A new Louisiana law will go into effect on Aug. 1, requiring employers to provide time off work for genetic testing and cancer screening.
The new law requires employers in Louisiana to provide employees a one-day leave of absence from work to obtain genetic testing or cancer screening, as long as it is medically necessary.
What is Medically Necessary?
“Medically necessary” is defined as healthcare services that are in accordance with generally accepted, evidence-based medical standards by most physicians or independent licensed practitioners “within the community of their respective professional organizations to be the standard of care.”
The law also states that to be medically necessary services being provided must be “reasonably necessary to diagnose, correct, cure, alleviate, or prevent the worsening of a condition or conditions that endanger life, cause suffering or pain, or have resulted or will result in a handicap, physical deformity, or malfunction, and those for which no equally effective and less costly course of treatment is available or suitable for the recipient.”
Services that are experimental and not approved by the Federal Drug Administration are not considered medically necessary. Nor is an investigational or cosmetic surgery.
Protected genetic information means “information about an individual’s genetic tests, the genetic tests of an individual’s family members, or the occurrence of a disease, or medical condition or disorder in family members of the individual.”
Worker Requirements
Employees should give at least 15 days’ notice to the employer prior to the leave and make a reasonable effort to schedule the leave so as not to cause undue disruption of the employer’s operations. Employees are also required to provide documentation confirming the performance of the genetic testing and/or cancer screening. Of course, employees are not required to disclose the results of the screening. Nor should an employer inquire about results of genetic or cancer testing under the federal Genetic Information Nondiscrimination Act.
Employers are not required to pay for the time off necessary for genetic testing and/or cancer screenings. The employee may elect, however, to substitute any accrued paid time off that the employer provides. The act is silent as to whether the employer can require an employee to use paid time off for the leave.
Under Title II of the Genetic Information Nondiscrimination Act (GINA), it is illegal to discriminate against employees or applicants because of genetic information. Title II of GINA prohibits the use of genetic information in making employment decisions, restricts employers from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.
Under the new state law, employers will be required to post a notice that will be prepared by the Louisiana Workforce Commission that sets forth the requirements of the law. Employers should be on the lookout for the poster from the Louisiana Workforce Commission and review their policies.
Susan Fahey Desmond is an attorney with Jackson Lewis in New Orleans. ©2023. All rights reserved. Reprinted with permission.
