Expanded FMLA Leave for Military Families

On October 28, 2009, President Obama signed into law the 2010 National Defense Authorization Act (H.R. 2647). The new law includes an expansion of the recently-enacted exigency and caregiver leave provisions for military families under the Family and Medical Leave Act of 1993 (FMLA).

H.R. 2647 expands exigency leave benefits to include family members of active duty service members “in a foreign country.” Under prior law, only family members of National Guard and Reservists were eligible for “exigency leave” when called to active duty “in support of a contingency operation.”

H.R. 2647 also expands the caregiver leave provision to include veterans who are undergoing medical treatment, recuperation or therapy for serious injury or illness that occurred any time during the five years preceding the date of treatment. Previously, military caregiver leave was available only to care for injured family members who were still in the military. Military caregiver leave will also now be allowed when the family member suffered from a preexisting serious injury or illness that was aggravated by his or her active duty service in the military.

These provisions are effective immediately. We recommend that all employers promptly notify employees of these changes and update their FMLA policies to include these new legal requirements under FMLA.

Genetic Information Nondiscrimination Act

The Genetic Information Nondiscrimination Act (GINA) takes effect November 21, 2009. It protects applicants and employees from discrimination based on genetic information in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. It also restricts employers’ acquisition of genetic information and strictly limits disclosure of genetic information. Genetic information includes information about genetic tests of applicants, employees, or their family members; the manifestation of diseases in family members (family medical history), and requests for or receipt of genetic services by applicants, employees, or their family members. Thus, GINA is far broader than protecting against genetic testing, and inappropriate questioning about family medical history can violate this new law.

If you have an employee wellness program, you need to make sure that you are not violating GINA. You can obtain guidance on how to comply with GINA’s various requirements from the EEOC’s website www.eeoc.gov, which contains the agency’s proposed regulations.

Also, employers are required to post a new GINA nondiscrimination poster by November 21, 2009. If your poster vendor has not supplied you with a copy, you can find one on the EEOC’s website.

Employers should review their record keeping procedures to make sure they are not improperly gathering genetic information, including family medical histories, In addition, employers should update their EEO policies to reflect they prohibit discrimination based on genetic information.

Swine Flu (H1N1 Virus) Guidance

On October 15, 2009, the Congressional Research Service (CRS) issued a report on The Americans with Disabilities Act (ADA) Employment Issues and the 2009 Influenza Pandemic (i.e., Swine Flu/H1N1 Virus). CRS acknowledged that applying the ADA to swine flu involved proceeding in “uncharted waters” but nevertheless offered some guidance to employers. And while persons with swine flu generally would not be considered disabled under the ADA, the EEOC has indicated that if the disease were to become more severe, an infected individual could be considered disabled under the act.

The ADA contains limits on disability related inquiries and medical examinations. The EEOC issued guidance on its website on October 5, 2009 relating to the ADA and the H1N1 virus, including guidance as to which inquiries and what medical examinations are proper and under what circumstances. For example, asking employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat is legal. It is also legal to ask an employee why he or she has been absent from work if the employer suspects it is for a medical reason.

Similarly, it is lawful to send employees home from work if they display influenza-like symptoms during a pandemic. However, the EEOC has opined that it would not be proper to take employees temperatures to determine if they have a fever unless the pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC. Moreover, the EEOC has advised that it would be unlawful under the ADA to ask employees who do not have influenza symptoms to disclose whether they have a medical condition that could make them especially vulnerable to influenza complications.

We generally recommend that employers consider following the recommendations of the EEOC, CDC and local health authorities. The CDC’s recommendations are available on its website at www.cdc.gov/h1n1flu/business/guidance. These recommendations continue to be updated by the CDC.