Governor John Bel Edwards recently signed into law Act No. 210, which provides unpaid leave for employees in Louisiana to receive genetic testing and preventive cancer screening. The act requires employees to satisfy numerous criteria to qualify for the leave, while adding to an employer’s posting and notice obligations to employees of their newly created leave rights. The new law becomes effective on August 1, 2023.

Quick Hits

• Louisiana’s Act No. 210 provides unpaid leave for employees to receive genetic testing and preventive cancer screening.
• To qualify for leave, employees must provide adequate notice and schedule the leave at a time that will not unduly burden the employer.
• The new law takes effect on August 1, 2023.

Genetic Testing and Preventive Cancer Screenings

Act No. 210 amends the Louisiana Employment Discrimination Law (LEDL) to require employers to grant an employee a one-day leave of absence from work to obtain genetic testing or preventive cancer screening. The law does not require employers to provide paid time off in connection with the leave; however, employers must allow employees to substitute “accrued vacation time or other appropriate paid leave.” The law does not define what constitutes “other appropriate paid leave,” but protecting an employee’s ability to take leave to obtain health screenings suggests that an intention of the law is to allow employees to be able to use any sick leave benefits or paid time off (PTO) that the employer may provide.

Requirements That Must Be Satisfied to Be Entitled to Leave

Assuming that the testing is “medically necessary,” an employee must provide adequate notice prior to the leave and “make a reasonable effort to schedule the leave so as not to unduly disrupt the operations of the employer.” The law also requires that the employee provide documentation to the employer confirming that the testing has been performed.

Notice and documentation

The employee’s notice obligation is straightforward. At least fifteen days prior to taking leave, the employee must notify the employer of his or her need to take leave. Additionally, the employee has an obligation to make a “reasonable effort” to schedule the leave so that it does not “unduly disrupt” the employer’s operations. What constitutes a “reasonable effort” on the employee’s part in scheduling the leave will require a case-by-case evaluation that may depend upon a variety of factors, including the waiting time for an employee to obtain a screening, as well as the urgency of each party’s needs, both in terms of the employee’s need for the testing and the employer’s needs during the time that the employee will be absent.

The employer may request that the employee “provide documentation confirming the performance of such genetic testing or cancer screening,” though the employer may not, under the law, require the employee to provide the results of such tests. Nonetheless, the law requires employees to provide documentation when employers request it. In this regard, the law is silent regarding when the employer’s request for documentation must be made, how long the employee has to provide such documentation in response to the request, and the consequences for the employee’s failure to do so or the consequences for incomplete or unclear documentation.

Testing must be “medically necessary”

The law imposes conditions that the tests must satisfy for an employee to be entitled to leave. Preventive cancer screenings are only those tests “necessary for the detection of cancer in an individual,” examples of which include mammograms, magnetic resonance imaging (MRIs), positron emission tomography (PET) scans, endoscopies, and ultrasounds.

Under the new law, leave is permitted only when the genetic testing and preventive cancer screening is “medically necessary.” The law interprets testing to be medically necessary when it satisfies the following conditions:

• The testing must be “reasonably necessary to diagnose, correct, cure, alleviate, or prevent the worsening of a condition or conditions that endanger life, causes suffering or pain, or ha[s] resulted or will result in a handicap, physical deformity, or malfunction, and … for which no equally effective and less costly course of treatment is available or suitable for the recipient.”
• The testing must be “in accordance with generally accepted evidenced-based medical standards or … considered by most physicians or independent licensed practitioners within the community of their respective professional organizations to be the standard of care.”

The conditions in the latter bulleted point may create uncertainty regarding compliance with the new law. Most employers will not know what tests comply with the specified standards without conferring with third parties. In addition, the new law also permits leave for tests ordered by “independent licensed practitioners.” Louisiana requires many practitioners in the medical field—including medical doctors, dentists, nurse practitioners, optometrists, chiropractors, and occupational therapists—to be licensed. Additionally, the law’s reliance upon a community-based standard of care may give rise to the problem that leave for testing in one area or locale in Louisiana, e.g., metropolitan areas, would satisfy the new law but testing in other, rural areas of the state would not.

Even if the testing meets the above criteria, the new law states that the testing does not qualify as “medically necessary” if it is experimental, cosmetic, investigational, or not approved by the Food and Drug Administration (FDA). However, such exclusion does not apply if early screening and detection is covered by an employee’s health or dental insurance policy. Again, it may be difficult for employers to determine whether the testing is covered by insurance or otherwise considered to be experimental or unapproved under the law.

A New Discrimination Claim

If an employer violates the new law, the employer faces liability under the LEDL, Louisiana’s all-encompassing anti-discrimination and leave law.

New Poster Obligations

Finally, employers have a new poster obligation. The Louisiana Workforce Commission will prepare a new poster that sets forth the leave requirements. Under the new law, employers are required to obtain a copy of the notice and post it in a conspicuous place on its premises.

Key Takeaways

Because of the ambiguities in the new law’s requirements and because of practical concerns with how to comply with the law, the new law could lead to headaches and litigation for employers. Until the courts have reviewed the new law, particularly as to what tests and screenings are “medically necessary,” employers may want to consider taking an accommodative approach to requests for leave by employees for genetic testing and preventive cancer screenings. Specifically, instead of investing significant energy to ensure that the tests are medically necessary, an employer’s focus may be better served by working with the employee to ensure that the leave sought by the employee can be accommodated without significant disruption to the employer’s business.

Ogletree Deakins’ New Orleans office will continue to monitor developments with respect to the new law and will publish updates on the Leaves of Absence and Louisiana blogs as additional information becomes available.