New Regulations Effective this Month: GINA

Blog Post by Anna M. Pepelnjak

GINA REGULATIONS

In November, 2010, the EEOC issued the regulations implementing the Genetic Information Nondiscrimination Act (GINA). The regs became effective January 9, 2011.

Under GINA’s main provisions:

  1. Employers are prohibited from using genetic information in making employment decisions;
  2. The disclosure of genetic information is severely limited and
  3. Discrimination, harassment and retaliation related to genetic information are forbidden.

Some Highlights of the regulations:

Safe Harbor Model Language:   Employers should include the following language in medical exam/inquiry forms:

“The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information,’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.”

No “Request, Require or Purchase”.   Except for some narrow exceptions, employers may not ask for, demand or buy genetic information of an individual or family member of the individual.

  1. Request” includes internet searches, if they are “likely to result in obtaining genetic information.”
  2. “Actively listening to third-party conversations” Employers are prohibited from these activities if they are done for “the purpose of obtaining genetic information.”
  3. “Making requests for information about an individual’s current health status” is forbidden if it is done “in a way that is likely to result in [the employer] obtaining genetic information.”
  4. But: Inadvertently obtaining genetic information may fall under some of the exceptions set forth in the regulations.

Employers should familiarize themselves with these regulations in order to avoid non-compliance.

How Social Security Could Have Promoted Job Growth

Blog Post by Robert Teuber

This month I am the “Alumni Guest Blogger” for the Marquette University Law School Faculty Blog.  Its a pretty good blog even without my participation and I encourage you to check it out.

n my first guest post, I write about how the new tax legislation has chosen an indirect route to job growth through the Social Security Tax cut for employees.  Giving the tax break to employers rather than employees could have done a lot more.  Don’t get me wrong, anyone who pays Social Security Tax will be happy to see the impact that the one year reduction in the tax will provide in their paychecks.  However, if the new tax law is really supposed to be about job growth (as suggested by its title: Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010), it could have done more with the Social Security Tax cut.

To read about how the Social Security Tax cut really could have directly promoted job growth, read my post entitled: The Social Security Tax Cut And A More Direct Route To Job Growth.

While you are there, stick around to read more about what the school is up to (i.e. bringing on Russ Feingold as a visiting professor) and to consider interesting legal analysis.

Planning for the Immediate Aftermath

Blog Post by Keith R. Butler

We estate planners tend to focus on the technical aspects of estate planning, making sure that documents are carefully drafted to provide for the proper disposition of assets upon death, maximizing tax efficiency, and the like. Too often we ignore one of the most basic practical implications of planning for one’s demise. In short, has the client prepared survivors for the immediate aftermath of his or her death?

Needless to say, the death of a loved one is an intensely emotional time for family and friends, especially if the passing is unexpected. If the instructions have been carefully set forth in advance, with clear communication between the deceased and survivors, the burden can be significantly lessened. The anxiety of not knowing what to do or whom to talk to only adds to the stress of the survivors.

If the proper estate planning has been done, all issues will work out eventually. But perfectly drafted wills, trusts and powers of attorney do not help in the first few days and weeks after death. Here is a brief roadmap for making sure survivors are prepared to handle the affairs in the immediate aftermath of a loved one’s passing.

First and foremost, make sure there is someone who will be in charge. If married, it will likely be the spouse, unless he or she is very elderly or disabled. Even at that, I would encourage a discussion with an adult child as well, in the highly unlikely event both spouses pass or a common accident leaves the survivor temporarily unable to function. The person in charge should be clear on the following:

  1. Have a plan for disposal of remains (cremation or burial) and funeral wishes. Merely writing these into a will in no way makes sure they are done. Often the will is not even read for weeks after death, when the funeral and disposition have long since occurred. I learned this the hard way early in my career. Wisconsin now has a form, “Authorization for Final Disposition” that specifically authorizes an individual to take these actions on behalf of another. With clear instructions, the survivor does not have to try to figure out what the deceased wanted.
  2. Advise the survivor where to look for important documents, including a list of advisors. This can be a safe, safety deposit box (make sure the survivor has access), filing cabinet, desk in office, or even a dresser drawer. Originals need not be here, as they are frequently kept at the attorney’s office, but there should be a designation as to where to find them. The list of advisors should include attorney, accountant, banker, investment advisor and insurance advisor. Business cards with contact information are ideal. The advisors should be immediately notified, and they will handle details on their end.
  3. Make sure any dependent has access to cash, or if the dependent should not have direct access for some reason, another person should have the ability to care for the dependent in the short run to make sure basic needs are met.
  4. The survivor needs keys to the house or apartment. He or she should know where insurance information and bills are kept, to make sure the residence and contents are properly insured, and creditors may be alerted as to the death, so that they will not commence any actions for collection.

As is so often the case, by far the most important element to the equation is communication.

Disclaimer

The comments and opinions expressed in this blog are intended for informational purposes only and do not constitute legal advice. Reading or using the information in this blog does not create the existence of an attorney-client privilege. Due to the changing nature of the law, the blog posts may contain dated material. For an update on the current law and the application of the law to your particular facts and circumstances, consult a legal advisor. The information contained herein is not a substitute for obtaining legal advice from a qualified attorney licensed in your state.