EEOC Updates COVID-19 Guidance for COVID-19 Testing and ADA Accommodations
|
09/22/2020
|
By: Morgan Geffre
|
On
September
8,
the
EEOC
updated
its
guidance
with
respect
to
what
employers
should
know
about
COVID-19,
the
ADA
Rehabilitation
Act,
and
other
EEO
laws.
Generally,
the
updates
act
to
clarify
previously
taken
positions
of
the
EEOC.
Two
of
the
important
clarifications
involve
the
EEOC’s
position
on
administering
COVID-19
tests
to
employees,
and
an
employers’
ability
to
invite
employees
to
request
disability
accommodations.
- Employers
are
still
able
to
administer
COVID-19
tests
if
they
are
accurate
and
reliable,
but
the
EEOC
notes
the
consideration
of
false
positives
and
negatives.
The
EEOC
also
added
the
disclaimer
that
a
negative
test
result
does
not
mean
the
employee
won’t
contract
COVID-19,
and
employers
should
continue
requiring
social
distancing
measures.
- Many
employers
are
still
operating
from
home.
In
preparation
for
returning
to
the
physical
workplace,
the
EEOC
allows
employers
to
invite
employees
to
submit
requests
for
disability
accommodations
in
advance
of
their
return.
This
would
simply
start
the
interactive
process.
Those
employees
who
do
not
request
an
accommodation
in
advance
would
not
be
barred
from
later
asking.
|
|
"Magic Words" Not Needed to Trigger ADA Obligations
|
12/06/2019
|
By: Morgan Hammes
|
The
Tenth
Circuit
Court
of
Appeals
(which
has
jurisdiction
over
Kansas)
recently
reiterated
the
rule
that
employees
do
not
need
to
use
“magic
words”
to
request
a
reasonable
accommodation
for
a
disability.
This
case
involved
a
garbage
truck
driver
named
Roy
Mestas
who
worked
for
the
town
of
Evansville,
Wyoming.
Mestas
slipped
on
the
ice
while
working,
hurt
his
back,
and
was
on
medical
leave
for
six
weeks.
Mestas
claimed
that
when
he
returned,
his
bosses
treated
him
worse
than
his
co-workers
because
they
were
upset
with
him
for
getting
hurt
and
missing
so
much
work.
One
day,
when
he
was
assigned
to
remove
snow,
Mestas
asked
his
boss
if
he
could
use
his
own
snowblower
to
assist
with
the
task,
which
he
thought
would
help
with
his
back
pain.
The
boss
denied
this
request.
The
next
day,
Mestas
asked
his
supervisor
to
be
excused
from
shoveling
snow
because
he
reinjured
his
back,
but
the
boss
just
hung
up
in
response.
Mestas
alleged
that
when
he
called
back,
his
supervisor
said
he
“didn’t
want
to
hear
[his]
sh**.”
Mestas
said
that
when
he
returned
to
work
a
week
later,
his
supervisor
fired
him
because
“things
were
not
working
out,”
and
told
him
to
go
“take
care
of
[his]
back
and
whatever.”
Mestas
sued
under
the
ADA.
On
appeal,
the
Tenth
Circuit
found
that
he
had
raised
a
triable
issue
of
fact
about
whether
he
had
Continue Reading...
|
|
Failure to Accommodate an Employee’s Disability May Not Support a Discrimination Claim Under the ADA
|
04/09/2019
|
By: Charles McClellan
|
In
October
2018,
a
three-judge
panel
at
the
Tenth
Circuit
clarified
that
an
employee
cannot
sue
its
employer
merely
for
failing
to
provide
a
reasonable
accommodation
under
the
Americans
with
Disabilities
Act.
Now
the
court
is
going
to
take
another
look
at
that
ruling.
Laurie
Exby-Stolley,
a
county
health
inspector
in
Colorado,
sued
her
employer
for
disability
discrimination
on
the
theory
that
it
failed
to
accommodate
her
disability.
She
had
broken
her
dominant
right
arm
at
work
and
had
undergone
two
corrective
surgeries,
but
the
injury
still
impacted
her
ability
to
perform
tasks
like
lifting,
moving,
or
opening
objects
or
writing.
These
difficulties
prevented
Exby-Stolley
from
keeping
up
with
her
workload.
Her
doctor
ultimately
identified
several
permanent
restrictions
that
prevented
Exby-Stolley
from
performing
the
inspector
duties.
Over
the
course
of
several
months,
Exby-Stolley
and
her
employer
discussed
various
accommodations.
At
first,
Exby-Stolley
moved
into
a
part-time
office
job
that
was
within
her
restrictions,
but
she
did
not
enjoy
it.
