Archive for the ‘Health & Safety’ Category

EEOC issues implementing regulations for Title II of the Genetic Information Nondiscrimination Act (GINA)

Wednesday, November 17th, 2010

On November 9, 2010, the Equal Opportunity Commission published the final implementing regulations for Title II of the Genetic Information Nondiscrimination Act (GINA).  The new regulations contain significant revisions from the proposed regulations submitted for public comment on March 2, 2009. 

GINA went into effect on May 21, 2008.  The statute prohibits employers from discriminating on the basis of genetic information when making employment decisions, including health insurance determinations.  It also creates a civil cause of action for employees who allege they were discriminated against on the basis of genetic information. GINA is primarily concerned with protecting employees whom the employer believes may develop a condition in the future.  The American Disabilities Act already protects employees who are currently disabled from discrimination.  All private employers with more than 15 employees, labor unions, and joint management programs are subject to the provisions of GINA.  

GINA prohibits employers from requesting or requiring genetic information concerning their employees.  Genetic information includes: an employee’s family medical history, genetic tests, genetic tests of a family member, requests for and receipt of genetic services by the employee or a family member, and genetic information about a fetus carried by an individual.  Both the statute and the new regulations exclude information about an employee’s age or gender from the definition of genetic information.  In addition, the new regulations clarify that an employee’s race or ethnicity is not considered genetic information subject to GINA, unless it is derived from a genetic test.

The new regulations create two major exceptions to GINA’s general prohibition on employer’s collecting genetic information.  First, employers who inadvertently obtain genetic information are not in violation of the statute.  This exception was specifically designed to protect employers from the “water cooler problem” in which an employer overhears a disclosure of genetic information, or acquires it during a conversation with an employee.  The exception also covers situations where an employee discloses genetic information in response to a general inquiry about their health such as “How are you” or “will your child be okay.”  However, an employer who learns inadvertent information may not respond by asking probing follow up questions such as whether other family members have the condition or if the employee has been tested for it.

Second, employers are permitted to request or require genetic information if they offer voluntary wellness programs.  A wellness program will only be considered voluntary under the regulations if the employer does not require participation or issue penalties for nonparticipation.  To ensure that participation is voluntary, employers must use authorization forms that are written in language that would be understood by the employee, describe the type of genetic information that will be obtained, and the limitations on the disclosure of the information. 

An employer may offer financial inducements to encourage participation in programs in wellness, disease management, and healthy lifestyles.  However, an employer may not offer those financial incentives for the specific purpose of inducing employees to reveal genetic information.  For instance, it would not be a violation of GINA to offer employees a financial incentive for completing a health risk assessment that included questions concerning family medical history so long as the award was not contingent on the employee answering the questions related to genetic information. 

The new GINA regulations substantially clarify the law employers must follow in relation to employee genetic information.  Employers should be very careful not to request genetic information or make employment decisions on the basis of genetic information.  A prudent employer should also post notices on employee rights under GINA, include the safe harbor language in requests for medical information and train supervisors to understand and comply with the statute.

Posted in Employment Law/Legislation, Health & Safety, Industry News | No Comments »

The Massachusetts Hospital Association Tells Smokers They Need Not Apply

Saturday, November 6th, 2010

The Boston Globe’s medical blog reports that the Massachusetts Hospital Association has decided it will no longer hire prospective employees who use tobacco products.  The Massachusetts non-profit organization, which currently employs 45 people, will enforce the policy through an honor system beginning on January 1, 2011.  The organization offered the small number of its current employees who do use tobacco products assistance in quitting while the policy was under considerations over the past several months. 

The group lauds the new policy on its website as “a bold move to promote a healthy workforce and reduce the leading preventable cause of death in the US.”  MHA president Lynn Nichols puts it even more bluntly, stating, “We just aren’t going to welcome users of tobacco inside our workforce.”  Dr. Michael Siegel, a Boston University School of Public Health professor who has long worked to promote tobacco-free workplaces, criticizes the MHA’s decision.  He argues that the appropriate approach is to offer employees assistance in quitting tobacco use, rather than ostracizing them from the workplace altogether.

