1. FOULSTON SIEFKIN’S SEVENTH ANNUAL EMPLOYMENT LAW UPDATE ASSOCIATION OF CORPORATE COUNSEL, MID-AMERICA CHAPTER Vaughn Burkholder Tara Eberline March 14, 2012

2. AGENDA Genetic Information Nondiscrimination Act The basics Legal and illegal requests for genetic information Legal and illegal disclosures of genetic information Increased Government Scrutiny Retaliation claims Misclassification of employees as independent contractors

3. Pop Quiz Betty and her mother’s obituary HR Director, Ron Brown, learns that employee Betty’s mother passed away from cancer. Ron cuts out obituary from a newspaper that he gets at home and circulates amongst employees. Ron cuts out the obituary from the same newspaper at work, which his employer purchased, and circulates amongst employees. Can he circulate in either case? What if he actively listens to a conversation in the hallway between others about Betty’s mother’s cancer? What if he asks if cancer runs in Betty’s family?

4. GINA – enacted to prevent discrimination based on genetic information (“G.I.”) 42 U.S.C. § 2000ff 29 C.F.R. §1635.10(c) Kansas has a similar, shorter statute K.S.A. § 44-1009(a)(9)(A) and (B) GENETIC INFORMATION NONDISCRIMINATION ACT OF 2008 (GINA)

5. GINA: The Basics Passed in May of 2008 Took effect on November 21, 2009 Final regulations issued on November 9, 2010 Record-keeping requirements implemented February 3, 2012 (generally 1 year, same as Title VII)

6. GINA Basics - continued Commonly referred to as “GINA” We prefer: “YGTBKMA” Prohibits use of G.I. in employment decisions May not refuse to hire, discharge, or otherwise discriminate against any employee because of G.I., Limit training opportunities because of G.I., or Limit, segregate, or classify employees in a way that would adversely affect the employee because of G.I. Restricts employers from requesting, requiring, or purchasing G.I.

7. GINA Basics - continued Requires confidential handling of G.I. Requires preservation of records Provides legal remedies for violations Harassment Retaliation Attorney’s Fees EEOC oversees enforcement of GINA

8. GINA Basics - continued Coverage if 15 or more employees (like Title VII) “Employee” includes applicants and former employees “Family member” includes: Dependents (even by marriage or adoption) Up to fourth-degree relatives (great-great- grandparents, first cousins once removed)

9. What is Genetic Information? Genetic tests of the employee or family; Family medical history (the manifestation of a disease or disorder in family members of the employee); Participation in genetic services (e.g., genetic counseling); and Genetic information of a fetus of the employee or family member, including an embryo legally held by either. Sex or age of individual is not G.I.

10. Does GINA Cover Employees’ Medical Information? Medical information of employee is not genetic information even if: it is information that depicts a manifested disease, disorder, or pathological condition, even if that condition has a genetic basis.

11. What is Genetic Testing? Tests to determine whether individual has genetic variant. Test for alcohol/drug use is not a genetic test, but test for predisposition to drug /alcohol use is. Cholesterol, HIV tests are not genetic tests.

12. Cause of Action: Requesting G.I. from Employees It is unlawful (and actionable) for employer to “request, require, or purchase” employee’s or family member’s G.I. “Request” includes: Searching internet in a way that is likely to result in employer obtaining G.I.; Actively listening to third-party conversations; Searching an individual’s personal effects for the purpose of obtaining G.I.; and Requesting information about an individual’s current health status in a way that is likely to result in employer obtaining G.I.

13. 4 (primary) legal ways to acquire G.I. 1.G.I. is disclosed through lawful medical requests (including ADA, FMLA disclosures); 2.Employer inadvertently acquires employee’s family medical history; 3.G.I. is disclosed through wellness program; and 4.Employer purchases documents commercially and publicly available including newspapers and internet. BUT no exception for: Medical databases, court records Sources with limited access (including some social networking sites) Publicly available info if employer was looking for G.I.

