Virtual Hawaii Employment Lawyer

The Department of Transporation has issued new drug-testing regulations, effective October 1, 2010. The final rule is available at http://edocket.access.gpo.gov/2010/pdf/2010-20095.pdf.

Among other changes, DOT now requires testing for Ecstasy (“MDMA”). In addition, the test cutoff concentrations for cocaine have been lowered and initial testing for 6-acetylmorphine (“6-AM”), a metabolite of heroin

Also, DOT has revised its definitions of “adulterated specimen,” “confirmatory drug test,” “initial drug test,” “invalid drug test,” “laboratory” and “limit of detection.” It has also added definitions regarding “initial specimen validity test,” “limit of quantitation,” “negative result,” “positive result,” “reconfirmed,” “rejected for testing,” and “split specimen collection.”

Employers covered by DOT regulations should familiarize themselves with the new regulations and implement changes to their drug-testing procedures as appropriate and required by DOT.

The Americans with Disabilities Act Amendments Act, which went into effect on January 1, 2009, makes it easier for individuals to establish they have a disability within the meaning of the ADA.  The EEOC’s anticipated regulations will further clarify how courts are to interpret the meaning of disability.  Regardless of what the EEOC says in its final rules, many more employees will now fall under the ADA’s definition of disability, and employers will need to provide reasonable accommodations with greater frequency.  This article discusses reasonable accommodation issues employers need to address when dealing with disabled employees:  Reasonable Accommodation.

The Genetic Information Nondiscrimination Law of 2009 (“GINA”) is the first new federal discrimination law in decades. GINA makes illegal an employer’s mere acquisition of genetic information, which is defined broadly to include, among other things, information about manifested diseases of family members.

The Equal Employment Opportunity Commission (“EEOC”) has not decided whether GINA is violated where such information is obtained from “personal Web sites or social networking sites.” This issue is critical to employers that happen to obtain genetic information through Facebook, Twitter, or the numerous other social networking sites that have grown in popularity. The EEOC was supposed to have published regulations on Title II of the Act, which applies to employers, in May 2010. No such regulations have to date been published. I will let you know as soon as they are.

The U.S. Department of Labor today clarified the definition of “son and daughter” under the Family and Medical Leave Act. The guidance ensures that an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship.

Generally, the FMLA allows workers to take up to 12 weeks of unpaid leave during any 12-month period to care for loved ones or themselves. The 1993 law also allows employees to take time off for the adoption or the birth of a child.

The interpretation clarifies, for example, that an uncle who is caring for his young niece and nephew when their single parent has been called to active military duty may exercise his right to family leave. Likewise, a grandmother who assumes responsibility for her sick grandchild when her own child is debilitated will be able to seek family and medical leave from her employer. And an employee who intends to share in the parenting of a child with his or her same sex partner will be able to exercise the right to FMLA leave to bond with that child.

The press release announcing the issuance of the interpretation may be viewed here: DOL Clarifies FMLA Definition of \"Son and Daughter.\"

The U.S. Department of Labor published a final rule in the May 20 edition of the Federal Register requiring federal contractors and subcontractors to provide notice to their employees of their rights under the National Labor Relations Act.

Federal contractors and subcontractors will be required to post the prescribed employee rights notice at their workplaces.  The notice lists employees’ rights under the NLRA to form, join and assist a union and to bargain collectively with their employer; provides examples of unlawful employer and union conduct that interferes with those rights; and indicates how employees can contact the National Labor Relations Board, the federal agency that enforces those rights, with questions or complaints.

The rule implements provisions of Executive Order13496, which was signed by President Barack Obama on Jan. 30, 2009.  The requirement for posting this employee notice must be included in every covered federal contract and subcontract.

Under the rule, employees will have the right to file complaints with the Department of Labor about contractors that do not comply with the prescribed requirements. Contractors that violate the requirements of the regulations may be subject to sanctions, including suspension or cancellation of the contract. Two Labor Department agencies, OLMS and the Office of Federal Contract Compliance Programs, are responsible for administering and enforcing the rule’s requirements.  More information can be found here:  Notification of Employee Rights.

Stuart J. Ishimaru, Acting Chairman of the U.S. Equal Employment Opportunity Commission (EEOC), testified this morning before the Senate Health, Education, Labor and Pensions Committee in favor of the Paycheck Fairness Act.  You may view Ishimaru’s testimony here:  Statement by Ishimaru

Recent changes enacted as part of the Health Information Technology for Economic and Clinical Health Act (“HITECH”) and its implementing regulations require Covered Entities and their Business Associates to implement Security Breach Notification procedures and may require revisions to existing Business Associate Agreements (“BAAs”). HITECH was passed as part of the American Recovery and Reinvestment Act of 2009 (“ARRA”). The new requirements became effective September 23, 2009, following the publication of the Department of Health and Human Services (“DHHS”) Security Breach Notification Interim Final Rule (the Interim Rule) in August of 2009. Their enforcement begins on February 23, 2010.