She
claimed
at
trial
to
have
proposed
many
other
potential
accommodations
that
would
allow
her
to
work
as
an
inspector
or
in
other
roles,
but
the
County
rejected
all
of
her
suggestions
without
offering
any
alternatives.
According
to
the
County,
the
only
accommodation
Exby-Stolley
requested
was
that
the
County
create
a
new
position
for
her,
cobbling
together
light-duty
tasks
from
various
different
jobs.
The
ADA
does
not
require
employers
to
create
new
positions
as
a
reasonable
accommodation,
but
the
County
indicated
it
would
continue
to
look
for
other
existing
job
opportunities
within
Continue Reading...
|
|
EEOC Wellness Regulations Survive AARP Challenge
|
01/04/2017
|
By: Jason Lacey
|
A
federal
court
in
Washington,
D.C.
has
declined
to
issue
an
order
that
would
have
halted
implementation
of
the
EEOC’s
wellness
plan
regulations
under
the
ADA
and
GINA.
The
regulations
had
been
challenged
by
AARP
on
the
grounds
that
they
failed
to
adequately
protect
workers’
rights.
However,
the
court
concluded
there
was
no
risk
of
"irreparable
harm"
to
workers
in
allowing
the
regulations
to
remain
on
the
books.
This
means
the
regulations
remain
in
force
and
will
apply
as
scheduled.
The
EEOC’s
regulations
are
generally
applicable
to
wellness
programs
beginning
with
the
2017
plan
year.
The
regulations
limit
the
incentives
that
employers
may
offer
in
connection
with
a
wellness
program
that
involves
a
medical
examination
or
disability-related
inquiry.
Most
wellness
programs
that
involve
a
health
risk
assessment
or
biometric
screening
are
covered.
The
incentive
cannot
exceed
30%
of
the
cost
of
employee-only
coverage
under
the
related
health
plan
--
or
twice
that
amount
in
the
case
of
plans
that
offer
incentives
to
both
employees
and
their
spouses.The
regulations
also
impose
notice
and
confidentiality
requirements,
in
addition
to
limiting
the
amount
of
incentives.
The
EEOC’s
rules
apply
in
addition
to
other
wellness
plan
rules
under
HIPAA
and
the
ACA,
with
sometimes
inconsistent
results.
For
example:
- Under
the
HIPAA
and
ACA
regulations,
there
is
no
limit
on
the
amount
of
the
incentive
that
can
be
offered
in
a
“participation
only”
wellness
program
involving
completion
of
a
health
risk
assessment
and
biometric
screening,
but
the
same
wellness
program
generally
is
subject
to
Continue Reading...
|
|
A New Frontier -- Breastfeeding
|
05/23/2016
|
By: Donald Berner
|
Earlier
this
month,
four
breastfeeding
airline
pilots
filed
EEOC
complaints
against
Frontier
Airlines
for
refusing
to
accommodate
their
need
to
express
breast
milk
by
way
of
pumping. The
charges
allege
Frontier did
not
provide
any
accommodation
to
allow
the
employees
to
pump
regularly
and disciplined
one
employee
for
engaging
in
pumping
activity
aboard
an
airplane.
The
EEOC's
position
on
the
subject
is
clear
and
spelled
out
in
its
Enforcement
Guidance
on
Pregnancy
Discrimination
and
Related
Issues
dated
June
25,
2015:
"An
employee
must
have
the
same
freedom
to
address
such
lactation-related
needs
that
she
and
her
co-workers
would
have to
address
other
similarly
limiting
medical
conditions."
These
filings
serve
as
a
good
reminder
to
employers
that
the
EEOC
reads
the
Pregnancy
Discrimination
Act
to
include
reasonable
accommodation
obligations
similar
to
those
in
the
ADA.
Various
state
laws,
including
one
in
Kansas,
also
provide
certain
protections
for
breastfeeding
and/or
expressing
breast
milk.
Employers
should carefully
consider
any request
made
by
an
employee to
allow
for
this type
of
activity.
In
addition,
not
only
do
employers
need
to
consider
Title VII,
the Affordable Care
Act
amended
the
FLSA to
require
employers
to
provide
break
time
and
private
locations
for
pumping
activity.
It
will
be
interesting
to
see
how
Frontier
Airlines
responds
to
these
charges. Stay
tuned.
|
|
EEOC Issues Final Wellness Regulations
|
05/21/2016
|
By: Jason Lacey
|
The
EEOC
has
issued
final
regulations
under
the
ADA
and
GINA
that
address
the
extent
to
which
employers
may
use
incentives
to
encourage
employees
and
their
spouses
to
participate
in
wellness
programs
that
involve
disability-related
inquiries
or
medical
examinations.