Beyond simply being a public health pronouncement, however, the MHA’s new policy has legal ramifications, as well.  Employers thinking of emulating the MHA need to consult with legal counsel to ensure such a move would be legal in their state.  While there appears to be no Massachusetts precedent restricting the MHA’s decision, twenty-nine states have enacted “Smokers’ Rights” laws prohibiting particular types of discrimination against persons because of their status as tobacco users.

New Hampshire RSA 275:37-a, for instance, states that “No employer shall require as a condition of employment that any employee or applicant for employment abstain from using tobacco products outside the course of employment.”  Connecticut Gen. Stat. § 31:40s goes further, also prohibiting discrimination in “terms, conditions or privileges of employment” based on smoking outside the workplace.  Interestingly, the Connecticut statute exempts non-profits “whose primary purpose is to discourage use of tobacco products by the general public” from the provisions of the law, but this language would likely not protect a hospital association such as the MHA.

The employers need to be wary that their “bold move” might cross the line into a violation of their employees rights under state labor statutes.  And as indicated above, such statutes are not limited to the traditional tobacco producing states.

Stephen Coppolo, a member of NKMS’s Employment Counseling and Litigation Group, contributed this article.

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Happy Meal Lawsuit Threatened Against McDonald’s: Is the Happy Meal Really Like “Joe Camel,” and Does It Really Violate Consumer Protection Laws?

Friday, June 25th, 2010

Chris Vrountas offers the following post:

The Center for Science in the Public Interest has threatened to file consumer protection lawsuits in a number of jurisdictions against McDonald’s unless the fast food chain stops its practice of offering toys to children who order the Happy Meal, which typically includes a cheeseburger and “fries.” The Group claims that McDonald’s marketing “unfairly and deceptively” targets children by enticing them with toys to “nag” their parents to have them buy allegedly unhealthy or high fat meals. “McDonald’s “couldn’t disagree more” and asserts that the chain offers a great variety of foods that include low fat and healthier options.”

While McDonald’s may have its own legal defenses, there is another perhaps larger potential defect in the group’s theory against the chain. “Ultimately, it is one of causation.” Or in other words, as some skeptics have argued, it’s called “parenting,” and perhaps those concerned with what their children eat should “just do it.”  It is one thing if the concern” was about children old enough, to have their own purchasing power and about advertising that in fact deceives them “into purchasing a harmful product.” Think, for example, of Joe Camel, a marketing program allegedly targeted to children who were not legally permitted to use the product but who nevertheless could purchase it with their own money. “Here, however, the customers are parents who presumably can read labels and the nutrition content offered by the chain to anyone who asks.” While toys may entice children to ask their parents for something that is not good for them, parents with access to full information make the final call. In that context, the defense argument goes, how can the real customer genuinely argue that the chain has been “deceptive” in its marketing?

The Group, however, insists that the targeting of children, who are “really the ultimate customers, is calculated to mislead them so that they may press their parents into purchasing allegedly unhealthy products for them.” And, if the chain’s marketing is not actually “deceptive,” then perhaps it is “unfair” to market in such a fashion as to mislead children into becoming “an unpaid army drone army of work-of- mouth marketers, causing them to nag their parents to bring them to McDonald’s.”

The Group is not the only critic of the Happy Meal practice. “Santa Clara County in California this year” enacted a ban in restaurants on toy give-aways associated with high calorie meals aimed at children. “There are a number of ways a restaurant could arguably comply with this ban while nevertheless continuing to offer loss leader toys to children.” For example, one could offer an alternative series of meal packages, including both “healthy” and “high calorie” options, that would all include the toy give-away. “There” really is no reason why kiddie toys should only be associated with the “lunch box of death.”