HITECH requires Covered Entities to report to the affected patient, and in some cases to the Centers for Medicare and Medicaid Services(CMS) and/or the local media, any breach to the security of “unsecure” protected health information (“PHI”) held in electronic form. The law applies to Business Associates and BAAs are required to incorporate specific provisions of the law. Accordingly, all Covered Entities and Business Associates should review their BAAs and policies/procedures to ensure compliance with HITECH.

On January 13, 2010, the U.S. Department of Labor (“DOL”) issued new model COBRA notices that incorporate the changes from the Department of Defense Appropriations Act, 2010, which was signed into law by President Obama on December 19, 2009. The Act effectively extended COBRA benefits from nine to 15 months. The new notices can be found at http://www.dol.gov/ebsa/COBRAmodelnotice.html.

The new “Premium Assistance Extension Notice” should be sent to the following individuals: (1) Those who were “Assistance Eligible Individuals” and receiving the COBRA subsidy as of October 31, 2009; (2) those who were involuntarily terminated after October 31, 2009 and lost health benefits coverage, but have not been provided with the updated General Notice; and (3) those in a “transition period,” i.e., those whose COBRA subsidy ended because they had exhausted the original number of months (generally nine months), but are entitled to continue the subsidy to 15 months.

Employers should visit the the DOL and incorporate the new notice to the extent necessary and required by the law.

On December 21, 2009, President Obama signed legislation extending the COBRA premium subsidy established under the American Recovery and Reinvestment Act of 2009 (“ARRA”).  Originally under ARRA, individuals who were involuntarily terminated and who lost group health insurance coverage before December 31, 2009 were eligible to receive the subsidy for nine months of coverage. 

The new legislation extends federal COBRA health coverage cost subsidies for 6 additional months for a total of 15 months of subsidized coverage.  The extension applies to those COBRA beneficiaries whose nine-month premium subsidy under the ARRA had expired.  The legislation also extends the qualifying event deadline to February 28, 2010.  The legislation amends the ARRA provisions that required terminated employees to have been eligible for COBRA coverage by December 31, 2009.  Now, the terminated employee only must have been terminated by December 31, 2009, even if COBRA eligibility isn’t effective until some time in 2010.

The legislation also gives beneficiaries whose subsidy expired and who didn’t continue to pay the full unsubsidized premium the opportunity to receive retroactive subsidized coverage.

As of November 21, 2009, covered employers will be required to post information on the ban on employment discrimination based on genetic information contained in the Genetic Information Nondiscrimination Act of 2008 (“GINA”).  GINA prohibits employers from discriminating against applicants and employees based on genetic information.  The law also restricts employers’ acquisition and disclosure of genetic information.  The employment provisions of GINA apply to private and state and local government employers with 15 or more employees, employment agencies, labor unions, and joint labor-management training programs.  They also cover Congress and federal executive branch agencies.

The Equal Employment Opportunity Commission (EEOC) has approved a proposed final rule implementing the employment nondiscrimination provisions and has revised its “Equal Employment Opportunity is the Law” poster to add information about GINA.  The revised poster also includes updates from the Department of Labor.  Employers may obtain the EEOC’s approved posting at www.eeoc.gov.

Hawaii law, HRS Chapter 378, already makes it illegal to discriminate against anyone based on a “disability.”  “Genetic information” is classified as a diability in Hawaii and “includes but is not limited to employer consdieration of an individual’s genetic information, including genetic information of any family member of an individual, or the individual’s refusal to submit to a genetic test as a condition of initial or continued employment.” Read more…

At the request of Members of Congress, the Federal Trade Commission is delaying enforcement of the “Red Flags” Rule until June 1, 2010, for financial institutions and creditors subject to enforcement by the FTC.  The announcement can be viewed here: Deadline Extended.

The Rule was promulgated under the Fair and Accurate Credit Transactions Act, in which Congress directed the Commission and other agencies to develop regulations requiring “creditors” and “financial institutions” to address the risk of identity theft. The resulting Red Flags Rule requires all such entities that have “covered accounts” to develop and implement written identity theft prevention programs to help identify, detect, and respond to patterns, practices, or specific activities – known as “red flags” – that could indicate identity theft.

