Outten & Golden: Empowering Employees in the Workplace

Archive for May, 2008

Say Hello to GINA

Friday, May 30th, 2008

GINA isn’t a new Workplace Fairness staff member, but the first piece of federal legislation protecting workers from discrimination that has come along in quite some time. GINA stands for the Genetic Information Nondiscrimination Act, which prohibits employers from discriminating against applicants and employees based on genetic tests or genetic information, and also prohibits health insurers from restricting enrollment and premium adjustments for health insurance on the basis of genetic information or genetic services. Don’t rush out to get those genetic tests just yet, however, as the employment section of the new law doesn’t go into effect for 18 months, in order to give the Equal Employment Opportunity Commission time to implement regulations, and for employers to develop policies consistent with the new law.

It’s hard to imagine a bill more bipartisan than GINA. The bill (HR 493) passed the Senate by a vote of 95-0 and the House by a margin of 414-1. (Who was that lone House dissenter? Republican presidential candidate Ron Paul, whose Congressional website claims that he “never votes for legislation unless the proposed measure is expressly authorized by the Constitution,” and that according to former Treasury Secretary William Simon, he’s the “one exception to the Gang of 535″ on Capitol Hill.” That was certainly the case this time.)

Obviously, with such widespread Congressional support, President Bush had no choice but to sign it, and he did so on May 21, 2008. (See Signing Statement.) In doing so, he noted the absence of Sen. Ted Kennedy, due to a recently diagnosed malignant brain tumor, who had been a driving force behind the bill’s passage during the decade that it was under consideration. Kennedy’s spokewoman noted, “Today, the President signed what Senator Kennedy calls the first civil rights law of the century of the life sciences.” (See Kennedy statement.)

What does GINA do?

GINA prohibits employers from discriminating against their employees on the basis of genetic information (no matter how the information was acquired) in hiring, termination, compensation, and other personnel actions such as promotions, classifications and assignments. It also prohibits employers from requiring genetic testing and from purchasing or collecting genetic information, with a few limited exceptions, such as when it is required for Family and Medical Leave Act certification and monitoring effects of hazardous workplace exposures.

GINA also prohibits disclosure of an employee’s genetic information, except under the following circumstances:

  • upon the employee’s request,
  • to an occupational or other health researcher,
  • pursuant to a court order,
  • to a government official investigating compliance with this law,
  • in connection with the employee’s compliance with the FMLA or state family and medical leave laws, or
  • to a public health agency.

When genetic information is received by the employer, it is to be maintained confidentially and disclosed to the employee only.

The health insurance provisions of GINA go into effect in one year, as opposed to 18 months for the employment-related provisions. These provisions apply to group health plans, individual plans, and Medicare supplemental plans. GINA prohibits the use of genetic information in enrollment restrictions and premium adjustments and prohibits health plans and insurers from requesting or requiring genetic testing. However, GINA doesn’t prevent genetic discrimination against people applying for life, disability, or long-term care insurance — other forms of insurance where genetic information may adversely influence a patient’s ability to obtain adequate insurance.

Why is GINA necessary?

According to the National Human Genome Research Institute,

While most Americans are optimistic about the use of genetic information to
improve health, many are concerned that genetic information may be used by
insurers to deny, limit or cancel health insurance, and by employers to
discriminate in the workplace. They are worried that some insurers may choose
not to insure people who are healthy but genetically pre-disposed to future
disease onset: such people incur more health-related costs for the insurance
company than individuals who are not predisposed. Similarly, they fear that some
employers might only employ or retain individuals who are not pre-disposed to
future disease onset, since healthy individuals are more productive.

Once GINA’s protections kick in, in late 2009, employees will feel more confident about taking genetic tests that may help predict whether they will develop certain diseases without worrying whether doing so will make them unemployable and uninsurable. With more individuals taking genetic tests, scientists will have more data allowing them to make the tests even more reliable and useful. While the misuse of genetic information may not be widespread now, with very few cases in the states that currently have antidiscrimination protections, this bill is designed to prevent genetic discrimination from ever gaining a foothold in the workplace.

