Everything You Need To Know About New York’s New Sexual Harassment Legislation

On April 13, 2018, Governor Cuomo signed legislation with new provisions to address sexual harassment in the workplace, educational institutions, and public accommodations, among other places, by changing the State’s Human Rights Law.  These new provisions apply to all New York employers regardless of size or the number of employees.  In addition, each provision has its own effective date, with several provisions heaving already taken effect. As such, employers must work to ensure their timely compliance

As set forth below, the new legislation requires employers to adopt a sexual harassment policy that meets certain minimum standards, to regularly provide sexual harassment training to employees, and generally prohibits mandatory arbitration clauses and non-disclosure agreements relating to sexual harassment except in specific and limited circumstances.  To aid employers with meeting the new regulations, the State has created an employer toolkit with links to a model policy, model training documents, and other related forms.

If your organization is concerned about complying with these requirements, the Law Offices of Mark A. Cuthbertson are well-equipped to assist you, whether by providing employee training or drafting/revising your organization’s sexual harassment policy.  For more information, contact Mark Cuthbertson at mcuthbertson@cuthbertsonlaw.com.

I. Sexual Harassment Prevention Policy

As of October 9, 2018, all New York employers are required to have a written sexual harassment prevention policy and provide it to all employees in writing or electronically.  If provided electronically, the employees must be able to access the policy on a computer provided by the employer during work hours and print a copy for their records.  While the State does not require that employers obtain a signed acknowledgment from their employees, the practice is encouraged as providing evidence of compliance.

As to the substance of the policy, a company’s sexual harassment prevention policy must:

  • Prohibit sexual harassment, provide a definition for same, and give examples of prohibited conduct that would constitute unlawful sexual harassment;
  • Clearly state that non-employees (contactors, interns, vendors, consultants, etc.), are also covered by the policy and are protected from sexual harassment;
  • Provide information about state and federal sexual harassment laws and the remedies available, and a statement that there may be applicable local laws;
  • Describe a procedure for the timely (“as soon as possible”) investigation of complaints and keep investigation-related documents in a “confidential location”;
  • Require that written investigation documents include “the basis for the decision” regarding the resolution of the complaint;
  • Inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints, either administratively or judicially;
  • Clearly state that sexual harassment is a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and supervisory and managerial personnel who knowingly allow such behavior; and
  • Clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful.

While including some formulation of these provisions is mandatory in every sexual harassment policy, the law does not prohibit employers from including additional provisions that go beyond the baseline established by the State’s model policy.  Common examples of additional provisions include a warning that false and malicious accusations may result in disciplinary action, a statement that investigations will be handled as confidentially as possible, and policies about fraternization and employee dating.  It is also common for sexual harassment policies to include broader anti-discrimination provisions addressing race, gender, age, and/or disability.

Finally, employers are required to have a complaint form for employees to use when reporting incidents of sexual harassment (a model form prepared by the State is included in the employer toolkit linked above).  While this was originally required to be a part of the sexual harassment policy itself, a revision after the public comment period now permits employers to simply inform employees of where the form maybe found (ex: company website).

II. Sexual Harassment Training

Under the new legislation, employers are required to ensure that all employees, including full-time, part-time, seasonal, and temporary employees, receive sexual harassment training by October 9, 2019, and at least once per year thereafter.  This includes employees who work a portion of their time in new York State, even if based in another state.  Employees who start their employment after October 9, 2019 must complete their sexual harassment training as soon as possible after their start date.  If an employee fails or refuses to take the training, employers are empowered to use administrative remedies to ensure compliance.

The training program itself can consist of a model program developed by the State or comparable training that meets the same minimum standards.  While live training is not required, the training must be “interactive,” i.e. require some form of employee participation.  This can be satisfied in several ways, such as (1) online programs that ask employees questions (which the employer answers correctly), (2) programs that allow employees to submit questions and get a timely response, (3) having a live trainer (either in-person, by phone or video conference, etc.) answer questions, and/or (4) requiring feedback from employees about the training and materials provided.  Training for supervisors or managers should also address the added responsibility for individuals in those roles.  Notably, there is no minimum number of training hours per year or per training session.

Finally, training must be specific to the standards and company practices of each employer.  As such, an employee’s training from a prior employer in the same calendar year will only suffice where both employers used the same unmodified state training model, or provide training from another shared source (e.g., a training program provided by a shared union).

