Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

The U.S. House of Representatives, as expected, passed the Genetic Information Nondiscrimination Act this afternoon.  The bill, which had already been approved by the Senate, now moves on to the White House, where the President is expected to sign the bill.  The bill's summary and status can be found here.The roll call vote at 12:40 p.m. can be found here.   It passed overwhelmingly.  (Guess which Representative opposed it.)

The New York Times, through an AP report, has the immediate coverage:

Companies would no longer be able to use genetic information like a person's predisposition for breast cancer, sickle cell or diabetes to make insurance or job decisions under a bill passed by Congress on Thursday.

The House voted 414-1 for the legislation a week after it passed the Senate on a 95-0 vote. The bill would bar health insurance companies from using genetic information to set premiums or determine enrollment eligibility. Similarly, employers could not use genetic information in hiring, firing or promotion decisions.

As I noted earlier this week, this bill is not expected to have a significant impact in Connecticut where there is already legislation on the books prohibiting discrmination based on genetic information.

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Last week, while I was out on vacation, Congress acted on a bill that may have some interest in Connecticut. However, because Connecticut already has a similar bill already on the books, it will probably have a minor impact on employers.

The U.S. Senate approved of legislation that would prohibit genetic discrimination in the workplace.   As reported by the Manpower Employment Law Blog, The Genetic Information Nondiscrimination Act (GINA) sailed through the Senate on a 95-0 vote.  A House vote is expected shortly; you can check on the bill status of H.R. 493 here. 
Among other things, GINA would:

• prohibit discrimination based on genetic information in hiring, firing, compensation and other employment decisions;
• prohibit employers from collecting genetic information through workplace genetic testing or other means, with very narrow exceptions (e.g., monitoring the effects of hazardous workplace exposures);
• prohibit health insurers and plans from requiring genetic testing and from discriminating based on genetic information in enrollment and premium-setting; and
• impose strict workplace confidentiality/disclosure rules on all genetic information.

Senator Christopher Dodd expressed his strong support for the bill and posted his comments to his website, which you can find here. 

However, for employers in Connecticut, this should be old news. Connecticut already has a law that prohibits discrimination based on genetic information so I don't anticipate that GINA, if passed, will a significant impact in Connecticut.  Conn. Gen. Stat. 46a-60(a)(11) states that it is illegal:

     (11) For an employer, by the employer or the employer's agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent: (A) To request or require genetic information from an employee, person seeking employment or member, or (B) to discharge, expel or otherwise discriminate against any person on the basis of genetic information. For the purpose of this subdivision, "genetic information" means the information about genes, gene products or inherited characteristics that may derive from an individual or a family member.

To be sure, GINA has some additional provisions that will need to be looked at by employers in Connecticut.  But none of it is all that dramatic; Connecticut employers may want to await final passage of GINA before updating their policies on this issue. 

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Because my employment law trial starts this week in state court, I've arranged for a series of (what I think are) great guest bloggers to talk about what's new and noteworthy in employment law. It's a nice opportunity for readers of the blog to hear a different perspective while at the same time, keeping all of you updated on interesting developments. Regular blog posting will resume in 2-3 weeks when my trial concludes. 

Today, Jon introduces us to the Healthy Families Act legislation that has been introduced in Ohio and elsewhere around the county....

Legislatures around the country are beginning to seriously consider paid sick leave laws. Just recently, the D.C. legislature passed such a law, and Ohio will most likely have its law on the ballot in November for voters to decide.

Not to be outdone, Congress is also considering such a law, the Healthy Families Act. The HFA will grant all employees working for companies with 15 or more employees 7 paid days off per year for (1) their own physical or mental illness, injury or medical condition, (2) their own professional medical diagnosis or care, or preventive medical care, and (3) the same for an employee's child, parent, or spouse. Employees who work less than 30 hours per week or 1,500 total hours per year will receive a pro rated amount of paid time off.

Employers would have discretion to determine how employees accrue this paid leave, as long as it is at least quarterly. Employers cannot prohibit the carry over of 7 or less days per year.

The HFA will also allow for certification by a health care professional when an employee is out for more than 3 consecutive work days, an anti-retaliation provision, and a private right of action for aggrieved employees.

It also will forbid employers from counting the use of paid sick leave under a no-fault attendance policy. It is unclear if this prohibition applies only to paid leave under this statute, or any paid leave granted by an employer.

Section 11(a) of the HFA is what I believe to be the saving grace for most employers, and why I think the HFA will not result in monumental practical changes for the vast majority of companies that already provide paid time off if it passes.

That section provides: "Nothing in this Act shall be construed to diminish the obligation of an employer to comply with any contract, collective bargaining agreement, or any employment benefit program or plan that provides greater paid sick leave rights to employees or individuals than the rights established under this Act."

As I read that section, if a company has a leave policy that already provides for at least 7 paid sick days, it will not have to grant any additional paid leave.

The limited practical effect of this legislation notwithstanding, the cons of the HFA far outweigh its pros.

First and foremost, that last thing that businesses want is another statute under which employees will be able to sue, especially when it provides for double damages and attorneys fees.

Also take a look at Section 7(a)(1)(B):

It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this Act, including ... using the taking of sick leave under this Act as a negative factor in an employment action, such as hiring, promotion, or a disciplinary action.

 "Negative factor" is far too lenient of a standard, and very will could hamstring employers from taking legitimate action against any employee who is out for even a day with an illness.

Congress and state legislatures around the country should take a long, hard look at these serious deficiencies in the HFA, and should not merely knee-jerk vote in its favor because paid time off is viewed by most employees (and most of us are employees) as a "good thing."

If this statute becomes law in its current form, it will take a herculean effort by the Department of Labor to draft clear and comprehensive rules and regulations that make this law workable for businesses, instead of leaving myriad unanswered questions for the courts to sort out at the expense of those companies who will have to defend their individual interpretations.

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