Update - Fall/Winter 2008
FASI E-Newsletter
Fall/Winter 2008

November 25, 2008

Inside This Issue:

2009 Winter Conference Information

Office of the Judges Compensation Claims Documented Significant Progress in 2007-08

Editor's Corner

Our Recent Federal Decision Requires Filing of Surplus Lines Insurance Forms in Florida

One Important New Year's Resolution: Know the New ADA Amendments

FASI Membership Committee Report

Getting to Know GINA

Contact Us:

FASI Website

E-Mail FASI Headquarters

President's Message
--by Gail Shuffler, FASI President

The holidays are rapidly approaching and the opening of the Florida Legislature is not far behind. Newly elected legislators have been in Tallahassee for orientation this week and that is always good for the local economy.  However, FASI members will need to be vigilant, once again, as the State moves to identify funds that may be tapped to balance next year's budget. Tomorrow, the State will release its latest revenue forecasts and it is anticipated that there will be little good news. It is possible that we may see another attempt to "sweep" the WC trust fund. We should be poised to respond as we did last year.

But, as dismal as the recent economic news has been of late, we can still celebrate Thanksgiving and the blessings of family, friends and colleagues.

Best wishes to you and yours for the holiday season. See you at the Winter meeting in January.

Office of the Judges Compensation Claims Documented Significant Progress in 2007-08
--by Chief Judge David Langham

The 2008 OJCC Annual Report is now available on the website, www.fljcc.org, under the "Notices, Orders and Reports" page. The Report includes statistical documentation of many facets of the workers' compensation dispute resolution system. Multiple year trends in petition and new case filing, petition closure, attorney fee payments, and timeliness of trial and trial orders are described. Many of the statistical analyses are also provided regarding each of the 17 OJCC Districts and the 31 Judges individually.

The OJCC is particularly proud of several innovations and performance measures described more fully in the report. The workers' compensation practitioners and adjusters have overwhelmingly accepted electronic filing. The OJCC e-filing system demonstrated a 200% filing increase in 2008. The OJCC deployed video teleconference (VTC) equipment in multiple offices in 2008, adding to previously installed facilities in Orlando, Tampa, and Ft. Lauderdale. The use of VTC for trial will allow the OJCC the greatest possible flexibility in adjudicating claims.

The concerted effort at statutory compliance is delivering for workers' compensation stakeholders. The average time between petition filing and trial decreased 8% in 2007-08 to 379 days. The average time between final hearing and final order decreased 30% to 37 days, and is approaching the statutory 30 days. Half of the Judges had an average time from trial to order within that statutory period. Only one Judge in Florida had an average time in excess of 100 days (137 days). The average time from petition filing to mediation decreased 28% to 116 days in 2008. These improvements result from exceptional efforts by the dedicated and focused professionals that Florida is fortunate to have serving as Judges and Mediators in this system.

Don't Miss Registering for FASI's 2009 Winter Conference Scheduled Jan. 29-30
--by Bethan Hyde

The 2009 Winter Conference of the Florida Association of Self Insurance will be held Thursday and Friday, January 29 - 30, 2009, at the Orlando Marriott Lake Mary, 1501 International Parkway, Lake Mary (greater Orlando area), Florida.

We are encouraging all members to attend. This important meeting provides an excellent forum for you to voice your concerns and needs as a member and to offer input on the future direction of our Association. If you already serve on a FASI committee, this is your chance to have direct input on future Association goals and objectives. If you are not serving on a FASI committee, this is an excellent opportunity for you to acquaint yourself with and hopefully become actively involved on a committee that deals with a topic of interest to you. Click here to see the preliminary agenda for the Winter Conference.

To register for this meeting, you'll need to send in the attendance registration form to FASI Headquarters by Friday, January 9, 2009. The registration fee is $95. Please register NOW.

Make your room reservations today! FASI group rate is $132 per night plus tax single or double. Cut-off date for guaranteed room reservations is Monday, December 29, 2008. Call 800-380-7724 (anytime) or 407-995-1100 (Mon-Fri, 8-5 pm) and ask for the FASI room block. 