III. Mandatory Arbitration

As of July 11, 2018, New York prohibits all new contracts from including mandatory arbitration clauses, i.e. clauses that require the parties to submit any dispute relating to binding arbitration prior to the commencement of any legal action, for sexual harassment claims.  One exception is collective bargaining agreements, which the law provides will be controlling in the event of a conflict with the new law.  This provision, codified in CPLR § 7515, does not prohibit the use of mandatory arbitration for other types of claims as part of a contractual agreement.

IV. Non-Disclosure Agreements

As of July 11, 2018, employers are prohibited from including or agreeing to terms in any resolution of a claim involving sexual harassment that would prevent the complainant from disclosing the underlying facts and circumstances of the harassment, unless the complainant indicates a preference for such a non-disclosure provision.

To establish that the complainant’s preference, the complainant must be given twenty-one days to consider the terms of any settlement agreement.  After twenty-one days, if the claimant wishes to include a non-disclosure provision, it must be memorialized in an agreement signed by all parties.  The claimant then has seven days to revoke the agreement, with the agreement only becoming effective after the revocation period expires.  Notably, the employer may still propose the inclusion of a non-disclosure provision, provided that the above process is followed.  

V. State Employees

Any individual elected, appointed, or employed by the State who has been subject to a final judgment of personal liability for intentional wrongdoing in a sexual harassment claim that resulted in an adjudicated award shall reimburse any state agency or entity that made a payment to a plaintiff on the individual’s behalf for his/her share of the judgment within 90 days of such payment.  The law also has similar provisions for commissioners, members of public boards or commissions, trustees, directors, officers, employees, or any other person holding a position by election, appointment, or employment in a public entity.  This took effect when the law was signed by Governor Cuomo on April 13, 2018.

VI. State Contractors

Bids for state contracts, including public departments or agencies thereof, where competitive bidding is required by law, will require the bidder and each signatory to certify under penalty of perjury that they have a written policy (compliant with the new law) addressing sexual harassment and that they provide annual sexual harassment prevention training.  This takes effect January 1, 2019.

Second Department Affirms Denial of Takings Claims Against Town

Plaintiff owned vacant property in the Town of Wappinger (“Town”), sitting at the end of a private road traversing a bridge.  Plaintiff applied for a building permit to construct a new house on the property, but the Town denied the application as there was no legal access to the property as required by Town Law § 280–a and the analogous § 240–20 of the Code of the Town of Wappinger, since the road and the bridge were in such disrepair as to be virtually impassable. Plaintiff then brought an action against the Town, the Town’s code enforcement officer (“CEO”), and the Town’s zoning board of appeals (“ZBA”) for a declaratory judgment that state and local provisions requiring legal access to the property did not apply. The lower court denied Plaintiff’s motion for summary judgment and granted defendants’ cross motion, holding that the proposed construction was governed by Town Law § 280–a(1), and  Plaintiff appealed.

On appeal, the Appellate Division, Second Department held that despite Plaintiff’s claims, application of the statute did not produce a result that was absurd, unjust, or at odds with its facially evident purpose. In fact, it found that the plain language of § 280–a was unambiguous and, therefore, there was no basis to consider extrinsic materials to determine the legislature’s intent in enacting the statute. Moreover, even if extrinsic evidence were considered, the legislative history did not support Plaintiff’s claim that his proposed construction was outside the intended scope of the statute. Finally, the Court held Plaintiff failed to make a prima facie showing that application of § 280–a deprived him of a vested right to construct the new house.  As such, Plaintiff could not show damages for a categorical regulatory taking based on the denial of all economically beneficial use of the property without just compensation.

Thus, the Court remitted the matter to the Supreme Court, Dutchess County, for a declaration that the provisions of Town Law § 280–a and Code of the Town of Wappinger § 240–20 applied to the proposed construction of a dwelling on the subject property.

The case was Kellner v. Town of Wappinger, 145 A.D.3d 676 (2d Dep’t 2016).

NYC Scores Big Wins In Crackdown On Illegal Hotels After AirBnB Settlement

New York City recently scored two big wins in its long and high-profile battle against illegal hotels operating in the City, securing a $1.2 million settlement from real estate owner Salim “Solly” Assa, and a separate $1 million settlement with landlords Majid and Hamid Kermanshah.  All three had been accused of listing apartments in the buildings they owned as short-term rentals, operating de facto commercial hotels out of the buildings.  

