Congress Expands Scope of Federal Employment Discrimination Law with Passage of Genetic Information Nondiscrimination Act
On May 1, 2008, the U.S. House of Representatives approved legislation that will outlaw genetic discrimination in the workplace. The Genetic Information Nondiscrimination Act (the "Act") was sent to President Bush, who is expected to sign the legislation into law shortly. The Act is a notable expansion of federal anti-discrimination law, and in the wake of this new law, employers should carefully review their policies and practices to ensure that they are not at risk of violating the Act. Notably, the Act will not affect any of the 34 states' laws that currently prohibit genetic discrimination in the workplace.
The Act prohibits employers from discriminating against employees or applicants on the basis of genetic information in hiring and firing, compensation, and other personnel decisions and processes. "Genetic information" is defined to mean information about an individual's genetic tests, the genetic tests of an individual's family member or the manifestation of a disease or disorder in family members of the individual, but specifically excludes information about the age or sex of an individual.
The Act also prohibits employers from requesting, requiring or purchasing genetic information of employees or applicants with certain narrow exceptions, including where genetic information is needed to comply with the certification requirements of the Family and Medical Leave Act of 1993 (FMLA) or state family and medical leave laws, or for the monitoring of the biological effects of toxic substances in the workplace. Moreover, any genetic information possessed by employers must be treated as a confidential medical record of the employee and must be maintained on separate forms and in separate files from other information about the employee. The information may be disclosed only to the employee or under other limited circumstances, such as in response to a court order.
The Act applies to employers covered under Title VII of the Civil Rights Act of 1964 ("Title VII") - for private employers, those with 15 or more employees - and will be enforced by the Equal Employment Opportunity Commission ("EEOC"). In addition, the enforcement provisions of Title VII will apply to violations of the Act. An employee alleging a violation of the Act must first file a charge of discrimination with the EEOC and exhaust his or her administrative remedies before filing suit. Finally, the Act prohibits group health plans and health insurance issuers from discriminating against individuals based on genetic information, including with regard to enrollment restrictions and premium adjustments, and prohibits health plans and insurers from requesting or requiring that an individual take a genetic test.
New Jersey's New Family Leave Law Extends Paid Family Leave Benefits to Childbirth, Adoption and Family Medical Emergencies
On May 2, 2008, New Jersey Governor Jon S. Corzine signed hotly contested employee leave legislation that grants employees up to six weeks of paid leave of absence during any 12-month period for certain family and medical events. New Jersey now joins the ranks of California and Washington, the only other states to implement paid family leave legislation.
The new legislation amends the New Jersey Temporary Disability Benefits Law, which already permits paid temporary disability leave in the event of an employee's own non-work related injury or illness. The amended law affords paid leave rights in the following circumstances where family members are in need of care: (1) for the birth of a newborn or the adoption of a child within the first 12 months after the birth or adoption, and (2) for a child, spouse, parent, domestic partner or civil union partner with a serious health condition.
Under the new family temporary disability leave law, employees will be eligible to receive up to two-thirds of their pay with a maximum benefit of $524 per week for up to six weeks. The benefits will be funded by employee contributions through payroll deductions. The estimated employee cost will be approximately $25 in 2009, and approximately $33 per year starting in 2010. Employees will be subject to the additional tax withholdings commencing January 1, 2009, but will not be eligible for benefits until July 1, 2009. Benefits will generally be provided through the state's disability benefits program; however, employers have the option of offering paid family leave through a private plan instead of the state plan. Employees who qualify for benefits under an employer's private plan will be entitled to leave under the new law only to the extent the employer's private plan does not provide the full six weeks of leave.
An employee must provide at least 30 days' notice for leave related to the birth or adoption of a child. For leave to care for a family member's serious health condition, the employee must provide reasonable notice (except for emergencies), make a reasonable effort to schedule leave in a non-disruptive manner and provide medical certification information of the family member's condition. Employees may be permitted to take intermittent leave for a family member's serious health condition. Employees are not permitted to take intermittent leave for the birth or adoption of a child; such leave must be taken consecutively unless the employer has agreed to another arrangement.
Notably, employers with less than 50 employees are not required by the new family temporary disability leave law to reinstate employees to their former or similar positions upon their return from family temporary disability leave. The new legislation provides specific protection to such employers against claims for wrongful discharge, breach of implied contract, tort or common law if they do not reinstate an employee following his or her family leave. However, employers with 50 or more employees generally are required to reinstate employees after qualified family or medical leave under the New Jersey Family Leave Act ("NJFLA") and/or the federal Family and Medical Leave Act ("FMLA").
Unpaid leave is currently available to many New Jersey employees pursuant to the NJFLA and FMLA. Eligibility for leave and benefits available under the new law runs concurrently with any leave provided by the NJFLA or the FMLA. In addition, an employer may require an employee to use up to two weeks of company-provided sick or vacation benefits before the employee is entitled to receive paid family leave benefits. In such cases, the employee's maximum entitlement to paid family leave benefits would be reduced by the number of weeks the employee received company-provided sick or vacation benefits.
In complying with the family temporary disability leave law, employers should be mindful of the similarities and differences between this new law and other potentially applicable leave laws, such as the NJFLA and the FMLA. Unlike the new family temporary disability leave law that applies to all employers, the NJFLA and FMLA are applicable to employers with 50 or more employees.
To qualify for leave under the NJFLA or the FMLA, an employee must have worked for his/her employer for at least 12 months and must have worked a minimum number of hours in the prior 12 months (1,000 hours for the NJFLA and 1,250 hours for the FMLA). An employee seeking family leave benefits under the new legislation must have met the minimum earnings requirements set forth in the state unemployment compensation law, which means that the employee worked for at least 20 weeks during which he/she earned 20 times the minimum wage to be eligible for paid family leave benefits, or the employee earned at least 1,000 times the current minimum wage adjusted to the next higher multiple of $100 during the applicable unemployment compensation "base year" (currently, this minimum threshold is $7,200). Differences in the laws also may impact an employee's right to leave under one or more of the laws. On the one hand, under the NJFLA, an employee may begin leave for the birth or adoption of a child at any time during the first 12 months after the birth or adoption, and such leave may extend beyond the one-year anniversary. Benefits under the new family temporary disability leave law, on the other hand, are available during only the first 12 months after the birth or adoption.
Given the interrelatedness of these three laws governing family leave rights, employers should confer with legal counsel to ensure their leave polices and practices are in compliance with the statutory mandates. This is particularly true for small employers who are likely to be most significantly impacted by this new legislation since they have not been covered by the NJFLA or FMLA.
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