Editor's Corner
--by John Darin

What's that old oriental blessing/curse again? "May you live in interesting times." In light of the Murray v. Mariner decision, through which the Florida Supreme Court returned the workers' compensation system to hourly attorneys' fees under the old Lee Engineering standards, we may indeed have some interesting times during this Spring's legislative session. It's been five years since the last major overhaul of the Act, so it's that time in the cycle for another "reform." Florida has a track record. It seems like every three to five years the lobbyists get the legislature to enact pro-industry legislation, and during the intervening three to five years a proactive judiciary undoes the legislature's reforms, bringing them back to the bargaining table for another go 'round. Maybe a federally mandated workers' compensation system, as suggested in Congress in the early 70s, would not be a bad idea. If ever the concept of a national compensation system had a good chance, it would be under the incoming Administration, Congress and Senate, which appear to be pro-labor. A federal system would take a lot of the uncertainty out of the system for the self-insureds and carriers. Still, there doesn't seem to be a groundswell of support for a National Act.

Getting back to Florida, in the Murray case, neither side argued that the $150.00 an hour for attorney's fees that the legislature deemed a reasonable hourly rate for medical only claims should be applied across the board to all claims. Both sides wanted the whole hog rather than arguing a back-up, compromise position. It's sad that the Florida Supreme Court could not figure that $150.00 an hour angle out on their own, instead of returning to the Lee Engineering standards. Maybe this spring the legislature will extend the $150.00 an hour attorney rate to all claims. Fees set at $150.00 would probably be a fair result for all concerned (the adjusters do have 30 days to provide the benefit claimed before fees can be awarded) and something both sides could live with until the Courts examine such legislation on appeal in the next three to five years. Setting the rates at $150.00 an hour might also provide a temporary fix which would not require an overhaul of the entire '03 Act. Interesting times, indeed.

Our Recent Federal Decision Requires Filing of Surplus Lines Insurance Forms in Florida
--by Richard J. Fidei, Esq., Partner, Colodny, Fass, Talenfeld, Karlinsky & Abate

A fundamental concept of Florida insurance law appears to have been negated by the United States Court of Appeals for the Eleventh Circuit in a recent decision that appears to require surplus lines insurers to file policy forms for approval by the Florida Office of Insurance Regulation (OIR).

In its ruling on CNL Hotels & Resorts, Inc. v. Twin City Fire Insurance Company (hereinafter CNL Hotels), the Court relied upon a recent Florida Supreme Court decision in Essex Insurance Company v. Mercedes Zota (hereinafter Essex), to hold that the forms filing statute, (section 627.410(1), Florida Statutes), applies to surplus lines insurers. While the June, 2008 Essex decision was mostly favorable to the surplus lines industry, the Court decided that certain provisions of Florida law, previously understood to be applicable only to admitted insurers, also apply to surplus lines insurers.

The National Association of Professional Surplus Lines Offices subsequently expressed concern that, under this ruling, surplus lines insurers potentially could be subjected to all of Florida's rules relating to insurance contracts, including those involving notices of nonrenewal, imposition of attorneys fees and valued policy laws.

As reported on August 18, 2008, in National Underwriter On-Line Magazine, the OIR informally indicated that it interprets Florida law as providing that non-admitted or surplus lines insurers are not required to file policy forms, except in very limited situations. However, a decision recently issued by the United States Court of Appeals for the Eleventh Circuit in CNL Hotels held that the surplus lines policy forms in that case had to be approved by the OIR to be effective.

To fully understand the implications of the CNL Hotels decision, some background information on surplus lines insurance regulation is in order.

Traditionally, surplus lines insurance is not subject to some statutory standards that are generally applicable to all admitted insurance companies in Florida. For example, surplus lines insurance placed in Florida is exempt from certain statutory requirements that would otherwise apply to surplus lines insurance companies and to the insurance policies that they issue.

Therefore, determination of which specific statutory requirements apply or do not apply to surplus lines carriers is always a question. Section 627.021(2)(e), Fla. Stat., provides that this "Chapter does not apply" to surplus lines insurance.

A casual interpretation could lead to a conclusion that Chapter 627, which provides broad standards and regulation of insurance rates and contracts, does not apply to surplus lines insurance. However, the Florida Supreme Court recently held in Essex that this is not the case.

In Essex, the Florida Supreme Court was faced with the issue of whether certain statutory provisions found in Part II of Chapter 627 of the Florida Insurance Code applied to surplus lines insurers. Notably, certain sections of Florida statutes set forth parameters relating to the delivery of insurance policies, while another provides for the award of attorneys fees under certain circumstances.

In Essex, the plaintiff argued that these statutes applied to surplus lines carriers and the policies that they issue. In response, the surplus lines insurer contended that these statutes did not apply under the law, which exempts surplus lines insurance from the provisions in this Chapter.

