New FMLA Forms, GINA and the Information You DON’T Want

Using one federal agency’s forms should satisfy other federal agencies – right?  The answer: not exactly. The Department of Labor (USDoL) has updated its optional FMLA forms and has given them a 2015 expiration date (they are unlikely to make it to 2015 due to changes needed).  If the FMLA forms you’re using do not say “Expires 2/28/2015” in the upper right hand corner, go to the USDoL web site and get new forms.  See http://webapps.dol.gov/libraryforms.   

Simple right?  But the Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) is enforced by the EEOC and became effective on November 21, 2009. GINA provides ”safe harbor” language that should be in any request for information about an employee that might include information about “genetic testing” or hereditary diseases such as a family medical history information.  To avoid getting information you do NOT want to receive, the EEOC has provided “safe harbor” language that can be included in any request for medical information.  This information needs to be added to any request for medical information about an employee or family member, including the USDoL’s FMLA 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 an individual or family member of an applicant or employee, except as specifically allowed by this law. Consideration of family medical history information may violate GINA.  To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.

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New Requirements Are Imposed By Public Law 148 Upon School Districts For The Contracts Of Certain Certificated Employees

Contracts between Indiana public school boards and their superintendent, administrators, teachers and bus drivers have always been public records under Indiana’s Access to Public Records Act (Ind. Code 5-14-3). Contracts with certificated employees also are covered by Ind. Code 20-28-6-2(d).  These contracts always have required approval by a public vote of a majority of the full board rather than a majority of a quorum.  So transparency with respect to these important documents always has been guaranteed by Indiana law, but at times, the contracts were written to incorporate federal and state tax laws.  These references were efficient, but at times, these references made the contract hard for a community member to understand. 

The 2012, the Indiana General Assembly added conditions precedent to the approval of certain employment contracts through Public Law 148-2012, Acts Of 2012.  Public Law 148-2012 (also known as HEA 1205-2012) is effective July 1, 2012.  It requires Indiana school boards to publicize all of the employment contracts it enters into with its certificated employees. “Certificated” as used here means employed in a position requiring a license from the Office of Educator Licensing and Development in the Indiana Department of Education.  The requirements of Public Law 148-2012 are summarized below:

Superintendent’s Contract  (I.C. 20-26-5-4.3)

  • Seven days prior to a governing body entering into a contract with a superintendent, the governing body shall hold a public meeting on the contract at which public comment is heard.
  • Notice of the proposed meeting must be given in accordance with I.C. 5-3-1 and posted on the school district’s website.
    • Notice is published at least one time at least 10 days prior to the meeting.
    • Notice states date, time and place of meeting.
    • Notice must state details of the proposed contract including the actual monetary value of the contract, benefits and any additional forms of the contract for each year of the
    • For a candidate for employment the notice and contract may exclude the name.
    • After entering into the contract, the governing body shall post the superintendent’s contract on the school district’s website.

Certificated Contracts  (I.C. 20-26-5-4.7)

Other than the Superintendent and any other certificated employees that are not represented by an exclusive representative under the Teacher’s Collective Bargaining Act.

  • The Superintendent shall post the provisions of an employment contract that the School Corporation enters into with a certificated employee on a School Corporation’s Internet website.

Teachers Collective Bargaining Agreement  (I.C. 20-29-6-1.9)

  • Not later than fourteen (14) business days after the parties have reached an agreement under this chapter, the school employer shall post the contract upon which the parties have agreed on the school employer’s Internet website.

Comments and Recommendations

In essence, Public Law 148, Acts of 2012 amends three different code provisions so that every contract on a certificated employee (by the collective bargaining agreement for teachers) is not required to be posted.  The effective date is July 1, 2012.

Where a contract and/or addendum incorporates another document, such as an Administrative Fringe Benefit Guideline, that document also should be posted.  Where a contract and/or addendum does not incorporate another document, again, such as an Administrative Fringe Benefit Guideline, that document technically is not required to be posted pursuant to the Mandate of Public Law 148, Acts of 2012.  However, it is a public document.  If it is not posted, it is not a violation of the newly mandated provisions, but that failure to post could result in the school corporation being criticized as to not complying with the spirit of Public Law 148, Acts of 2012 and failing to be transparent.

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New Non-Discrimination Notice

This is the time of year when K-12 schools collect the experience of the prior year and update their student handbooks.  Because several federal agencies offer sample notices that they would like to see in student/parent handbooks, it makes good sense to look at those sites.

The Office of Civil Rights (OCR) in the United States Department of Education (USDoE) has amended its suggested “Sample Notice of Non-discrimination” to include a specific reference to duties enforcing the Boy Scouts of America Equal Access Act.  So OCR now enforces Title VI of the Civil Rights Act of 1964 (race), Title IX of the Education Amendments of 1972 (sex), Section 504 of the Rehabilitation Act of 1973 (disability), the Age Discrimination Act of 1975 (age) and the Boy Scouts of America Equal Access Act (equal access to meet on school premises or in school facilities for the Boy Scouts of America and other designated youth groups).  To learn more from the OCR web site, go to: http://www2.ed.gov/about/offices/list/ocr/docs/nondisc.html#ftn1.

The following sample notice of non-discrimination meets the minimum requirements of the regulations enforced by OCR:

The _______ School District does not discriminate on the basis of race, color, national origin, sex, disability, or age in its programs and activities and provides equal access to the Boy Scouts and other designated youth groups. The following person has been designated to handle inquiries regarding the non-discrimination policies:  Name and/or Title; Address; Telephone #.