The case of Assa, who owns four buildings in midtown Manhattan, is also significant for the terms other than the monetary settlement.  NYC had taken legal action against Assa following his failure to answer roughly 100 notices of violation, and alleged that he had entered into business partnership with two brothers who would rent out the apartments at his properties.  Though Assa denied any knowledge of wrongdoing, he agreed as part of the setttlement that his four buildings would be overseen by the City and an independent property manager for the next three years.

These two settlements are emblematic of NYC’s approach to regulating short-term rentals following its December 2016 settlement of AirBnb lawsuit over NYC’s new short-term rental advertising law.  AirBnb had sued to block the law, which imposed fines of up to $7,500 on hosts who advertised illegal short-term rentals on platforms such as AirBnB, out of concerns it would impose criminal liability on third-party platforms like AirBnB.  AirBnB agreed to drop the lawsuit after NYC agreed that the law would not be enforced against the company, but only against individual violators.  Since then, the mayor’s Office of Special Enforcement has emphasized large-scale commercial enterprises, with these two settlements representing the largest penalties.  

Paid Family Leave Begins In New York; Employers Must Begin Payroll Deductions

In 2016, New York State enacted a law providing for Paid Family Leave for eligible employees under qualifying circumstances. The program, which begins January 1, 2018 provides eligible employees with wage replacement to help them bond with a child, care for a close relative with a serious health condition, or help relieve family pressures when someone is called to active military service.  In addition, employees who take leave are also guaranteed to be able to return to their job and continue their health insurance, though he/she must continue to pay his/her portion of the premium cost while on leave.  Collection of the payroll deductions by which the program is funded began on July 1, 2017.

How Paid Family Leave Funded?

Paid Family Leave coverage will be included under the disability policy all employers are required to carry, however the premium will be fully funded by employees through payroll deductions.  These deductions, which began on July 1, 2017 are equal to .126% of the gross weekly wage, capped at the statewide wage of $1,305.92.  A new maximum rate of employees’ contribution will be set by New York State each year.

Notably, the deduction is mandatory for Full-Time and Part-Time Employees.  Seasonal and Temporary employees are not eligible and can opt out if they will not meet the eligibility requirements (discussed below) in a year.

Who Is Eligible For Paid Family Leave?

Nearly every full-time or part-time private employee in New York State is eligible for Paid Family Leave, and participation in the program is not optional such employees.  Full-time employees are eligible for the program after 26 weeks of being hired, while part-time employees are eligible for the program after 175 days of being hired.  Seasonal or temporary workers may opt out of the program unless their assignment will be for at least 26 continuous weeks or 175 days.

Furthermore, unlike the federal Family Medical Leave Act, employers are prohibited from requiring that employees take all of their sick leave and/or vacation before using Paid Family Leave.  Employees who wish to receive full pay while on Paid Family Leave may be still utilize their available sick or vacation leave, but this is not required to take leave.

Under What Circumstances May Leave Be Taken?

As described more fully below, leave may be taken to help a parent bond with a child, to care for a close relative with a serious health condition, or help relieve family pressures when someone is called to active military service.  However, Paid Family Leave may not be used for an employee’s own disability or qualifying military event.

Maternity and Paternity Leave

Employees who are expecting, fostering or adopting a child, may be entitled to take time to care for and bond with their child. With proper documentation, eligible employees may be eligible for up to eight (8) weeks of Paid Family Leave (rising to  12 weeks by 2021). Paid Family Leave only begins after birth and is not available for prenatal conditions. An eligible employee may take Paid Family Leave during the first 12 months following the birth, adoption, or fostering of a child.

Caring for a Close Relative with a Serious Health Condition

Employees who need to care for a close relative suffering from a serious health condition may be eligible for Paid Family Leave commencing in 2018.  A close relative includes one’s spouse, domestic partner, child, parent, parent in-law, grandparent, or grandchild.

With respect to qualifying medical conditions, a serious health condition is any illness, injury, impairment, or physical or mental condition that involves either in-patient care in a hospital, hospice, or residential health care facility; or continuing treatment or continuing supervision by a health care provider.

Active Duty Deployment

Paid Family Leave is available for employees eligible for time off under the military provisions in the federal Family Medical Leave Act when a spouse, child, domestic partner or parent of the employee is on active duty or has been notified of an impending call or order of active duty.