14. Lawful Medical Requests under GINA Requests for info related to a request for reasonable accommodation Only when need for accommodation is not obvious, and Request for information not overbroad Otherwise lawful ADA requests (job related, supported by medical necessity)

15. Lawful Medical Requests under GINA, continued Requests authorized or permitted by federal, state, or local law such as the FMLA. Family members who are also employees of same employer. Family members receiving health or genetic services on a voluntary basis.

16. How to make “GINA-proof” requests to health care providers Specifically direct health care providers in writing not to provide G.I. Acquisition of G.I. is only inadvertent if health care provider is specifically told to omit G.I. Use safe harbor language (see attachment).

17. Application of GINA to medical exams related to employment GINA applies to post-hire, pre-employment exams. Employer must tell health care provider not to collect G.I., including family medical history. Employer must take “reasonable measures” to stop if it learns that G.I. is requested/required. This includes not using doctor who continues to request or require G.I. Use safe harbor.

18. Acquisition through medical request not inadvertent unless d octor told not to provide G.I. SO REMEMBER...

19. What are inadvertent acquisitions of G.I.? Disclosures by medical personnel if employer used safe harbor language. Unsolicited disclosures from employees. Learning G.I. through social media, if the employer had been granted access to the profile. Same inadvertent/no probing rule applies.

20. Inadvertent acquisitions of G.I.: Water cooler talk “Water cooler talk”: Inadvertent if supervisor overhears conversation between employees disclosing G.I. But, no follow-up questions allowed! OK: “How are you?” “Did they catch it early?” Not OK: “Do any of your family members have it, too?” “Have you been tested?”

21. G.I. disclosed by employee through wellness programs Must get prior, knowing, voluntary, and written authorization from the employee to obtain G.I.; Only the employee (or family member) and the health care professional/genetic counselor can see G.I.; and G.I. not disclosed to employer except in “aggregate terms” that do not identify specific employee.

22. Unlawful Disclosure: maintaining the confidentiality of G.I. Keep G.I. in separate files and treat as a confidential medical record (like ADA); May maintain G.I. in same file that is used to hold medical records (not the employee’s personnel file). G.I. that is in personnel file prior to November 21, 2009 need not be removed from personnel file, but remember the ADA. Non-disclosure, nondiscrimination still applies.

23. Lawful Disclosure: When (and to whom) can an employer disclose G.I.? Employer may only disclose G.I.: to employee (or family member if family member is receiving genetic services) at the written request of the employee; in response to court order; to government officials investigating compliance with GINA if information is relevant to investigation; or Other limited exceptions (see regulation).

24. May only give out G.I. that is expressly authorized by the court order. Response must be tailored to the specific request. Must notify the employee (if the court order was secured without notifying the employee) and tell employee what G.I. was given out. General discovery request for employee records is NOT sufficient. How do we respond to a subpoena or court order for records?

25. Back to the pop quiz: Betty’s Mom’s Obituary Okay for Ron to bring obituary from personal newspaper to work? Statute: No. Statute refers to publicly accessible documents purchased by employer. Regulation: Yes. Doesn’t specify documents must be purchased by employer.

26. Back to the pop quiz: Betty’s Mom’s Obituary Okay for Ron to have obituary from work newspaper? Statute: Yes. Lawful for employer to purchase G.I. if found in document that is commercially and publicly available. Regulation: Yes. If employer gets G.I. from commercially and publicly available source, it is not considered confidential G.I.

27. Back to the pop quiz: Betty’s Mom’s Obituary Okay for Ron to distribute obituary at work (from either home or work newspaper)? Statute: No. Regulation: If employer gets G.I. from commercially and publicly available source, it is not considered confidential G.I., so arguably could distribute. Statute or regulation control? What if Ron checked the obits because he was trying to figure out why Betty’s mom died?

28. Back to the pop quiz: Betty’s Mom’s Obituary Ron learns of Betty’s Mom’s passing from cancer by overhearing conversation in hallway. Violation? No (water cooler talk). But, Ron cannot then ask Betty if she’s been tested for same cancer.

29. Increased Government Scrutiny Workplace Retaliation Independent Contractor Relationships

30. Vaughn Burkholder: burkholder@foulston.com Tara Eberline: teberline@foulston.com Foulston Siefkin LLP