Ultimately in Essex, the Court relied upon prior case law and its interpretation of legislative intent that the exemption provided by law for surplus lines insurers applied only to the statutory provisions set forth in Part I of Chapter 627, as opposed to the specific provisions set forth in Part II of Chapter 627, which the Plaintiff was seeking to enforce.

In doing so, the Court relied upon relevant prior legislative materials, as well as the structure and organization of Chapter 627, to reach the conclusion that it was the intention of Legislature for the term "Chapter" to only refer to, and include, Part I of Chapter 627. Thus, the Court interpreted the statutory provisions to exempt surplus lines insurers only from complying with the rating laws in Florida, as set forth in Part I of Chapter 627.

Notably, Chapter 627 of the Florida Insurance Code is separated into 21 parts. Each part covers a separate broad subject matter, which includes, but is not limited to: rates and rating organizations (Part I); the insurance contract (Part II); life insurance and annuity contracts (Part III); health insurance policies (Part VI); property insurance contracts (Part X); motor vehicle and casualty insurance contracts (Part XI); and various other broad subjects. Thus, based upon the decision in Essex, it could be argued that surplus lines insurers are only exempt from the provisions set forth in Part I. While there may be other statutory exemptions that would apply to surplus lines carriers within select provisions of Chapter 627, the Court in Essex held that Section 627.021(2)(e), Fla. Stat. could not be used as a basis for a blanket exemption.

As previously stated, the OIR subsequently provided informal direction that it interpreted Florida law so as to not require surplus lines insurers to file their forms with the OIR, except in very limited situations. Within this context, in CNL Hotels, the Eleventh Circuit addressed the issue of whether an endorsement to a surplus lines policy exempting from coverage certain "loss" payments could be enforced by a surplus lines insurer to deny a claim for $5.5 million in legal fees paid to class action counsel in a prior matter involving its insured. The Court revisited the issue of the applicability of the provisions codified in part II of Chapter 627 to surplus lines insurers, which included section 627.410, Fla. Stat. Under this section, insurers are required to file their basic insurance policies, annuity contract forms, and application forms with the OIR and obtain its approval. Pursuant to the plain language of the statute, this provision does not have an express exemption applicable to surplus lines insurers. However, OIR has not historically required surplus lines insurers to file their forms, either for informational purposes or for approval.

In CNL Hotels, the surplus lines insurer argued that it was exempt from the Florida insurance policy approval process as a surplus lines carrier. Notwithstanding, relying upon the decision in Essex, the Eleventh Circuit disagreed. The Eleventh Circuit held that since the form filing requirement is set forth in part II of Chapter 627, rather than in part I, the statutory exemption found in Section 627.021(2)(e), Fla. Stat., does not apply. As such, the court found under the facts of the case, that OIR approval of surplus lines policies was required and remanded the case to the lower court to make a determination as to whether the endorsement, which the surplus lines insurer was attempting to enforce, had been filed and approved by the OIR. If it had not been approved, the Court stated that the endorsement would be deemed void and unenforceable, which would result in the surplus lines insurer losing the benefit of the exemption from coverage otherwise afforded under the endorsement. Clearly, the Court in CNL Hotels did not adopt the OIR's position that forms filings are not required for surplus lines insurers; however, such a holding contravenes long standing practice within the industry -- both in Florida and across the United States. The Opinion's possible far reaching consequences and the implications with potential applicability of other statutory provisions to surplus lines carriers are dramatic and create a host of issues which need to be carefully considered by all surplus lines insurers in Florida and other jurisdictions.

A request for rehearing was filed by the surplus lines insurer with the court in the CNL Hotels case. In connection with that request, OIR filed a Brief of Amicus Curiae in support of the request by the surplus lines carrier for a hearing. In its brief, OIR argued that the Legislature never intended the surplus lines insurer policy form to conform to the same standards as admitted carriers. OIR concluded that surplus lines law does not require form review by OIR and requested that the court vacate its prior decision or certify the case to the Florida Supreme Court for them to decide. In response, the Court in CNL Hotels denied the insurer's request for rehearing.

To date, the OIR has not issued a formal order or other guidance concerning the obligation of surplus lines insurers to file their policy forms for OIR approval or the applicability of other statutory standards to surplus lines insurers. Moreover, the OIR has not issued any guidance as to other statutory standards which may be imposed upon surplus lines carriers based upon the Essex and CNL Hotels decisions. However, OIR General Counsel Steve Parton has indicated that the OIR is considering the issuance of an order to clarify its position on this subject.

