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January 1, 2010

Employers See Several Changes to Federal Employment Law but No Significant Developments in California

While no significant employment-related legislation was signed into law in California in 2009, several changes in federal employment laws took place. Three changes to federal law warrant review as they may affect a company’s policies and employees.

COBRA Subsidy Extended

On December 19, 2009, President Barack Obama signed into law the Department of Defense Appropriations Act of 2010 (“DAA”) extending the eligibility period for the COBRA subsidy under the American Recovery and Reinvestment Act of 2009 (“ARRA”). The DAA also extends the maximum duration for which individuals may receive the COBRA subsidy by six months.

The initial COBRA subsidy went into effect in February 2009, providing certain qualified individuals with a 65 percent subsidy toward COBRA premiums for up to nine months if COBRA eligibility arose from an employee’s involuntary termination that occurred between September 1, 2008, and December 31, 2009. Under the DAA, the eligibility period is extended by two months, from December 31, 2009, to February 28, 2010, and the maximum duration of COBRA subsidy is extended from 9 to 15 months.

The DAA provides individuals whose original nine-month subsidy period expired, and who chose not to continue COBRA, an opportunity to retroactively pay their premiums. These premiums must be paid by February 17, 2010, or 30 days after the date they are notified of the DAA’s subsidy extension, whichever is later.

By February 17, 2010, Administrators of group health plans or employers must provide notices of the new extension rights to individuals who became eligible for assistance (“Assistance Eligible Individuals” or “AEIs”) on or after October 31, 2009.

The Department of Labor (“DOL”) published model notices as it did for the last wave of notifications, and updated models are posted at Individuals who lost assistance are entitled to receive additional notification, a sample of which is also published at the DOL’s website.

The law also clarifies that eligibility and notice requirements are based solely on the timing of the employee’s qualifying event (i.e., termination), and not the date the individual becomes COBRA-eligible (i.e., when COBRA coverage begins, typically the first of the month following termination).

Genetic Information is a Protected Characteristic Under the Genetic Information Nondisclosure Act

The Genetic Information Nondisclosure Act (“GINA”) became effective November 21, 2009 and applies to private, state, and local government employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs.

GINA prohibits covered entities from using genetic information in making decisions related to any terms, conditions, or privileges of employment; acquiring genetic information; disclosing genetic information about applicants and employees; harassing an individual due to genetic information; or retaliating against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination.

Several exceptions to the rule against acquisition of genetic information exist, including:

  • Inadvertent acquisitions of genetic information, including situations where a manager or supervisor overhears someone talking about a family member’s illness
  • Genetic information obtained as part of health or genetic services, or wellness programs offered by the employer on a voluntary basis, if certain specific requirements are met
  • Genetic information acquired as part of the certification process for the Family Medical Leave Act, where an employee requests leave to care for a family member with a serious health condition
  • Acquisition through commercially and publically available documents, like newspapers, as long as the employer is not searching the sources with the intent of finding genetic information
  • Acquisition through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace, where the monitoring is required by law, or for voluntary programs under carefully defined conditions
  • Acquisition of genetic information by employers who engage in DNA testing for law enforcement purposes such as a forensic lab or for purposes of human remains identification, but only for analysis of DNA markers for quality control to detect sample contamination

Protected genetic information includes information about an individual’s genetic tests, genetic tests of a family member, and family medical history. Genetic information does not include information about the sex or age of an individual or the individual’s family members, or information that an individual currently has a disease or disorder. Genetic information also does not include tests for alcohol or drug use.

Covered entities in possession of genetic information about applicants or employees must treat the information the same way they treat medical information generally. They must keep the information confidential and, if the information is in writing, it must be kept in separate files, away from other personnel information. A covered entity may keep genetic information in the same file as medical information subject to the Americans with Disabilities Act.

FMLA Amendment Extends Military Caregiver Leave to Veterans and Qualifying Exigency Leave to Families of All Armed Forces Members

On October 28, 2009, the President signed legislation expanding rights under the Family and Medical Leave Act (“FMLA”) as part of the National Defense Authorization Act of 2010 (“NDAA”). The new law expands Qualifying Exigency Leave coverage to families of Armed Forces members on active duty, not just families of members of the National Guard and Reserve, and expands Military Caregiver Leave to cover the families of certain veterans.

The NDAA of 2008, signed by President George W. Bush, expanded the FMLA to create Qualifying Exigency Leave which provides up to 12 weeks of unpaid leave where an employee has a qualifying exigency arising out of the fact that a spouse, son, daughter, or parent is on active duty or was called to active duty in the National Guard or Reserves. The new law expands on the definition of “active duty” (now referred to as “covered active duty”) to include when a member of the Armed Forces is deployed to a foreign country. The legislation also removes the “in support of contingency operation” requirement for this leave, which means that all calls to active duty for members of the National Guard, Reserves, or Armed Forces appear to qualify for Qualifying Exigency Leave.

The NDAA of 2008 also established Military Caregiver leave, under which a covered service member’s spouse, son, daughter, or next of kin may take up to 26 weeks of unpaid leave during a 12-month period to care for the injured service member. The NDAA of 2010 expands the definition of covered service member to include veterans who develop an illness or injury that is service related, for up to five years after the soldier leaves active duty. The legislation also adds eligibility for leave where a service member, in the line of duty, aggravates an injury that existed before the beginning of the member’s active duty, for both active members and veterans.

Employers should review their handbooks, policies, posters, and agreements which may require revisions due to these new laws. As of this writing, the Equal Employment Opportunity Commission updated its Poster “Equal Employment is the Law” with references to GINA, however, the Department of Labor had not yet updated its Poster of Rights and Responsibilities under the FMLA.


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