How Much Leave Is Available And At What Rate?

The Paid Family Leave will phase in over a four-year period commencing on January 1, 2018, as shown below:


Weeks Available

Max % of Employee Average Weekly Wage

Cap % of State Average Weekly Wage

















For example, in 2018, an employee making $1000 a week would receive a benefit of $500 a week (50% of $1000), while an employee making $2,000 a week would receive $648 a week, or half of New York State's Average Weekly Wage (NYSAWW).  The NYSAWW, currently $1,296, will be set every year after a comprehensive analysis by the New York State Department of Labor.  Employees may take the maximum benefit length, as shown above, in any given 52-week period. The 52-week clock starts on the first day the employee takes Paid Family Leave.

What Should Employers Do Now?

After familiarizing themselves with the new law, employers should also take steps to notify employees of the law and its benefits, as well as the new payroll deduction.  Employers should also update their employee handbooks to ensure they conform with the new law, and coordinate with the payroll department so that the required deductions are being withheld.

Airbnb Reaches Settlement With New York City Over Challenge To Rental Law

On December 2, 2016, Airbnb entered into a tentative settlement agreement with New York City in its legal challenge to the City’s short-term rental law.  The law at issue, signed into law by Governor Cuomo in October 2016, imposes fines as high as $7,500 for illegally listing a short-term (less than 30 day) home rental in a multi-family building unless the host is present.  The law’s intended targets were individuals who rent multiple apartments in the City, only to turn around and repeatedly rent them out through Airbnb.  Critics allege that this practice, which is technically operation of an illegal hotel, has reduced the availability of affordable housing in the City.  Airbnb brought an action challenging the law shortly after passage, arguing it was vague with respect to whether the host or Airbnb would be subject to the fine.

Under the terms of the agreement, which became official on December 5, 2016, Airbnb agreed to drop its lawsuit in exchange for an agreement that the City would limit the imposition of fines to hosts, and not Airbnb itself.  In addition, the New York State Attorney General agreed that enforcement of the law would be left to New York City.  For its part, Airbnb further vowed stricter enforcement of its newly announced “One Host, One Home” policy, which prohibits users from listing more than one property on the site.  

Though some have framed this agreement as a capitulation by Airbnb, the agreement is in many ways a win-win scenario for both parties.  Airbnb users in New York City generated nearly $1 billion worth of bookings last year, of which Airbnb takes between 6% and 12% in fees (depending on the price of the booking). By making this agreement, Airbnb protects that important revenue stream, while ensuring it will not be subject to heavy fines under the new law for illegal conduct by its users.  At the same time, the government gets to notch a victory and end a practice that has caused outrage among tenants rights groups.

New Overtime Rule's Future In Doubt Following Texas Court Ruling

On November 22, 2016, Judge Amos Mazzant of the Eastern District of Texas issued a nationwide preliminary injunction blocking the U.S. Department of Labor's new overtime rule from taking effect on December 1, 2016.  The new rule would have raised the minimum salary threshold for the white-collar exemption to $47,475, expanding overtime eligibility to roughly 4.2 million additional workers nationwide.  Judge Mazzant's ruling and the attitude of the incoming Republican Congress leave the future of this rule in doubt.

Judge Mazzant's preliminary injunction arose from a lawsuit filed by 21 state attorneys general and a coalition of business groups who sued to block the new overtime rule as exceeding the Department of Labor's authority.  In his decision, Judge Mazzant found that minimum salary test, which has been in effect since the 1940s, supplants the duties test for the executive, administrative and professional (i.e. "white-collar") exemption. Thus, based upon the plain text of the statute, the Court concluded that "[i]f Congress intended the salary requirement to supplant the duties test, then Congress, and not the Department, should make that change."

Though the preliminary injunction is temporary, it signals trouble for the future of the new overtime rule.  If the rule is struck down, as the initial ruling suggests it might, the appeal would be heard by the conservative 5th Circuit Court of Appeals.  In addition, Republican Congressional leadership has suggested that Congress will use the Congressional Review Act to permanently block the rule come mid-January.  Either way, employers who have given raises or made changes in advance of the new rule now find themselves the difficult position of deciding how to move forward.

New York employers should be aware that the New York Department of Labor has proposed state-level increases to the minimum salary level for executive and administrative exempt employees.  These regulations are expected to be finalized next month and take effect December 31, 2016.