Efforts are underway in Florida's Legislature to consider the impact of these decisions and possibly enact legislation to correct the statutory language which has led to them. Many will endorse appropriate legislative changes to address the issue of the applicability of certain provisions of Florida law to surplus lines insurers. However, the Legislature is not scheduled to convene until its next Regular Legislative Session (commencing in March 2009) unless a Special Session is held in December 2008 to address budget issues.

The dynamics of the Florida Supreme Court decisions must be seriously considered. For example, surplus lines insurers may face issues heretofore thought to not apply to them. As a result, all surplus lines carriers should immediately evaluate the implications of these decisions, consider possible alternatives related to the interpretations of the courts, and take appropriate action to assure that they remain in compliance with Florida law.

One Important New Year's Resolution for Employers: Know the New ADA Amendments
--by Michael Spellman, Esq., Coppins Monroe

On September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008. This law will become effective on January 1, 2009, and expands the scope of disabilities covered under the Americans with Disabilities Act of 1990 (“ADA”). In part, the Act broadens the scope of protection available to employees by rejecting two prior Supreme Court decisions which had narrowly construed the definition of “disability” under the ADA.

Under the Act, courts are instructed that “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” Specifically, the Act rejects the standard announced by the Supreme Court in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), which required that the determination of whether an impairment substantially limits a major life activity be balanced against the “ameliorative effects of mitigation measures,” such as medication or medical devices.

The Act also rejects the standards set forth by another Supreme Court case, Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). In that case, the Court held that (1) the terms “substantially limit” and “major life activities” must be strictly construed when determining the existence of a qualifying disability and that (2) an individual must show that such disability prevents or severely restricts him/her from “doing activities that are of central importance to most people’s lives.”

By rejecting these decisions, numerous court decisions that have denied protection for various conditions, including diabetes, epilepsy, heart disease, mental disabilities and cancer are squarely called into question.

In addition to rejecting these Supreme Court decisions, the Act also adds new definitions and provisions which provide guidance for determining whether an individual’s impairment is, in fact, a disability. In particular, the Act contains the following amendments:
  • The Act specifically provides that the term “disability” shall be construed in favor of broad coverage for individuals;
  • The Act prohibits the consideration of “mitigating measures” such as medication, medical supplies, prosthetics, hearing aids, mobility devices and assistive technology, in determining whether an individual has a disability. Congress did create an exception for ordinary eyeglasses and contact lenses and these items CAN be considered when determining if someone is disabled;
  • The Act clarifies that an impairment that substantially limits one major life activity may not limit other major life activities in order to be a disability; and,
  • The Act states that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

As a result of sweeping amendments, many employees who were not previously protected under the ADA may now be considered to have a disability. This will likely result in an increased number of requests for accommodations made by employees to their employers.

Employers must now adopt a broad standard to determine if someone is “disabled” – something found in the language of the amendment itself. Courts are instructed to provide coverage to individuals “the maximum extent permitted.”

With respect to “regarded as” claims, under the amendments, an individual now must only show that the employer perceived the individual as having a mental or physical impairment (not that the impairment substantially limits a major life activity).  This broad standard could lead to a massive expansion of the ADA’s scope.

In the short term, this means that more ADA cases are going to pass initial threshold tests. Prior to these amendments, courts dismissed many cases on the grounds that the individuals are not “disabled.” Employers should now assume that more employees are going to be covered by the ADA and make decisions with that assumption in mind.

ADA cases are likely to move from “threshold” issues (whether the person has a disability) to “liability” issues (whether the person was actually discriminated against). Employers defending such claims should understand that ADA claims are going to be defended like many other types of discrimination claims: by showing that the employer has a legitimate, nondiscriminatory reason for its decision.

Employers should revisit their existing policies, handbooks and procedures in order to avoid potential lawsuits based upon what will now be obsolete standards and previously-improperly denied accommodations. Employers should also start informing Human Resource staff of these changes and how these amendments are likely to affect the interactive process. Employers should be prepared to provide more accommodations to more of their workforce.

These new amendments apply to any employer who has been covered by the ADA previously. As stated above, the law becomes effective on January 1, 2009.

FASI Membership Committee Report
--by Mark Resler

The 2008 membership drive is behind us and the 2009 renewal process is well underway. Membership has remained static, even in this trying economy. Our focus on membership has been to promote renewed interest in FASI from the core types of members who all share similar interests, that being the self-insured entities, private or public. These types of memberships have seen the greatest growth in our organization in the last few years.  With the growth of the core membership, we expect the carrier and associate membership numbers to follow suit.

