Labor & Employment Legal Update

UPDATE: Recent Georgia Law Creates Greater Enforceability of Non-Competition, Non-Solicitation and Non-Disclosure Agreements

By:  Daniel B. Gilmore

After we issued our update on this new law, the Chairman of the Georgia House Judiciary Committee announced that employers should assume that it does not go into effect until January 1, 2011.  Because the law itself stated that it went into effect immediately, anyone who is planning to enter into a restrictive covenant before the end of the year should take into consideration issues surrounding the effective date.  If you would like to discuss the drafting of such agreements, please contact any member of our Labor & Employment Law Group.

CB&S 2010 Labor & Employment Law Seminar

Please join us for our Annual Labor & Employment Law Seminar!

Thursday, December 2, 2010
Registration & Breakfast: 8:00 AM
Seminar: 8:30 AM - 12:00 noon
Chattanooga Convention Center

To Register: 
Email rsvp@cbslawfirm.com and include your name, company name and phone number.

EEOC Issues Final Regulations to Implement Title II of the Genetic Information Nondiscrimination Act of 2008

By:  Daniel B. Gilmore

Earlier this month, the Equal Employment Opportunity Commission (EEOC) issued its long-awaited final regulations implementing Title II of the Genetic Information Nondiscrimination Act (GINA) of 2008.  Significantly, GINA was the first legislative expansion of the EEOC’s jurisdiction since the passage of the Americans With Disabilities Act (ADA) in 1990. The regulations, found at 29 CFR Part 1635, will take effect on January 10, 2011.

Title II of GINA prohibits the use of genetic information in making employment decisions that impact both applicants and employees. It also restricts employers and other covered entities from requesting, requiring or purchasing genetic information; requires that genetic information must be maintained as a confidential medical record; and strictly limits disclosure of genetic information.  Finally, it provides remedies for individuals, including former employees, whose genetic information is acquired, used or disclosed in violation of GINA’s provisions.

Navigating GINA’s requirements

The final regulations include definitions and clarification of the following terms that are unique to GINA:

• Family members
• Family medical history
• Genetic information
• Genetic monitoring
• Genetic services
• Genetic test
• Manifestation or manifested.

They also outline six statutory exceptions to the prohibition on acquisition of genetic information:

• Inadvertent acquisition
• As part of a voluntary wellness program
• Family medical history for certification for FMLA or similar state or local family and medical leave, if applied equally to all similarly-situated employees
• From documents that are commercially and publicly available
• For use in the genetic monitoring of the biological effects of toxic substances in the workplace
• From employees of a forensic laboratory for quality control purposes in DNA analysis or human remains identification.

In additional to other useful guidance for employers, the final regulations:

• Establish a “safe harbor” provision for use when genetic information is lawfully received and the model (or similar) language is used
• Clarify that the exception for inadvertent acquisition of genetic information does not apply if the information results from “probing” questions prompted by a casual conversation
• Emphasize that the EEOC knows of no reason why genetic information would need to be requested in order to determine individuals' current physical or mental limitations, and whether they can be accommodated during the interactive process under the ADA or state or local law.

The EEOC's Fact Sheet on Title II of GINA is located at: www.eeoc.gov/laws/types/genetic.cfm.

If you have any questions concerning these final regulations, please contact Dan Gilmore or a member of Chambliss, Bahner & Stophel’s Labor and Employment Law Practice Group.