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In the classic Quentin Tarantino film PULP FICTION (A Band Apart/Jersey Films 1994), one of the primary plot points revolves around main characters Jules and Vincent safeguarding a briefcase with mysterious contents.1 They go to great lengths to ensure the briefcase does not leave their possession. Just as Jules and Vincent take all necessary steps to protect the briefcase, so too must employers ensure the protection of employees’ health records. We often receive calls from employees and employers regarding protecting medical records obtained as part of an individual’s employment, and this post will provide an overview of that topic.

As an initial matter, many individuals associate medical records with the Health Insurance Portability and Accountability Act (“HIPAA”). Although it is true that HIPAA was designed to protect “sensitive patient health information from being disclosed without the patient’s consent or knowledge,” the well-known “Privacy Rule,” which addresses the use and disclosure of protected health information, applies only to “Covered Entities.” See “Health Insurance Portability and Accountability Act of 1996 (HIPAA),” Centers for Disease Control and Prevention, https://www.cdc.gov/phlp/publications/topic/hipaa.html (last visited Nov. 17, 2021). “Covered Entities” include healthcare providers, health plans, and healthcare clearinghouses. Id.

Although an employer may also sponsor a health plan, the Privacy Rule “does not protect your employment records, even if the information in those records is health-related.” “Employers and Health Information in the Workplace,” U.S. Dep’t of Health & Human Services, https://www.hhs.gov/hipaa/for-individuals/employers-health-information-workplace/index.html (last visited Nov. 17, 2021). Generally, the “Privacy Rule” does not apply to the actions of an employer. Id. If an employer also acts as a Covered Entity, it must consider what position it played in obtaining the health information (for example, an individual may be employed by a healthcare provider and be a patient of that provider). Employers are permitted to ask employees for a note from a physician or other health information if necessary for an employment-related purpose (e.g., sick leave, workers’ compensation, wellness programs); however, if employers seek information directly from a Covered Entity, the employee’s authorization will be required. Id. As the Department of Health and Human Services notes, “[g]enerally, the Privacy Rule applies to the disclosures made by your health care provider, not the questions your employer may ask.” Id. Although HIPAA generally does not apply in the employment context, that does not mean employers can freely share an employee’s health information.

Under the Americans with Disabilities Act (“ADA”), if an employer obtains medical records regarding an employee as part of the interactive process, the employer must keep the medical records separate from the personnel file and label them as “confidential medical records.” Employers may share the information with supervisors and managers who need to know the necessary accommodations and potential restrictions on the employee’s duties; first aid and safety personnel who may need to treat the employee if an emergency arises; and government officials who need the information to investigate compliance with the ADA. Similarly, records obtained by employers for purposes of the Family and Medical Leave Act (“FMLA”) must be kept separate from the employee’s personnel file and labelled as “confidential medical records.”

Like Jules and Vincent, we are here to ensure that you know the ins and outs of keeping someone’s “briefcase” secure (or know your rights if there is a concern about someone losing your “briefcase”). If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

¹ As an interesting trivia fact, that briefcase serves as a MacGuffin, “an object, event, or character in a film or story that serves to set and keep the plot in motion despite usually lacking intrinsic importance.” In Merriam-Webster.com. Retrieved November 5, 2021, from https://www.merriam-webster.com/dictionary/MacGuffin.

Photo by National Cancer Institute on Unsplash

Many people take DNA tests every year. Services such as AncestryDNA and 23andMe have become increasingly popular over the last few years. Undoubtedly, genetic testing has become instrumental not only in learning about one’s family history but also in helping to diagnose medical conditions. One of the lesser-known areas of employment law involves genetic information discrimination. This post will examine the Genetic Information Nondiscrimination Act (“GINA”) of 2008 and explore its impact in the workplace.

Title II of GINA prohibits discriminating against employees or applicants because of their genetic information. As with other classes protected by federal law (such as Title VII or the ADA), GINA applies to employers with fifteen (15) or more employees. As a starting point, it is important to understand the meaning of “genetic information.” This phrase includes information about genetic tests and the genetic tests of an individual’s family members (spouse, dependent child, parent, grandparent, or great-grandparent), as well as family medical history. Congress included family medical history because of the routine use of such information to determine if an individual is at an increased risk of getting a disease, condition, or disorder in the future. “Genetic information” also includes an individual’s request for or receipt of genetic services or the participation in clinical research that includes genetic services. Furthermore, the phrase includes the genetic information of a fetus or embryo carried by the employee or a family member of the employee.

GINA makes it clear that an employer may not use genetic information to make an employment decision. Under GINA, it is also illegal to harass a person because of her or his genetic information. This includes, as an example, routinely mocking an employee for his genetic information or about the genetic information of the employee’s family member. As with other forms of discrimination, the harassment must be severe and pervasive to be actionable; in other words, an offhanded comment or isolated incidents of harassment will not be enough to assert a claim against an employer. As with other forms of harassment, employees should report incidents to the proper individual, and employers should take all complaints seriously. Finally, it is illegal to retaliate against an employee for opposing discrimination based on genetic information. Retaliation may include disciplining an employee, demoting an employee, or terminating an employee for raising complaints of discrimination based on genetic information or filing a charge of discrimination with the Equal Employment Opportunity Commission and/or the proper state agency (in Florida, the Florida Commission on Human Relations). It should also be noted that when employers obtain genetic information about employers, such information shall remain confidential except in very limited circumstances.

