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August, 2022

3 Key Considerations Under GINA – the Federal Law You May Have Overlooked

The Genetic Information Nondiscrimination Act (GINA) may be the sleepiest of the federal EEO laws, the one that many employers have never heard of or have entirely forgotten.  It prohibits employers from collecting genetic information from employees and using that as a basis for employment decisions.  Most employers, in the practical realities of day-to-day interactions, have little or no interest in their employees’ genetic information and never run afoul of the law.  The EEOC’s charge-filing statistics reflect this as well.  Of the tens of thousands of charges filed annually with the EEOC, typically only 200 to 300 include reference to a claim under GINA. 

But things have changed a bit with the pandemic. Charge filings asserting a violation of GINA spiked to 440 in 2020 as employers began more formally to formally probe into employees’ personal lives, and the EEOC posted lengthy guidance on employers’ obligations under various federal laws, including GINA, when responding to the COVID-19 pandemic.  The EEOC’s guidance sets the parameters of appropriate inquiries in the COVID-19 context, but it also serves as a primer for employers on the scope of GINA. 

Don’t Ask About Family Members 

GINA prohibits employers from asking medical questions about family members. In the COVID-19 context, that has meant that employers seeking to gather information about employees’ COVID exposure can ask if an employee has been in close contact with someone who tested positive or was exhibiting symptoms of COVID. An employer cannot ask whether an employee’s family member has tested positive for or exhibited symptoms of COVID. The latter inquiry runs afoul of GINA. 

Similarly, in more typical workplace interactions, employers should coach their managers not to probe too closely into employees’ family medical histories. If an employee reports a recent cancer diagnosis, for example, an appropriate response is to express sympathy and ask if the employer can provide support. An inappropriate response in having that conversation is to ask whether cancer runs in the employee’s family, or anything along those lines – such inquiries might be common in conversations with friends and neighbors, but in the workplace they may run afoul of GINA. 

A Florida-based medical practice learned a painful lesson on the reach of GINA. The employer had been collecting employees’ family members’ COVID-19 testing results. The EEOC recently announced it had reached a conciliation agreement with this employer, which included payment of compensatory damages and back pay to employees, posting a notice, and conducting training on EEO laws pertaining to COVID-19. The employer also had to stop collecting employees’ family members’ test results. 

Collecting Vaccination Information is Permissible 

The EEOC guidance clarifies that information on vaccination status (as distinct from COVID symptoms or test results) is not considered family medical history. Therefore, employers can request proof of vaccination of employees and their family members without violating GINA. Notably, though, if an employer were to gather information on medical history related to an employee’s family member’s vaccination status, then the employer would potentially run afoul of GINA. It was important to the EEOC’s analysis that the pre-vaccination screening questions for COVID-19 do not seek family history or any other type of genetic information. 

Incentivizing Vaccinations is Complicated 

Employers looking to take their COVID precautions to the level of incentivizing employees’ family members to get vaccinated face various hurdles under GINA:

  1. 1. Beware of incentives.

The employer cannot offer an incentive to the employee in exchange for a family member receiving a vaccine from the employer or the employer’s agent because, in posing the pre-vaccination medical screening questions, the employer would thereby be collecting family medical history on the employee.

2. Make it Purely Voluntary

The employer must ensure that the vaccinations of family members are purely voluntary, meaning that the employer neither requires employees to have their family members get vaccinated nor penalizes employees whose family members opt not to be vaccinated.

3. Keep it Confidential

Employers need to safeguard the confidentiality of the medical information obtained from family members during the screening process, and ensure it is not shared with anyone who makes employment decisions involving the employee.

4. Get Written Consent

Employers need to obtain prior, knowing, voluntary, written authorization from the family members before asking any pre-screening questions or administering the vaccine.

Other EEO laws may present additional hurdles in the vaccination context, and employers are advised to consult legal counsel before implementing any vaccine incentive program. 