Second Circuit Holds HR Managers Can Be Personally Liable In FMLA Retaliation Claims, Part II

This is a continuation of our previous post, discussing a FMLA retaliation claim brought by an employee who was allegedly terminated for failing to meet the documentary requirements of the FMLA, and her subsequent claim against her former employer, supervisor, and the company’s HR director.  Please refer to our last post for the background of this case, as this post will focus on the Second Circuit’s subsequent reversal of the District Court’s grant of summary judgment for the Defendants.

With respect to individual liability for the HR director (Plaintiff did not challenge dismissal of the claims against her supervisor), the Second Circuit noted that the FMLA defines an “employer” as “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.”  While the Second Circuit has not examined this clause directly, its sister courts have found that the FMLA definition tracks with the Fair Labor Standards Act definition.  The Second Circuit concurred, and applied the “economic-reality test.”   Under this test, courts ask “whether the alleged employer possessed the power to control the worker [ ] in question, with an eye to the ‘economic reality’ presented by the facts of each case,” based upon factors including “whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.”  Applying these factors, the Second Circuit held there was substantial evidence from which a rational trier of fact could find that the HR director was an “employer,” vacating the District Court’s dismissal of the individual liability claims.  Specifically, the Court noted the substantial delegation of power from the company president regarding the decision to fire Plaintiff to the HR director, the HR director’s control over Plaintiff’s schedule to the extent she determined the conditions for Plaintiff’s return from FMLA leave, and the HR director’s extensive and exclusive communication with Plaintiff regarding the dispute with the company.

This decision was also notable as the Court formally adopted the prima facie standard for FMLA interference used by the District Courts.  Under this standard, to prevail on a claim of interference with FMLA rights, “a plaintiff must establish: 1) that she is an eligible employee under the FMLA; 2) that the defendant is an employer as defined by the FMLA; 3) that she was entitled to take leave under the FMLA; 4) that she gave notice to the defendant of her intention to take leave; and 5) that she was denied benefits to which she was entitled under the FMLA.”  Applied to the facts of the instant case, the Second Circuit found that there were material questions of fact with respect to factors three and four.  Accordingly, it held that dismissal was inappropriate and vacated the decision.

The case is Graziadio v. Culinary Institute of America, 817 F.3d 415 (2d Cir. 2016).

Second Circuit Holds HR Managers Can Be Personally Liable In FMLA Retaliation Claims

Generally speaking, the Family Medical Leave Act (“FMLA”) (29 U.S.C. §§ 2601 et seq.) allows employees to take leave from their employment to care for family members under a variety of circumstances.  This case addresses an employee who was allegedly terminated for failing to meet the documentary requirements of the FMLA, and her subsequent claim against her former employer, supervisor, and the company's HR director.

On June 6, 2012, Plaintiff informed her supervisor she would be taking leave to care for her hospitalized son, and requested that the employee who processed FMLA documentation to send her the necessary paperwork.  Plaintiff returned to work on June 18, 2012, and submitted medical certification for her need to leave on or about June 27, 2012.  That same day, Plaintiff’s other son broke his leg and underwent surgery. Plaintiff again informed her manager she would be taking leave and expected to return on July 9, “at least part time.” On July 9, Plaintiff’s supervisor asked for an update, and Plaintiff responded that she would need to work a reduced, three-day week schedule until mid-to-late August, and could start on July 12. Plaintiff also asked if she needed to provide “any further documentation.” At this point, the supervisor contacted the HR director for advice.  On July 17, the HR director informed Plaintiff her current documentation was insufficient, giving her one week to update it, but did not answer Plaintiff’s emails seeking clarification on what “paperwork” was needed.  Finally, the HR director said that an in-person needing was necessary, yet despite claiming to be “available whenever,” refused to agree to any specific dates Plaintiff proposed.  In August, Plaintiff hired an attorney, who was told the company’s position was “it was not the employer's obligation to explain what was missing from the paperwork,” but the employee’s responsibility to comply with the statute.  On September 11, 2012, Plaintiff was informed that her employment had been terminated for abandoning her position, claiming that she had been told “to contact your supervisor to arrange a return to work date․ Based on the fact that you have not contacted your supervisor to arrange to return to work as of the date of this letter, it is obvious to us that you do not want to return to work.” 