The Group has served its demand letter upon McDonald’s, giving the chain 30 days to respond with a reasonable offer of settlement. “What McDonald’s may do remains to be seen.” “While it is a free country, hopefully McDonald’s and the nutrition activists can bring freedom of choice and health to a workable compromise and settle this alleged consumer protection claim, as there is no reason why a Happy Meal cannot also be a healthy meal.

Posted in Health & Safety, Industry News, Menu Labeling, Restaurant Liability | No Comments »

Congress Passes Sweeping Health Care Overhaul

Monday, March 22nd, 2010

Last night, the House of Representatives passed the Senate???s health care bill (???Senate bill???) and a reconciliation ???fix it??? bill (the ???reconciliation bill???) that makes certain changes to the Senate bill.?? Regardless what you think about health care, the landscape this morning is much different than before, and it is important for businesses and individuals to take note of the key provisions in both bills.

There are still some legislative steps that must be completed before either bill becomes law.?? The President must first sign the Senate bill in order for it to become law.?? The signing ceremony is scheduled for tomorrow.????Then the Senate can take up the reconciliation bill.?? It is expected that the Senate will pass the reconciliation bill, which will alter the main Senate bill by eliminating certain controversial provisions in it.?? Together, however, they constitute sweeping reform of the health care industry.?? Beginning in 2014, coverage will begin to expand to the estimated 32 million uninsured Americans, and by 2019, it is estimated that 95% of eligible Americans would have coverage.

Here are the key provisions of both bills and when most of them take effect:

Coverage Mandates

In 2014, individuals will be required to purchase health insurance.?? Those who fail to purchase coverage will be fined $325 in 2015, $695 in 2016, and as much as 2.5% of their income in 2016 if the total is greater than the flat payment.?? There is an exemption for low-income people.

In 2014, employers with 50 or more workers who do not offer health insurance coverage will be fined $2,000 per full-time employee.?? Companies with 50 or fewer workers are exempt from the requirement.?? Part-time workers are included in the calculations: two part-timer workers equal one full-time worker.

Insurance Market Reform

This year, insurers will be barred from placing lifetime coverage limits on policies, denying coverage to children based on pre-existing conditions, and canceling policies due to illnesses (i.e., rescission).?? Insurers must also disclose their rate increases.

Also, beginning this year, parents??? health care policies will cover dependent children until age 26.

Beginning in 2011, insurers are required to spend at least 85 cents of every premium dollar on medical care in small group markets and 80 cents in large group markets. ??Medicare Advantage insurers are also required to spend at least 85% of revenues on medical care.

Beginning in 2014, insurers will be barred from excluding anyone for pre-existing medical conditions or charging them more.

Also, beginning in 2014, small businesses and individuals without employer-sponsored coverage can shop for health insurance plans through new state-based purchasing pools called ???exchanges.????? (???Small businesses??? are defined as those with no more than 100 employees, but states have the option of limiting exchanges to companies with 50 or fewer employees through 2016. ??Companies that grow beyond the size limit will also be grandfathered in.)?? The plans offered on the exchanges will have to meet certain minimum benefit requirements.?? Until these exchanges are available, there will be a temporary insurance program for the uninsured.

In addition, until the exchanges are available, businesses with 10 or fewer full-time-equivalent employees earning less than $25,000 a year on average will be eligible for a tax credit of 35% of health insurance costs. (Companies with between 11 and 25 workers and an average wage of up to $50,000 are eligible for partial credits.)?? The tax credit will remain in place and increase to 50% of costs for the first two years a business purchases insurance through its state exchange.

Taxes

Beginning in 2018, there will be a 40% excise tax on high-cost health insurance plans, otherwise known as ???Cadillac plans??? (plans costing $10,200 for individuals and $27,500 for family coverage). ??A higher threshold is allowed for plans covering mostly women, older workers, retirees, and those in high-risk professions.