As the primary House sponsor of the bill, Rep. Louise Slaughter, proclaimed, “Since no one is born with perfect genes, each one of us is a potential victim of genetic discrimination.” (See Slaughter statement.) This legislation will protect all of us, and luckily all of Congress and the President agreed. Now, if we just didn’t have to wait 18 months for it to go in effect…but we’ve already waited over 10 years.

More Information:

Coalition for Genetic Fairness
Human Genome Project
National Human Genome Research Institute, National Institute of Health genetic discrimination page

It Shouldn't Hurt to Say You're Sorry

Wednesday, May 21st, 2008

A recent article in the New York Times caught my eye: Doctors Say ‘I’m Sorry’ Before ‘See You in Court’. It really got me thinking about what would happen to the practice of employment litigation if employers would adopt the same practice. I suspect that it would dramatically cut the instances where employees would sue their employers if more employers could say “we’re sorry,” when an employee was mistreated. Will this trend take hold with employers the way it’s starting to with doctors?

Humans make mistakes, and doctors are no exception. While mistakes can be harmless, they can also be a matter of life or death. The cost of malpractice insurance to cover mistakes has skyrocketed to the point that some doctors have chosen to leave the field altogether. Although there have been efforts to rein in malpractice suits in the name of “tort reform,” such efforts essentially amount to blaming the victim, rather than addressing how it is appropriate to compensate those who have lost loved ones or incurred significant pain and distress for their injuries.

Although the rules of evidence in many states prohibit using an apology as an admission of guilt in a legal proceeding, apologies still happen relatively rarely. Once potential defendants in a lawsuit consult with a lawyer, chances are good that they will be told not to say anything about the circumstances of the incident, and especially not to apologize. As the Times article points out,

For decades, malpractice lawyers and insurers have counseled doctors and hospitals to “deny and defend.” Many still warn clients that any admission of fault, or even expression of regret, is likely to invite litigation and imperil careers.

But according to this article, things may be changing. Some medical practices are experimenting with efforts to disclose medical errors more promptly, and to offer earnest apologies and fair compensation. And while their lawyers may have feared the worst, the sky has not fallen — not even close.

Despite some projections that disclosure would prompt a flood of lawsuits, hospitals are reporting decreases in their caseloads and savings in legal costs. Malpractice premiums have declined in some instances, though market forces may be partly responsible.

One hospital among the first to experiment with a full disclosure policy reports a decline in existing claims and lawsuits from 262 in August 2001 to 83 in August 2007.

Why such dramatic results? The lawyers involved with such cases understand that “what often transforms a reasonable patient into an indignant plaintiff is less an error than its concealment, and the victim’s concern that it will happen again.” This will sound familiar to many employment lawyers who represent employees as well.

Admittedly, employment law is different than medical malpractice. Rarely are the mistakes so cut-and-dried as ones where a doctor removes the wrong body part or sews up a patient after surgery with an object remaining inside. Medical malpractice doesn’t involve the question of intent, which is an important element of many types of employment cases. However, any employment lawyer will tell you that there are a high percentage of cases that would settle without any litigation if the boss would just offer an apology and an assurance that what happened to the employee will not happen again to others.

A pro-apology policy doesn’t mean an employer can’t defend its position aggressively when it feels it has done nothing wrong. In Michigan, where the state hospital system has adopted a full disclosure policy,

[T]rial lawyers have come to understand that [the hospital] will offer prompt and fair compensation for real negligence but will give no quarter in defending doctors when the hospital believes that the care was appropriate. “The filing of a lawsuit at the University of Michigan is now the last option, whereas with other hospitals it tends to be the first and only option,” said Norman D. Tucker, a trial lawyer in Southfield, Mich. “We might give cases a second look before filing because if it’s not going to settle quickly, tighten up your cinch. It’s probably going to be a long ride.”

A full disclosure and apology policy may be a way to separate the wheat from the chaff, and the very best kind of tort reform: one that actually works to fairly compensate injured plaintiffs and reduce the litigation costs for everyone involved. Now, if some employers and their lawyers would just adopt it as their official policy, we could see just how much those two simple words, “I’m sorry,” mean to someone who has suffered a wrong.

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