The Membership Committee will be meeting at the Winter Conference to discuss strategies to increase membership even further. FASI welcomes input from every source, so if you have ideas, please share them with us. If you prefer, your thoughts can be sent to me at mresler@andersoncolumbia.com.

I want thank each and every member for a successful 2008, and I am looking forward to an even greater 2009.  Please contact FASI directly at 800-226-FASI (3274) if you know of anyone interested in discussing FASI memberships, or pass this number on to the interested party, or refer them to the website www.fasi-fl.org.

Lastly, I want to take a moment to welcome FASI’s new members:

  • Advanced Benefit Concepts; Mr. Charles Calvi
  • Associated Compensation Resources, Inc.; Mr. Dennis Duffy
  • Bunch & Associates; Ms. Anita Breedlove
  • Claims Verification, Inc.; Ms. Jennifer Moss
  • Colodny, Fass, Talenfeld, Karlinsky & Abate, PA; Mr. Fred Karlinsky
  • Crawford & Company; Mr. T. Michael Howell
  • Eckman/Freeman & Associates; Mr. Edward Smith
  • Innovative Risk Consulting; Mr. Bill Aries
  • Integrated Pain Solutions; Ms. Kathleen White
  • MedLink Healthcare Networks; Ms. Sharon Alicia
  • Montgomery Management Corporation; Ms. Anne Marie McCarty
  • NuQuest/Bridge Pointe; Ms. Kathleen Losada
  • Progressive; Ms. Carol Leslie
  • Royal Medical – MSA Consultants; Ms. Sonja Morgan-Marshall
  • Strive Physical Therapy; Mr. Kevin Barineau
  • Tallahassee/American Health Imaging; Mr. Jay Ayers
  • TSI Investigations, Inc.; Mr. Robbie Andrews

Getting to Know GINA
--by Michelle Buckalew, Esq. & Michael Spellman, Esq., Coppins Monroe

Employment law, it seems, has become a modern day alphabet soup. Just when you thought you had enough – with the ADA, FLSA, FMLA, WARN and ADEA, we now have a new one with which we must become acquainted.

The Genetic Information Nondiscrimination Act of 2008, or GINA, is a new federal law that protects Americans from being treated unfairly because of differences in their DNA that may affect their health. The new law prevents discrimination from health insurers and employers. The President signed the act into federal law on May 21, 2008. The parts of the law relating to health insurers will take effect by May 2009, and those relating to employers will take effect by November 2009.

Genetic discrimination occurs if people are treated unfairly because of differences in their DNA that increase their chances of getting a certain disease. For example, a health insurer might refuse to give coverage to a woman who has a DNA difference that raises her odds of getting breast cancer. Employers also could use DNA information to decide whether to hire or fire workers.

GINA prohibits employers from firing, refusing to hire, or otherwise discriminating with respect to compensation, terms, conditions or privileges of employment based on genetic information. GINA also prohibits health insurers from basing eligibility on genetic information. Both employers and health insurers are prohibited from requesting, requiring, or purchasing the results of genetic tests.

Genetic tests look for alterations in a person's genes or changes in the level of key proteins coded for by specific genes. Abnormal results on these tests could mean that someone has an inherited disorder. While it may seem like an obscure requirement, currently 1,200 genetic tests exist which can diagnose thousands of health conditions. This number has grown from just 100 genetic tests ten years ago.

There are three types of genetic tests: gene tests, chromosomal tests and biochemical tests.  Gene tests look for signs of a disease or disorder in DNA taken from a person's blood, body fluids or tissues. The tests can look for large changes, such as a gene that has a section missing or added, or small changes, such as a missing, added, or altered chemical base within the DNA strand. Other important changes can be genes with too many copies, genes that are too active, genes that are turned off, or those that are lost entirely.

Chromosomal tests look at features of a person's chromosomes, including their structure, number, and arrangement. These tests look for changes, such as pieces of chromosomes being switched or being in a different location. Two types of chromosomal tests include karyotype and FISH analysis (fluorescent in situ hybridization), which identifies certain regions on chromosomes using fluorescent DNA probes.

Finally, biochemical tests look at the level of key proteins, which may signal genes that are not working normally. These types of tests are used for newborn screening.

Genetic information covered in the employment setting includes information about an individual’s genetic tests, genetic tests of family members, and the “manifestation of a disease or disorder” in the individual’s family members.