In 2013, payroll taxes for Medicare (the government health insurance plan for the elderly and disabled) will increase to 2.35% (from the current 1.45%) for individuals earning $200,000 or more and for couples earning $250,000 or more.

The new Medicare tax will also apply to ???unearned income??? (i.e., investment income) for those high-income groups as an additional 3.8% surtax.?? Specifically, it will apply to income from interest, rent, royalties, and passive S-corporation and partnership profits for families making more than $250,000 annually and singles making more than $200,000.?? This tax is in addition to the current tax rate on such income.?? It will also likely apply to capital gains.

Beginning in 2013, individuals under 65 cannot deduct medical expenses until they exceed 10% of income (up from the current threshold of 7.5%).?? Retirees, however, will keep the lower threshold.

Beginning in 2011, there will be new restrictions on what can be purchased using special savings accounts funded with pre-tax dollars (including health savings accounts).?? Improper withdrawals from the accounts will incur a 20% tax.?? In addition, there is a new limit of $2,500 on what people can contribute to employer-sponsored flexible spending accounts (another type of account funded with pre-tax dollars that can be used to pay for medicines, co-payments, and other expenses).?? Before this cap, employers set their own limits, typically between $3,000 and $5,000.

Beginning in 2013, there will be fees on medical device manufacturers, insurance providers, and brand-name pharmaceuticals.

Insurers will also be denied deductions for executive pay over $500,000.?? (Under current law, businesses can deduct up to $1 million a year in compensation for executives.)

Finally, beginning this year, there will be a 10% tax on indoor tanning services that use ultraviolet lamps.

Federal Subsidies

Beginning in 2014, federal subsidies will be provided to help people with incomes of up to 400% of the poverty level (approximately $88,000 per year) purchase health insurance on the exchange. ??Those subsidies will be higher for lower income people.

Medicaid Expansion

Beginning in 2014, Medicaid (the government health insurance program for the poor) will be expanded to everyone with incomes of up to 133% of the poverty level.?? That equates to $10,830 for an individual and $29,327 for a family of four. ??(Many states have eligibility requirements below those levels.)

The reconciliation bill eliminates a special deal that would have provided more money to Nebraska to cover costs of increased Medicaid coverage.

Medicare

In 2011, payments to insurers that provide coverage to Medicare patients will be frozen.?? The law begins reducing this subsidy in 2012.

Effective immediately, the law begins to close the gap in drug coverage for Medicare beneficiaries (known as the ???donut hole???).?? Those who enter the coverage gap in 2010 will receive a $250 rebate. ??In 2011, they will receive a 50% discount on brand-name drugs.?? When the gap is completely eliminated in 2020, seniors will still be responsible for 25% of the cost of their medications until Medicare’s catastrophic coverage kicks in.

Student Loans

The law will also eliminate a $60 billion program that supports private student loans with federal subsidies, effectively eliminating private-sector student loan lending, and replace it with government lending to students.

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Violators: Expect to be caught between Barack and a Hard Place

Thursday, January 28th, 2010

Chris Vrountas has posted the following:

President Obama delivered his first State of the Union address to a Joint Session of Congress and to the American people last night. He covered quite a bit of ground about the economy, health care and national security, among other things, but he also specifically discussed his administration’s policy regarding civil rights and wage law enforcement. The president’s strident tone should provide notice to business and other employers that the federal government will be looking to enforce the anti-discrimination and wage laws vigorously and, in some cases, looking to make examples of certain violators. Here is a brief portion of the speech last night:

. . .

Abroad, America’s greatest source of strength has always been our ideals. The same is true at home. We find unity in our incredible diversity, drawing on the promise enshrined in our Constitution: the notion that we are all created equal, that no matter who you are or what you look like, if you abide by the law you should be protected by it; that if you adhere to our common values you should be treated no different than anyone else.

