Tyler of the firm’s litigation department recently prevailed in a major complex medical malpractice case brought against one of the firm’s longstanding clients. The case involved a 48 year old man who was brought into the client’s hospital with a severe brain bleed after falling as the result of an apparent loss of consciousness. Various tests done shortly after admission disclosed cardiac abnormalities, which were ultimately felt to have been caused by the injuries resulting from the fall, rather than being the cause of the loss of consciousness and fall itself. Twenty months later, the patient died in his sleep.

At the time of his death, the patient was 50 years old and earning between $150,000 and $350,000 per year. Both before and after his hospital stay, the patient never complained of any significant medical problems and never took any sick leave. On autopsy, it was found that he had suffered a major heart attack at some point in the past, and that all of his cardiac arteries were severely clogged, with the cause of death stated as untreated cardiac problems.

The wife and the two minor daughters of the patient brought a wrongful death claim, contending that the events leading up to the fall were caused by cardiac problems, which they claimed should have been found and worked up by the hospital. The plaintiffs contended that had that taken place, the patient’s severe underlying cardiac disease would have been demonstrated, and steps would have been taken to avert the patient’s untimely death.

The trial itself involved 32 witnesses, with strongly conflicting testimony from experts in cardiology, intensive care, neurology, clinical laboratory operations, and emergency room care. Plaintiffs postulated an earnings loss of $3.9 million, and ultimately requested a total award in excess of $11.7 million. After a six week trial, the jury returned a 9-3 verdict in favor of the defense, finding that the defendant hospital had correctly interpreted the abnormalities shown on the test in question as being due to the injury caused by the fall (rather than causing the fall), and that the hospital’s workup of the patient was correct and complete. While those conclusions were and are medically correct, they were complex and were very vigorously contested by well-credentialed experts on both sides. Therefore, the fact that the jury ultimately came to appreciate the defendant’s position despite their obvious sympathy for the plaintiffs, clearly constituted a very successful result for the client.

Wilke Fleury associate Samson R. Elsbernd recently became a member of the District of Columbia Bar.  Mr. Elsbernd was sworn in on December 6, 2010 by a three-judge panel of the District of Columbia Court of Appeals, the highest court in Washington, D.C. Mr. Elsbernd is now eligible to practice before the courts of the District of Columbia, in addition to all California courts and the U.S. Court of Appeals for the Ninth Circuit.

Introduction
The Americans with Disabilities Act of 1990 (ADA) is a civil rights law that was enacted to eliminate discrimination against the disabled. Title III of the ADA pertains to equal access to places of public accommodation, stating: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” The ADA defines “public accommodation” as specifically including the “professional office of a health care provider.” Accordingly, optometry offices are clearly covered by the law. It is important to note that the ADA can implicate not only the owner of the facility or business, but also anyone leasing or operating in the space.

Compliance with the ADA involves, among other things, adherence to a vast array of detailed structural requirements. Unfortunately, some people have seized upon the well-intentioned ADA as a lucrative business opportunity: they scope out businesses for violations – say, a handicapped parking space that is too narrow, or steps with no ramp access – and file a lawsuit. These “career plaintiffs” generally make their money by forcing small businesses – including medical offices – to settle for thousands of dollars, rather than face the expense of a lawsuit. ADA lawsuits are often preceded by a letter informing the business operator of their non-compliance, though plaintiffs are not required to give notice or to allow the facility to cure their violations before filing suit (many who receive these letters dismiss them as bogus or a scam, but they should be taken seriously). Sadly, these predatory tactics force many businesses to shut down if they cannot afford the expense of retrofitting their premises to comply with the ADA.

ADA Requirements
Given the stakes of noncompliance, it is important for every optometrist to become familiar with the ADA. Title III of the ADA outlines three main requirements for places of public accommodation such as an optometrist’s office. First, they must “make reasonable modifications in policies, practices, or procedures” to assure that individuals with disabilities have equal access to services and facilities, unless such modifications would “fundamentally alter” the nature of the optometric service. This requirement is rarely at issue in litigation – most often, a violation of this provision involves a refusal to allow a service animal inside the facility.