By Tracey I. Levy

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20

March, 2022

COVID Mandates Have Lessened But Employers Still Have Obligations

By Alexandra Lapes and Tracey I. Levy

New York State employers may now suspend implementation of their infectious disease prevention plans (otherwise known as HERO Act plains), as the state’s order designating COVID-19 as a highly contagious communicable disease expired on March 17, 2022 and thus far has not been extended.  As COVID-related mandates have largely been lifted or expired across the tri-state, employers are once again left in a state of uncertainty – after two years of massive regulations, what is still required and where do employers have discretion to act independently in responding to the pandemic?  The short answer is that it varies, and we have endeavored to summarize the current state as of March 2022.

COVID-Related Restrictions and Current Effect

CDC Guidelines Applicable Throughout the County

The CDC continues to require individuals who are two and older to wear a face mask on public transportation and conveyances such as trains and airplane.  Outside that context, the CDC maintains its distinction between those who are and those who are not vaccinated, and recommends that unvaccinated people continue to wear a face mask at public events and gatherings around other people.

New York State and New York City

Masks are no longer mandatory in most settings

Effective as of February 10, 2022, Governor Hochul lifted the indoor mask-or-vaccine mandate for all private sector employers in New York State.  As a result, most employers now have discretion as to whether and when to require face coverings.  However, in addition to the CDC mandate for public transportation, masks are still required for certain high-density and particularly vulnerable settings, including all health care settings regulated by the Department of Health and other related state agencies, nursing homes, adult care facilities, correctional facilities, detention centers, homeless shelters, and domestic violence shelters, public transit and transportation hubs.

NYC customers need no longer prove vaccination status, but proof is still required for employees

New York City suspended the “Key to NYC” mandate as of March 7, 2022, that had required businesses to verify vaccination status as a condition of entry to indoor dining, fitness, and entertainment venues in the city.  However, through a new Mayoral Executive Order issued on March 4, 2022 and ongoing requirements by the New York City Department of Health and Mental Hygiene (DOHMH), all employees who work in-person in New York City – for every type of employer – must provide or have provided proof of vaccination against COVID-19 to their employers.  Employers must exclude from the workplace any worker who has not provided such proof, unless an exception due to a religious or medical accommodation applies, or a worker only enters the workplace for a quick and limited purpose.

In addition to the vaccination requirement, New York City employers currently must continue to:

  • Post an official DOHMH sign in a conspicuous location at the business; and
  • Keep a record of each worker’s proof of vaccination (including ensuring employees get their second dose) and any reasonable accommodations.

Employers who previously posted a notice per the Key to NYC requirements do not need to post the DOHMH attestation sign.

New Jersey and Connecticut – Reprieve from Face Coverings

For New Jersey employers, as of March 7, 2022, the statewide mask mandate has been lifted, as the Governor signed an executive order withdrawing the declaration of COVID-19 as a public health emergency.

For most employers in Connecticut, all business sector rules enacted to prevent the spread of COVID-19 were lifted as of May 19, 2021, with limited exceptions where face coverings were still required.  Those exceptions are still in effect in accordance with the latest order issued by the Connecticut Public Health Commissioner effective February 28, 2022, and face masks are therefore still required in schools, healthcare settings, and shelters.

Ongoing COVID Leave Obligations

Employers in New York State, New York City, and New Jersey must be aware of continuing COVID leave obligations, particularly concerning paid sick leaves, that remain in effect.  We have broken down the key pieces of COVID-related leave provisions effective in the tri-state area below.

For more information regarding NY and NJ on-going pandemic-related paid leave provisions see this blog article, and the series of COVID-19 leave articles on our blog.

Stay Informed

The news is swirling with reports of new COVID-19 variants developing, some of which may trigger future restrictions.  Therefore it is prudent for employers to continue to monitor for further updates.  We have provided links below for current standards issued at the federal, state and local levels impacting employers in the New York tri-state area.

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