September 08, 2015
Under the Genetic Information Nondisclosure Act, employers are placed on a “need not to know” basis when it comes to the health of its employees. On the other hand, employers have an obligation under the Americans with Disabilities Act to accommodate disabilities, in some cases even being responsible for recognizing disabilities that the employee may not realize he or she has. Similarly, if an employer
identifies a medical condition that may be eligible for FMLA leave, that the employee is not similarly aware cannot be used by the employer to avoid providing FMLA benefits. As you can imagine, these laws sometimes conflict.
A trend has emerged in the last 10 years to expand the areas of disability discrimination. When the ADA was originally enacted, the focus was major disabilities: eyesight, hearing, walking, and other major life activities. Today, almost any physical or mental impairment can rise to the level of the disability. Even if it does not rise to the level of a disability, it can be problematic if the employee can demonstrate that the employer perceives the condition as a disability. Perception is just as protected under the ADA as an actual disability.
Individuals with difficult personalities or personality quirks are now alleging that they are perceived as having a mental disability. Calling someone “crazy” is the first step to that employee proving that his employer perceives him as having a mental disability. Anyone with a physical restriction, permanent or temporary, can now argue that he or she has a disability.
Once the employee is identified as having a mental or physical impairment under the ADA, issues arise when that employee starts missing time. Should that time be counted as leave under the FMLA? Should the employer identify the leave as FMLA leave? Is time off a reasonable accommodation, even if it is not covered by the FMLA? All of these questions need to be answered, and the more complicated the disability, or
alleged disability, the more difficult it is to answer those questions.
Under GINA, once the employer has information concerning the physical or mental condition of an employee, there are disclosure restrictions, and the employer cannot make decisions based on genetic information. Again, this is an instance where I am sure that Congress did not intend to prevent employers from asking employees about their health, in purely a social way, but that seems to be one of the logical consequences.