New federal laws protect genetic privacy and employee disabilities

With the advent of recent federal legislation, employers should be doubly careful to understand and follow two key provisions that relate to their employees' health. The first expands the definition of a disability under the federal Americans with Disabilities Act, and the second protects information about employees' genetic history.

Both laws provide greater protection for employees — which also translates into important additional responsibilities for the employer, according to Wayne Landsverk, a partner who specializes in labor and employment law at Miller Nash, a law firm based in Portland, Ore.

Americans with Disabilities Act
The Americans with Disabilities Act, or ADA, was amended in January 2009 by the ADA Amendments Act to broaden the definition of what constitutes a covered disability.

The U.S. Supreme Court previously issued opinions stating that, to be covered, the disability must “prevent or severely restrict one or more major life activities,” says Landsverk. The newly expanded definition rejects that position and says that the amended act “shall be construed in favor of broad coverage of individuals.”

“Under the previous definition of a qualified disability, it was very hard as an employee to establish that you're disabled,” he said. “But under the new provision, more and more people will likely be considered to be disabled.”

Landsverk advises that, in most situations, it's better for an employer to try and reasonably accommodate an employee who claims to have a disability. Employers also should review their written job descriptions to better define an essential function versus a marginal one, he says.
Genetic Information Nondiscrimination Act
Although Oregon has had genetic privacy laws for several years, a new federal statute — called the Genetic Information Nondiscrimination Act, or GINA — protects employees' genetic privacy on a federal level and also adds one additional element to Oregon's law, said Landsverk.

In Oregon and now federally, employers aren't allowed to ask questions about an employee's genetic history, such as whether certain diseases or risk factors run in his or her family. And if you happen to hear about an employee's family history — such as around the proverbial water cooler, as part of an employee's request for medical or family leave, or even if the employee mentions it — you're obligated to take steps to protect that information and treat it as private, according to the provisions of GINA.

Landsverk says the new twist for Oregon is that GINA also applies to post-offer inquiries. That means employers that require a physical exam after an offer has been made can no longer include questions about family medical history. “That's the main trap for the unwary,” he said. “You can no longer ask those questions, so it's important to be aware of that and comply with it.”

What these changes mean to you

Overall — whether it's genetic privacy, disability claims or civil rights in the workplace — Landsverk predicts a greater presence from the federal agency that provides enforcement, the Employment and Equal Opportunity Commission (EEOC).

“EEOC is really beefing up in terms of enforcement. The agency recently was given more funding, and they're going to have more boots on the ground,” he said. “I think we're going to see an increase in EEOC charges and investigations.”

Wayne Landsverk is a partner with Miller Nash, a prominent law firm based in Portland, Ore., with offices throughout the Pacific Northwest. The firm specializes in business, litigation, health care, and employment and labor law; has nearly 130 attorneys on staff; and is a new client of Providence Health Plans.