We must continually renew this promise. My Administration has a Civil Rights Division that is once again prosecuting civil rights violations and employment discrimination. We finally strengthened our laws to protect against crimes driven by hate. This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are. We are going to crack down on violations of equal pay laws - so that women get equal pay for an equal day’s work. And we should continue the work of fixing our broken immigration system – to secure our borders, enforce our laws, and ensure that everyone who plays by the rules can contribute to our economy and enrich our nations.

In the end, it is our ideals, our values, that built America – values that allowed us to forge a nation made up of immigrants from every corner of the globe; values that drive our citizens still. Every day, Americans meet their responsibilities to their families and their employers. Time and again, they lend a hand to their neighbors and give back to their country. They take pride in their labor, and are generous in spirit. These aren’t Republican values or Democratic values they’re living by; business values or labor values. They are American values.

. . .

So, it is “let the word go forth” time for this administration and its policy on civil rights and wage and hour enforcement. Employers should mindfully review their policies, develop their training, ensure compliance, make HR available and noticeable, take internal complaints seriously and resolve them fairly because employers who do not manage their workplaces actively may have the EEOC or the DOL doing it for them.

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Trouble Brewing At Starbucks

Sunday, January 24th, 2010

Regardless of who you believe, it is a sordid story that may lead to a tremendous liability for Starbucks, not to mention embarrassment for everybody involved. A teenaged “barista” has alleged that her 24 year old manager sexually harassed her on a regular basis and used his position to obtain sexual favors from her. The company claims that the two concealed a consensual relationship. The manager claimed he never know the employee was only 16 and pleaded guilty to statutory rape charges and served 4 months in jail. The teenagers parents seek to impose responsibility for these events upon the company.

Whether Starbucks has a valid legal defense or not, this should not have happened. Bottom line: an employer should not only have a policy against harassment, it should also have and enforce a non-fraternization policy between managers and line-workers. And rules are not enough. An employer should conduct training as part of the hiring and promotion process, and that training should be refreshed on a regular basis. A professional human resources department can also serve as a trouble shooter, helping operations work in a way that can avoid liability and working towards ensuring that employees feel comfortable in their environments by being visible and available. At the end of the day, a strong work culture based on respect and team work will do more than policies printed on forgotten paper.

The demographics in this case also demonstrate an important point. Here, a teenager has brought a complaint concerning her 24 year old manager. Frequently, sexual harassment claims, especially in the restaurant context, arise when young and inexperienced people with authority fail to manage their authority in a responsible manner. In other words, they’re not yet grown ups and they act like kids, and they’re surprised at the consequences. Yes, rules and their enforcement are important, but training, training, training, will actually better serve an employer and its employees. Having a strong corporate purpose, a strong corporate culture, and a solid corporate infrastructure capable of delivering training, mentoring and troubleshooting can help employers avoid the sordid stories on prime time and keep your employees looking at the bottom line.

Chris Vrountas, Chair of the Employment Counseling and Litigation Practice Group, contributed this posting.

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Hold the Salt?

Wednesday, January 13th, 2010

Laurie R. Bishop, a member of the Firm???s Employment Counseling and Litigation Practice Group, reported the following:

The mayor of New York City announced on Monday that he plans to take steps to limit the salt intake of the city???s residents. Mayor Bloomberg, who is well-known for his healthy-living initiatives concerning smoking and trans fat, says that his plan would set a goal of reducing the amount of salt in packaged and restaurant food by 25 percent over the next five years. According to Bloomberg, the plan is supported by health agencies in other cities and states. An article on the front page of the New York Times on January 12, 2010, noted doubts as to the success of the plan, explaining that it would require participation on a national scale and that some medical researchers have questioned the scientific basis for the initiative, saying insufficient research had been done on possible effects. Before you take the salt shakers off the tables though, note that the plan is voluntary only and involves no legislation. It is also meant to allow companies to cut salt gradually so that consumers will not notice a big change and can become accustomed over time to the ???healthier??? taste of their food.

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