The Commission previously delayed the enforcement of the Rule for entities under its jurisdiction until November 1, 2009. The Commission staff has continued to provide guidance to entities within its jurisdiction, both through materials posted on the dedicated Red Flags Rule Web site (www.ftc.gov/redflagsrule), and in speeches and participation in seminars, conferences and other training events to numerous groups.

On September 23, 2009, the EEOC published in the Federal Register proposed regulations and interpretive guidance in response to the ADA Amendments Act of 2008 (“ADAA”).  The Americans with Disabilities Act (“ADA”), an antidiscrimination statute, was signed into law in July 1990.  The EEOC is responsible for enforcing Title I of the ADA, which prohibits employment discrimination against individuals with disabilities.  You can view a copy of a press release regarding the proposed regulations here:  http://www.eeoc.gov/press/9-16-09f.html. Read more…

On August 24, 2009, the Department of Health and Human Services (“HHS”) issued its interim final rule with regard to breach notification requirements for unsecured protected health information.  Under the Health Information Technology for Economic and Clinical Health (“HITECH”) Act, which is part of the American Recovery and Reinvestment Act of 2009 (“ARRA”).  HHS was required to issue interim final regulations regarding notification provisions in the event of a breach of unsecured protected health information.  Covered entities and their business associates (service providers to covered entities) only have 30 days after publication (or until September 23, 2009) to comply with these new rules. Read more…

A new website lauding President Obama’s healthcare reform package has been launched.  According to emails sent by David Axelrod, the President’s Senior Advisor:

“Anyone that’s watched the news in the past few days knows that health insurance reform is a hot topic — and that rumors and scare tactics have only increased as more people engage with the issue. Given a lot of the outrageous claims floating around, it’s time to make sure everyone knows the facts about the security and stability you get with health insurance reform.”

The site may be accessed here:  Health Insurance Reform Site.

On July 8, 2009, Department of Homeland Security (“DHS”) Secretary Janet Napolitano announced the Administration’s support for a regulation that will award federal contracts only to employers who use E-Verify to check employee work authorization. The release may be found here: http://www.dhs.gov/ynews/releases/pr_1247063976814.shtm Read more…

On June 17, 2009, the U.S. Equal Employment Opportunity Commission (“EEOC”) voted to revise its regulations on the Americans with Disabilities Act (“ADA”) to reflect changes made by the ADA Amendments Act (“ADAAA”) of 2008.

The ADAAA, which became effective on January, 1, 2009, makes it easier for individuals seeking protection under the ADA to establish that they have a “disability.”   The EEOC’s proposed regulations will be reviewed by other federal agencies. Upon the completion of the review, the public will have an opportunity to submit comments. Read more…

H.R. 1874 would provide Federal contracting preferences for and a reduction in the rate of income tax imposed on Patriot corporations.

The bill’s stated purpose is “to provide Federal contracting preferences for, and a reduction in the rate of income tax imposed on, Patriot corporations, and for other purposes.”

If passed, the potential impact would be to increase successful union organizing drives as the corporation must maintain at all times during the taxable year “neutrality in employee organizing drives and [have] in effect a policy to that effect.”

Read more here:  http://www.washingtonwatch.com/bills/show/111_HR_1874.html

On May 22, 2009, President Obama signed into law H.R. 627, the Credit Card Accountability Responsibility and Disclosure Act of 2009 or the Credit CARD Act of 2009, which amends the Truth in Lending Act by establishing new and revised fair and transparent practices relating to the extension of consumer credit.
Read more…

The U.S. Equal Employment Opportunity Commission (“EEOC”) voted on June 17, 2009, to revise its regulations to conform to changes made by the ADA Amendments Act of 2008 which generally lowers the threshold for establishing that an individual is disabled within the meaning of the statute. President George Bush last September 2008 signed the ADA Amendments Act.

The Americans with Disabilities Act (“ADA”), an antidiscrimination statute, was signed into law in July 1990. The EEOC is responsible for enforcing Title I of the ADA, which prohibits employment discrimination against individuals with disabilities.

The statute requires employers to make reasonable accommodations to employees and job applicants with disabilities—defined as people with mental or physical impairments that substantially limit a major life activity, persons with a record of a disability, or who, while not actually disabled, are regarded as disabled.

The two Democrat appointees, Acting Chairman Stuart Ishimaru and Acting Vice-Chair Christine Griffin voted in favor, and the Republican, Commissioner Constance Barker, voted against the proposed regulations for a 2-1 vote.

The revisions will be reviewed by other agencies, including the Department of Transportation, the Justice Department and the Office of Management and Budget. The proposed changes then will be returned to the EEOC for further review and released to the public for comment.

Stay tuned for more information on the specific regulations approved by the EEOC.

http://www.eeoc.gov/press/6-17-09.html.