GINA brought to the forefront the importance of genetic information and ensured that employees are protected from discrimination and retaliation based on the genetic information (and that of family members), just as other classes are protected. When dealing with genetic information discrimination and retaliation, it is important to know your “ACGTs.” We are here to help and ensure employees and employers do not get confused by the law. If you need assistance, do not hesitate to contact us.

We hope you and your family stay safe and healthy.

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“A dog judges others not by their color or creed or class but by who they are inside. A dog doesn’t care if you are rich or poor, educated or illiterate, clever or dull. Give him your heart and he will give you his.”

—John Grogan,

Marley & Me: Life and Love with the World’s Worst Dog

(William Morrow 2005)

There is no doubt that pets make our lives better. There have been numerous scientific studies demonstrating that pet ownership is beneficial to our mental and physical wellbeing. See How to Stay Healthy Around Pets, Centers for Disease Control and Prevention, https://www.cdc.gov/healthypets/keeping-pets-and-people-healthy/how.html. For some, owning a pet is a necessity because they need the help of a service animal or emotional support animal. This post will discuss some of the questions we receive regarding bringing a service or emotional support animal into the workplace. As a starting point, it is important to understand the difference between service animals and emotional support animals.

Under Title I of the Americans with Disabilities Act (“ADA”), which is the provision related to employment, service animals are not discussed. The ADA covers employers with fifteen (15) or more employees, including state and local governments. Florida has similar protections under the Florida Civil Rights Act (“FCRA”). Title II and Title III of the ADA recognize only dogs as service animals, and regulations issued by the Department of Justice also include miniature horses as service animals. To qualify as a service animal, the dog (or miniature horse) must be individually trained to do work or perform a task for an individual with a disability. The task(s) performed must be directly related to the individual’s disability. For example, a service dog may be trained to alert an individual with diabetes when his blood sugar is low. Under the ADA, a service animal does not have to be professionally trained. Service animals must remain under the control of their handlers, and handlers must ensure the animal is housetrained.

Emotional support animals, by contrast, are not considered “service animals” under the ADA. Emotional support animals do not have special training to perform a task related to a disability, but they are undeniably important to their owners and often provide companionship and can help with depression, anxiety, and similar conditions. It may very well be that an individual has a disability and that the emotional support animal assists him with performing the essential functions of his position. For example, an employee with anxiety disorder may need the emotional support animal present to mitigate the disorder and help him perform his work.

Employees seeking to bring service animals or emotional support animals into the workplace should first approach the employer (often the human resources department) and make the reasonable accommodation request of bringing in the animal to assist with his or her disability. The employer should then engage in an interactive discussion with the employee to learn about the disability, how it impacts the employee’s major life activities, and how the disability impedes the employee from performing his duties. If the disability is not apparent and/or the reason for needing the animal is not clear, employers can request documentation related to the disability and/or request. It is important to note that the request and any other aspect of the process should be in writing. Under the ADA (and the FCRA), employers are obligated only to provide a reasonable accommodation and not the preferred accommodation if alternatives exist. The employer may thus provide another accommodation that would permit the employee to perform the essential functions of his position. Employers may deny a reasonable accommodation request if the request would create an undue hardship on the business, although this is a narrow exception.

Likely, after engaging in the interactive process, an employer will be obligated to permit an employee to bring a trained service animal into the workplace. The animal should be permitted in any areas where the employee is permitted, with limited possible exceptions (e.g., a sterile environment). There may, however, be other alternatives to allowing an employee to bring an emotional support animal into the workplace. It is critical that employers carefully consider requests from employees and communication is, as usual, vital.

The decision to seek a reasonable accommodation in the workplace or to respond to an employee’s request can be confusing. If you need assistance in ensuring that you do not end up in a “ruff” situation, please reach out to us.

There is a well-known Faustian legend about the great Delta blues musician Robert Johnson that maintains he went out to a crossroad down in Mississippi and agreed to sell his soul to the Devil in exchange for becoming the greatest Blues musician who ever lived.  This story has grown through the decades, and it certainly does not help that Mr. Johnson passed away under mysterious (or at least mysterious to the historical record) circumstances at the age of 27.  Robert Johnson left behind a comparatively small body of work, but his legacy on music is undeniable.  One of the great tracks he left behind is “Cross Road Blues.”  In the song, the narrator discusses the difficulties he is facing and how he searched for guidance while at the crossroad.  Like the narrator, we often receive calls from employees and employers at the crossroad of an employment relationship.  One question asked of us on an almost daily basis is whether non-compete agreements are enforceable in Florida.  In this post, we will answer that question and provide some guidance regarding such agreements.

