1. An employer can ask an employee if he/she would be unavailable for work under non-disability-related conditions, such as care for a child in the event of a school closing or care for other dependents.  The question must be stated in a way that will allow the employee to answer “yes” or “no” without specifying anything further.
2. An employer can send an employee home if the employee shows flu-like symptoms.  Such an action is not ADA-related.  The action would also be permitted under the ADA if the employee’s illness posed a direct threat.  The employer can ask the employee if he/she has symptoms, but must retain all information concerning the illness in strict confidentiality in compliance with the ADA.
3. Employers can ask employees to telecommute instead of coming to the workplace during a pandemic.
4. An employer may NOT mandate a flu vaccination regardless of religious beliefs or medical conditions.  Employers are better served to simply encouraging their employees to get the vaccine.
5. Employers may require post-offer medical examinations to determine overall health, as long as the standard is applied consistently to all new hires.

The Act, passed in January 2009, overturned the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618(2007), which allowed a person 180 days to bring a charge of compensation discrimination, 300 days if the charge is also covered by a state anti-discrimination law.  The revised statute designates the receipt of a “discriminatory paycheck,” one that reflects a discriminatory decision or practice, as the start date of the statute of limitations. 

The statute of limitations begins when any of the following events occur:

• The employer adopts a discriminatory decision or practice affecting compensation;
• The individual becomes subject to the decision or practice; or
• The individual is otherwise affected by the discriminatory decision or practice.

Under the “continuing violation theory,” each new paycheck is a separate event and starts a new tolling of the statute of limitations.

Employers should review their pay practices to remedy any potential discriminatory pay practices and prevent such events from occurring in the future.

 The revised section of the Compliance Manual can be found in the Compensation Discrimination section 2-IV C.4.

The statute protects genetic information of individuals and their family members, as well as fetuses and legally held embryos by the individual or family member.

The statute defines a genetic test as an “analysis of human DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or chromosomal changes.”* Routine tests, such as blood or cholesterol tests, are not protected under GINA.

Employers should review their harassment policies to ensure genetic information is addressed.

*See http://www.genome.gov/Pages/PolicyEthics/GeneticDiscrimination/GINAInfoDoc.pdf

The statute can be found at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_public_laws&docid=f:publ233.110.pdf