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Employment and Labor Law Alert - Recent Developments: Covered Employers Must Update Mandatory EEOC Posting and Provide Expanded FMLA Coverage to Military Families

Publish Date: 
November 3, 2009

Recent Developments: Covered Employers Must Update Mandatory EEOC Posting and Provide Expanded FMLA Coverage to Military Families

Employers Must Update Required EEOC Posting
The Equal Employment Opportunity Commission (EEOC) has released an update to its required "Equal Employment Opportunity is the Law" posting. The new version reflects current federal employment discrimination law, including information regarding the Genetic Information Nondiscrimination Act (GINA) and ADA Amendments Act regulations. The revised poster also includes updates from the U.S. Department of Labor. The EEOC posting update is mandatory for all covered employers and can be downloaded at the EEOC's Web site: http://www.eeoc.gov/posterform.html

GINA was signed into law in May 2008; however, the effective date for Title II, which contains the employment discrimination provisions, was delayed for 18 months. Effective November 21, 2009, GINA prohibits covered employers, which includes private employers with 15 or more employees, from:
  • Using genetic information to discriminate against an individual in hiring, firing, compensation, promotions and other employment decisions.
  • Acquiring genetic information about applicants or employees except in narrow circumstances.
  • Disclosing genetic information to others except as specified by the statute.
  • Retaliating against individuals who exercise their rights under GINA.
The EEOC's regulations regarding GINA are scheduled to be released soon, at which time Leonard, Street and Deinard will provide more detailed information regarding the statute and regulations. In the meantime, employers can prepare for the November 21, 2009, effective date of GINA by:
  • Revising EEO policies to include prohibitions against discrimination based on genetic information.
  • Posting the new EEOC poster.
  • Training managers and human resources professionals, including recruiters, on the requirements of GINA.
  • Reviewing employment-related medical examination procedures (including pre-employment, fitness-for-duty and other employer required exams) to ensure that family medical history or other genetic information is not being sought.
  • Reviewing procedures for maintaining and releasing medical information.
Employers may also wish to review our Compensation and Employment Benefits article explaining the effect of GINA on group health plans.
 
Expanded FMLA Rights for Military Families
On October 28, 2009, President Obama signed into law the 2010 National Defense Authorization Act (NDAA), which contains amendments to the Family and Medical Leave Act (FMLA) related to the leave available for military family members.
 
The NDAA makes qualifying exigency leave available for more military family members. Specifically, qualifying exigency leave is now available to families of those deployed to a foreign country on active duty in the regular Armed Forces, as well as those in the National Guard and Reserves. As we discussed in a December 2008 Alert, qualifying exigency leave is intended to help military families manage the covered service members' affairs when they are called to active duty status and includes such circumstances as short-notice deployment, military events and related activities, child care and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and any additional activities agreed to by the employer and the employee.
 
The military caregiver leave provision has also been expanded. FMLA-eligible employees will now be eligible to take up to 26 weeks of FMLA leave to care for a veteran suffering from a service-related injury or illness, so long as the veteran's service in the regular Armed Forces, National Guard or Reserves occurred within five years of the date of care. Previously, military caregiver leave was only available to care for current members of the Armed Forces, Guard or Reserves, which meant that FMLA leave was not available to address a service-related injury or illness that did not manifest itself during the period of military service. Military caregiver leave will also be available in situations where a covered service member has aggravated an existing or preexisting injury in the line of duty while on active duty, whereas the FMLA previously only covered serious injuries or illnesses incurred in the line of duty while on active duty.
 
Various federal agencies, including the U.S. Department of Labor, are charged with developing regulations to implement the amendments. Because these changes are effective immediately, however, employers should update their FMLA policies and practices to address these expanded leave rights.