The short answer is that non-compete agreements are generally valid in Florida, if they meet certain requirements.  Section 542.335, Florida Statutes, governs non-compete agreements in Florida. Such agreements are valid “so long as such contracts are reasonable in time, area, and line of business[.]” § 542.335(1), Fla. Stat. (2021).  Non-compete agreements must be in writing, and the party seeking to enforce it must also “plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant.” § 542.335(1)(a)-(b), Fla. Stat. (2021).  The party seeking to enforce the non-compete agreement must “plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant.” § 542.335(1)(b), Fla. Stat. (2021).  The Legislature provided the following examples of a “legitimate business interest,” although this is by no means a complete list:

1. Trade secrets (as defined in section 688.002(4), Florida Statutes);
2. Valuable confidential business or professional information that otherwise does not qualify as trade secrets;
3. Substantial relationships with specific prospective or existing customers, patients, or clients;
4. Customer, patient, or client goodwill associated with:
   1. An ongoing business or professional practice, by way of trade name, trademark, service mark, or “trade dress”;
   2. A specific geographic location;
   3. A specific marketing or trade area.
5. Extraordinary or specialized training.

§ 542.335(1)(b)1.-5., Fla. Stat. (2021). The party seeking to enforce the non-compete must also plead and prove that “the contractually specified restraint is reasonably necessary to protect the legitimate business interest or interests justifying the restriction.” § 542.335(1)(c), Fla. Stat. (2021).  Generally, the courts will deem reasonable a non-compete for two (2) years or less and will examine the geographic scope of the non-compete on a case-by-case basis.  It is important to note that non-compete agreements vary and that it is critical that they be evaluated on an individual basis by an attorney.

One recent development of note is President Biden’s issuance of an Executive Order that in part targets non-compete agreements.  Specifically, President Biden instructed the Chair of the Federal Trade Commission (“FTC”) as follows: “To address agreements that may unduly limit workers’ ability to change jobs, the Chair of the FTC is encouraged to consider working with the rest of the Commission to exercise the FTC’s statutory rulemaking authority under the Federal Trade Commission Act to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”  Proclamation 14036, 86 FR 36987 (July 14, 2021).  To date, there has been no implementation of this Executive Order.  Even if the FTC attempts to enforce the limits on non-competes, there will certainly be legal challenges.  We will provide updates on this issue as they become available.

If you need further assistance navigating the crossroad of an employment relationship (or ensuring you are prepared if you ever come upon it), please do not hesitate to contact us.  We are here to make sure that employees and employers can have a smooth transition and do not feel as lost as Robert Johnson’s narrator.

We hope you and your family stay safe and healthy.

It can certainly be said that, like the subject of the famous Pat Benatar song, COVID-19 does not fight fair.  And like Pat Benatar, humanity has declared, “Knock me down, it’s all in vain.  I get right back on my feet again.”  We have received several calls regarding employers requiring their workers to be vaccinated.  This blog post will answer some of the most asked questions.

The question we receive most often is, “Can a company require employees to get the COVID-19 vaccine?”  The Equal Employment Opportunity Commission (“EEOC”) has made it clear that covered employers (generally, employers with 15 or more employees) can require all employees coming into the workplace to be vaccinated as long as the employer complies with the relevant laws (such as Title VII and the Americans with Disabilities Act).  An employee may seek a reasonable accommodation to be excused from the requirement for reasons such as a disability or a sincerely held religious belief, practice, or observance.  An employer must evaluate the accommodation request to determine if a reasonable accommodation can be provided that does not pose an undue hardship (significant difficulty or expense) on the employer.  Employers must ensure they have a policy that does not discriminate against an employee due to a protected class (for example, race, gender, age, religion, sex, or any other class protected by law).  Reasonable accommodations that employers may provide to those with a disability or a sincerely held religious belief include, but are not limited to, requiring the employee to wear a face mask, requiring the employee to “social distance” from other employees, working remotely, or periodically being tested for COVID-19.  On a related note, the Department of Labor has made it clear that under the Fair Labor Standards Act (“FLSA”), an employer is required to pay an employee for time spent waiting for and receiving medical attention at their direction or on their premises during normal working hours.

Another question we often receive is, “Can a company reward an employee for getting the COVID-19 vaccine?”  The answer is yes, an employer may provide incentives to employees to get vaccinated, if the employer does not acquire genetic information about the employee.  These incentives may include financial bonuses or additional paid time off.

One final question we often receive is, “May a company require proof of vaccination?”  Yes, an employer may require proof of vaccination.  That information, however, must remain confidential in the employee’s medical file.

The federal government has added a new wrinkle to this issue by announcing that, via Executive Order and the Occupational Safety and Health Administration (“OSHA”), it will mandate vaccines (or, in some cases, weekly testing) for federal employees, government contractors, and all employers with 100 or more employees. These measures are highly controversial and will undoubtedly be subject to Constitutional and other legal challenges.  We will provide further updates as these disputes are resolved in the federal courts.

As we have noted previously, the COVID-19 pandemic has led to an ever-changing landscape.  Our firm will continue to “put up our dukes” and assist clients in traversing through this crisis.  Please stay tuned to this blog for additional updates and contact us if you have any questions or concerns.

We hope you and your family stay healthy and safe.