Second, optometrists must offer “auxiliary aids and services” to the disabled to ensure they are treated equally and inclusively, unless providing such services would “fundamentally alter” the nature of the service or would create an “undue burden.” Common examples of auxiliary aids and services include providing sign language interpreters, assistive listening headsets, television captioning, telecommunication devices for the deaf (TDD’s), and videotext displays. Optometrists need not provide the auxiliary aid or service requested by the patient, or even the most effective one – they simply must provide an aid or service that allows the patient an equal opportunity to obtain the same results as a non-disabled patient. Optometrists should consult with any disabled patient before his or her visit to determine what is a necessary accommodation.

Third, optometrists must “remove architectural barriers, and communication barriers that are structural in nature,” from facilities constructed before 1993 “where such removal is readily achievable.” (Buildings constructed in 1993 or later must fully comply with the ADA Accessibility Guidelines, or ADAAG.) This requirement is often the most cumbersome because it can involve costly retrofitting projects, such as installing wheelchair ramps, making curb cuts at sidewalks and entrances, and widening doorways. If making these changes is not readily achievable, optometrists must provide alternative measures, such as retrieving merchandise from inaccessible shelves, or relocating activities to an accessible location. Whether a removal of barriers is “readily achievable” is based on a variety of factors, including the cost of the removal and the financial status of the facility involved. However, only a court can ultimately determine whether the removal is readily achievable or not – and by that point, any defendant will have spent large sums on legal fees.

Finally, some ADA requirements are specific to professional offices of health care providers. Most notably, any building with two stories or more must have an elevator (other places of public accommodation need only have an elevator if the building is three stories or more). Optometrists should also be aware that making significant alterations or renovations to a facility may trigger additional responsibilities, as outlined in the ADAAG. Although compliance with all of these requirements may be expensive, the government offers some relief in the form of tax incentives to offset costs.

Recommendations
For existing facilities – especially those built before 1992 – it is important to assess whether the building is ADA compliant. If possible, it’s a good idea to hire an ADA compliance consultant, such as a Certified Access Specialist (CASp), or an attorney familiar with ADA requirements to perform an audit of the facility. Another option might be to consult with disability rights organizations to help identify any problematic structural barriers. When undertaking any improvements, it is best to prioritize tasks from the perimeter inwards – i.e., ensure access to the facility from sidewalks, parking structures, and public transit stops first, then access into the building itself, and finally internal facilities such as public restrooms, phones, and drinking fountains. This approach will help minimize the premises’ vulnerability to “drive-by” career plaintiffs. Finally, be sure to document any access improvement plans for use in any actual or threatened litigation in the future.

When constructing new facilities (or making significant renovations to existing ones), be sure to select an architect who has expertise in ADA compliance. The ADAAG also offers detailed information on all of the ADA structural requirements, as well as technical standards specific to medical care facilities.

Finally, since compliance with the ADA is an ongoing obligation, it is essential to establish procedures for ongoing compliance assessments. Being proactive in this regard is both a good business practice and a benefit to the disabled community and the community at large.

ADA Resources

• ADA Accessibility Guidelines for Buildings and Facilities (ADAAG): Available at http://www.access-board.gov/adaag/
• ADA Guide for Small Businesses (published by the Department of Justice, or DOJ): Available at http://www.ada.gov/smbusgd.pdf
• ADA Standards for Accessible Design (published by the DOJ): Available at http://www.ada.gov/regs2010/2010ADAStandards/2010ADAStandards_prt.pdf
• List of Certified Access Specialists (CASp’s), provided by the Division of State Architect: Available at https://www.apps.dgs.ca.gov/casp/casp_certified_list.aspx
• ADA Best Practices Tool Kit for State and Local Governments (published by the DOJ): Available at http://www.ada.gov/pcatoolkit/toolkitmain.htm
• ADA Title III Highlights (published by the DOJ): Available at http://www.ada.gov/t3hilght.htm
• The DOJ’s ADA Information Line: (800) 514-0301 (voice); (800) 514-0383 (TDD)