There are, however, exceptions in the employment setting. For instance, an employer is still permitted to request family medical history to comply with the certification provisions of the FMLA. There is also no prohibition against obtaining information through the purchase of publicly available documents, such as newspapers or magazines, which may include obituaries listing an individual’s family medical history. How that information is used, however, may fall directly within the law’s proscribed conduct.

Prior to the enactment of GINA, existing federal anti-discrimination laws arguably applied to genetic claims.  These include the Americans with Disabilities Act (“ADA”), the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”).

Title I of the ADA, and similar disability-based anti-discrimination laws such as the Rehabilitation Act of 1973, do not explicitly address genetic information, but they provide some protections in the workplace. The ADA prohibits discrimination against a person who is regarded as having a disability and protects individuals with symptomatic genetic disabilities. However, it does not protect against discrimination based on unexpressed genetic conditions, nor does it extend to potential workers from requirements or requests to provide genetic information to their employers after a conditional offer of employment. Finally, the ADA does not protect workers from requirements to provide medical information that is job related and consistent with business necessity.

In March 1995, the Equal Employment Opportunity Commission (EEOC) issued an interpretation of the ADA stating that entities that discriminate on the basis of genetic predisposition are treating the individuals as having impairments, which would make such individuals covered by the ADA. The guidance, however, is limited in scope and legal effect. It is policy guidance that does not have the same legal binding effect on a court, as does a statute or regulation, and it has not been tested in court.

HIPAA directly addresses the issue of genetic discrimination. The law prohibits group health plans from using any health status-related factor, including genetic information, as a basis for denying or limiting eligibility for coverage or for increasing premiums. Further, it limits exclusions for pre-existing conditions in group health plans to 12 months and prohibits such exclusions if the individual has been covered previously for that condition for 12 months or more. The law states explicitly that genetic information in the absence of a current diagnosis of illness shall not be considered a pre-existing condition. However, it does not prohibit employers from refusing to offer health coverage.

Finally, under Title VII, an argument could be made that genetic discrimination based on "racially or ethnically linked" genetic disorders constitutes unlawful race or ethnicity discrimination. However, protection under Title VII would only be available where an employer engages in discrimination based on a genetic trait that is substantially related to a particular race or ethnic group. This would be a difficult burden as a strong relationship between race or national origin has been established for only a few diseases.

Although no genetic-employment discrimination case has been brought before federal or state courts, in 2001 the U.S. Equal Employment Opportunity Commission (EEOC) settled the first lawsuit alleging this type of discrimination. EEOC filed a suit against the Burlington Northern Santa Fe (BNSF) Railroad for secretly testing its employees for a rare genetic condition (hereditary neuropathy with liability to pressure palsies - HNPP) that causes carpal tunnel syndrome as one of its many symptoms. BNSF claimed that the testing was a way of determining whether the high incidence of repetitive-stress injuries among its employees was work-related. Besides testing for HNPP, company-paid doctors also were instructed to screen for several other medical conditions such as diabetes and alcoholism. BNSF employees examined by company doctors were not told that they were being genetically tested. One employee who refused testing was threatened with possible termination.

The lawsuit was settled quickly after the EEOC, on behalf of BNSF employees, argued that the tests were unlawful under the ADA because they were not job-related, and that any condition of employment based on such tests would be cause for illegal discrimination based on disability.

Title II of GINA applies to employers. Section 207 of the act, which addresses remedies and enforcement, contains a hybrid of adopted statutes. For example, in determining whether an unlawful employment practice occurred, for employees covered by Title VII, the act specifically adopts the procedures and remedies set forth of that law. For costs and fees, the act adopts the procedures of 42 U.S.C. §1988. Finally, damages are controlled by the procedures set forth in 42 U.S.C. §1981A. Section 207 also contains an express prohibition against retaliation.

GINA undoubtedly will become another employment law we will have to address through policies and procedures, as well as training and compliance. As mentioned above, there is still time to get to know GINA better, as the new law becomes effective in the employment setting in November of 2009 and in the health insurer setting in May of 2009.

If you have questions or comments about the FASI E-Newsletter, please contact: Bill Kautter at bkautter@kmgnet.com (800-226-3274) or Newsletter Chair John Darin at jdarin@znoskoreas.com.

Please note that letters and comments sent to the publisher are automatically considered for use in upcoming issues unless you expressly request that they not be used. You may request that you remain anonymous in the case that your letter or comments are used. We reserve the right to edit for brevity and/or clarity.

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