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Updated FERPA & PPRA Annual Notices

The Family Educational Rights and Privacy Act of 1974 (“FERPA”), is administered by the Family Policy Compliance Office (“FPCO”) in the U.S. Department of Education. The FPCO also enforces the Protection of Pupil Rights Amendment (“PPRA”).  Indiana Code 20-30-5-17 creates parental rights similar to the PPRA.  The FPCO’s web site includes updated FERPA regulations as well as sample forms and suggested content for annual notices required by FERPA and the PPRA. See http://www2.ed.gov/policy/gen/guid/fpco/index.html.

The Printout They Can’t Just Throw Away. In 2012, secure disposal of confidential information is a hot topic. Some of us recall the TV news story showing a reporter standing next to a dumpster behind a pharmacy and pulling out lists of who takes birth control and anti-depressants.  Data tracking individual student performance is equally confidential.  As school districts share information tracking individual students with program evaluators, the responsibility for a written data management and destruction agreement with each researcher is placed on the school district that originated the data.  Sample agreements are on the FPCO web site.

Clearing the way for the yearbook, honor role and coverage of sports teams. The FPCO also offers a sample notice concerning a school district’s release of “directory information” under FERPA unless a parent or eligible student (age 18+) objects.  Because most school districts release “directory information” by publishing yearbooks, stats sheets for student athletes  and graduation programs, a FERPA  “directory  information” notice must be given each year.  Updated FERPA regulations allow more discretion to release and not release director information.  This discretion needs to mesh with the provision of the Indiana Access to Public Records Act addressing release of lists of students.  See Ind. Code 5-14-3-3(f).  For a superintendent or principal caught in the middle, access to directory information by military recruiters is addressed on the FPCO site and in Ind. Code 20-33-10.

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EEOC Restates Its Position That the Use of Arrest Records May Violate Title VII

On April 25, 2012 the EEOC restated the possibility that the use of criminal background checks by employers may violate Title VII if the standard they employ has a disproportionate adverse impact based on race, national origin, or other protected category. The EEOC’s April 25 Enforcement Guidance can be found at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. Employers need not intend to discriminate to violate Title VII if their hiring standards have a disparate impact, and the EEOC believes that using criminal history data very frequently has a disparate impact.  If a disparate impact is statistically present (and it almost always is), employers will have to demonstrate “business necessity” for the use of the standard.  Exactly how this EEOC standard integrates with the mandatory board policy required by Ind. Code 20-26-5-10 is not entirely clear, but not every crime should be treated the same. An important factor in “business necessity” is the list of “essential functions” in the job the applicant is being considered for, or a current employee performs. For a set of factors that can be used to evaluate arrest and conviction data, contact a member of the Bose McKinney & Evans Education Law Group.

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OK, whose miniature horse is this?

No less than four different sets of regulations cover the use of a service animal by a person at school. Indiana law has the broadest definition of service animal. It  defines ”service animal” to mean any animal that helps with hearing, seeing, performing tasks, anticipating seizures, or addressing psychiatric or autism disabilities.  Indiana law prohibits an extra admission charge to an activity such as a ball game for a service animal (Ind. Code 16-32-3-1).  The Justice Department enforces the public facilities portion of the ADA and recognizes only dogs as service animals, but just recently added a special rule permitting miniature horses as a service animal. The role of a service animal for vision impaired students is recognized in IDEA and Article 7, and the EEOC uses a broader definition of service animal for workplace purposes. The City of Indianapolis was recently sued for refusing to allow an employee’s “papricka dog” to accompany her in the municipal workplace.  Experience teaches that most person who are accompanied to an activity by a service animal know their rights.

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Lessons from the Indiana State Fair Tragedy

There are lessons for K-12 schools in the report by Witt Associates on the August 13 State Fair tragedy.  The State Fair grandstand concert presented risks similar to spring school activities such as baseball games, baccalaureate and graduation,  and fall activities such as football, homecoming bonfires (a huge separate risk), and practice for the State Fair Band Contest.   In the mid 1990’s, we urged clients to be prepared to recognize the subtle signals of the probability of lightening at outdoor events.  In 2010, we advised clients about the Consumer Product Safety Commission’s order implementing the “Virginia Graeme Baker Pool and Safety Act”.  In that legislation, Congress responded to the death of the 7-year-old granddaughter of former Secretary of State James Baker III.  In that tragedy, the suction of a pool drain held the Baker child on the bottom of the pool.  Congress mandated action by the Consumer Product Safety Commission requiring pool drain covers that would prevent similar tragedies.  In 2011, the Indiana General Assembly mandated standards for dealing with student concussions in high school intramural and interscholastic sports, see Ind. Code 20-34-7.

In the Witt Associates report on the State Fair tragedy, by page 3, it is clear that very good and caring people were unsure who had authority to act and lost a brief opportunity to avoid the tragedy.  With benefit of hindsight, that situation required minute by minute weather updates and a single decision-maker authorized to take immediate action, rather than call a meeting.  School administrators can learn lessons from problems that occur elsewhere.   So we encourage school officials to look at page 3 of the Witt Associates report to see what can be applied to their activities.  The report is in the public domain, and easy to obtain thanks to The Indianapolis Star.   Go to: http://www.indystar.com/assets/pdf/BG187902412.PDF

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