Plaintiff filed suit in federal court against the company, her supervisor, and the HR director for interference with FMLA leave, and FMLA retaliation.  The District Court granted summary judgment to the Defendants on all claims, holding (1) the supervisor and HR director were not an “employer” subject to individual liability under the FMLA, (2) Plaintiff could not sustain FMLA interference because she had not been denied leave to care for her older son, and, having failed to submit a medical certification form, had no entitlement to care for the younger son, and (3) Defendants offered legitimate reasons to terminate Plaintiff and Plaintiff had not demonstrated these reasons were pre-textual.  Plaintiff appealed, and the Second Circuit vacated the grant of summary judgment on the FMLA claims.

Our next post will look at the Second Circuit’s reasoning.  The case is Graziadio v. Culinary Institute of America, 817 F.3d 415 (2d Cir. 2016).

Appellate Division Reaffirms The Strict Application of Faithless Servant Doctrine

The faithless servant doctrine has been a fixture of New York jurisprudence for over a century. This doctrine requires that an employee be loyal to his or her employer, and prohibits the employee from acting in a manner that violates the employer’s trust or in bad faith.  Should an employee breach this common law duty of loyalty and repeatedly commit disloyal acts (ex: theft, falsifying time records, etc.), he or she may be subject to “complete and permanent forfeiture of compensation, deferred or otherwise.”

Here, Defendant employed by Plaintiff as the Director of Parks and Recreation, and was responsible for the collection of various fees on Plaintiff’s behalf.  In April 2014, Defendant pleaded guilty to grand larceny in the third degree, having stolen more than $50,000 over the course of nearly six years. Thereafter, Plaintiff commenced the instant action to recover all compensation paid to the Defendant during that period and a declaration that Plaintiff had no obligation to continue providing health insurance. The Supreme Court granted summary judgment on the issue of liability, but concluded triable issues of fact remained as to Plaintiff's entitlement to damages under the faithless servant doctrine, noting Defendant’s “otherwise ‘unblemished’ 35 years of service.  Plaintiff appealed.  

On appeal, the Appellate Division, Third Department reversed, holding that “forfeiture of compensation is required even when some or all of the services were beneficial to the principal or the principal suffered no provable damage as a result of the breach of fidelity by the agent.” As there as conclusive proof that Defendant had stolen over $50,000 during the six-year span, Plaintiff was entitled to recover damages.  In addition, there is no basis for apportioning the forfeiture to the specific tasks about which Defendant was disloyal where payment was not made on a task-by-task basis pursuant to a contractual agreement. Thus, for a salaried employer such as the Defendant, forfeiture encompasses all compensation earned by the Defendant during the period in which he was disloyal (here, $316,535.54).

Should you find yourself in a situation where an employee has consistently acted in bad faith towards you and your business, whether through theft, embezzlement, falsifying records, or other misdeeds, the faithless servant doctrine may be a way to recoup the losses you’ve suffered.

The case was City of Binghamton v. Whalen, 32 N.Y.S.3d 727 (3d Dep’t 2016).

Complying With New EEOC Regulations Governing Employer Wellness Programs, Part 2

This is a continuation of our post from two weeks ago, which looked at the new regulations issued by EEOC (“Final Rule”) on wellness programs.  Whereas the previous post looked at the Americans with Disabilities Act (“ADA”), this post will focus on changes related to the Genetic Information Nondiscrimination Act (“GINA).  Finally, as noted in our prior post, the Final Rule is effective immediately, but employers have until the first day of an employer’s plan year beginning on or after January 1, 2017 to comply with the amended notice and incentive provisions.

Generally speaking, GINA prohibits employers from requesting, requiring or purchasing genetic information from their employees, except in the context of a voluntary wellness program that does not condition employee inducements on the provision of genetic information.  However, there was some ambiguity as to how the law treated inquiries regarding employee’s family members in the context of an employer-sponsored wellness plan.

Under the Final Rule, employers may offer a limited inducement to an employee whose spouse provides information regarding the spouse’s manifestation of any diseases or disorders as part of a health risk assessment (subject to the same limitations discussed in the previous post regarding the ADA).  The maximum value of an inducement for a spouse’s participation is 30% of the total cost of self-only coverage (the same incentive that may be given to the employee).  However, employers still may not offer an inducement for the employee’s spouse or children to provide genetic information, nor for information about the manifestation of disease or disorder by an employee’s children.

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