Although
the
regulations
allow
limited
incentives,
there
are
a
number
of
conditions
and
restrictions.
And
there
are
some
important
differences
between
the
EEOC's
rules
and
other
rules
governing
wellness
programs,
such
as
guidance
under
HIPAA
and
the
ACA.
Here
are
the
highlights.
What
Wellness
Plans
Are
Covered?
These
regulations
apply
to
any
wellness
plan
that
involves
a
disability-related
inquiry
or
medical
examination.
This
will
include
most
wellness
plans
that
require
completion
of
a
health
risk
assessment
or
biometric
screening.
It
also
includes
tobacco-related
wellness
plans
that
involve
any
type
of
medical
test
to
screen
for
the
presence
of
nicotine,
but
it
does
not
include
tobacco-related
programs
that
merely
ask
an
employee
to
certify
whether
they
use
tobacco
(and
do
not
require
any
other
medical
examinations).
In
an
important
change
from
the
proposed
regulations,
the
final
regulations
apply
to
a
wellness
program
without
regard
to
whether
the
program
is
offered
in
connection
with
a
group
health
plan.
For
example,
an
employer
that
offers
a
cash
reward
to
employees
for
completing
a
health
risk
assessment
or
biometric
screening
may
be
subject
to
the
limitations
under
the
final
regulations.
What
Limits
Apply
to
Wellness
Incentives?
For
a
wellness
plan
covered
by
these
regulations,
the
incentive
offered
to
any
employee
may
not
exceed
30%
of
the
full
cost
Continue Reading...
|
|
Wellness Program Survives ADA Challenge
|
01/15/2016
|
By: Jason Lacey
|
In
a
closely
watched
case,
a
federal
judge
in
Wisconsin
has
denied
the
EEOC’s
challenge
to
a
wellness
program
maintained
by
Flambeau,
Inc.
The
EEOC
had
sued
the
employer,
alleging
the
wellness
program
violated
the
ADA.
The
wellness
program
required
employees
to
complete
a
health
risk
assessment
and
a
biometric
screening,
but
employees
completing
the
program
didn't
just
receive
a
premium
reduction
or
other
financial
incentive.
They
were
required
to
complete
the
program
as
a
condition
to
obtaining
coverage
under
the
employer’s
group
health
plan.
Employees
that
chose
not
to
participate
in
the
wellness
program
were
not
allowed
to
enroll
in
the
employer's
health
plan.
The
EEOC
alleged
that
the
wellness
program
violated
the
ADA’s
prohibition
against
involuntary
medical
examinations
and
disability-related
inquires.
Although
employees
were
not
required
to
participate
in
the
wellness
program,
the
EEOC
viewed
the
penalty
for
nonparticipation
(loss
of
access
to
the
group
health
plan)
as
too
coercive,
effectively
making
the
wellness
program
an
involuntary
program.
But
the
court
side-stepped
the
question
of
voluntariness
and
concluded
that
a
safe
harbor
under
the
ADA
(which
allows
for
bona
fide
underwriting
activities)
applied
to
the
wellness
program.
Thus,
the
program
did
not
violate
the
ADA
without
regard
to
whether
it
was
voluntary.
The
court's
decision
to
apply
the
ADA's
underwriting
safe
harbor
is
consistent
with
a
2012
federal
appeals
court
decision
(Seff
v.
Broward
County),
but
the
EEOC
has
indicated
it
strongly
agrees
with
that
interpretation
of
the
ADA.
So
we
might
expect
further
sparring
between
the
EEOC
and
employers
who
choose
Continue Reading...
|
|
Leave as an ADA Accommodation: How Much is Enough
|
11/16/2015
|
By: Donald Berner
|
Consider
this
fact
pattern:
An
employee
has
a
back
problem
that
stretches
out
over
a
long
period
of
time.
At
some
point,
the
back
problem
becomes
severe
enough
the
employee
goes
out
on
FMLA
leave.
During
the
twelve
weeks
of
FMLA
leave,
the
employee
ends
up
scheduling
a
surgery.
The
surgery
takes
place
near
the
end
of
the
twelve
week
FMLA period
and
the
employee
has
a
set
of
lifting
restrictions
that
don't
allow
the
employee
to
perform
the
essential
functions
of
the
position.
Under
those
facts,
there
is
no
way
the
employee
can
return
to
work
at
the
conclusion
of
the
FMLA
leave. Now
what?
Employers face
fact
patterns like
this
one
on
a
fairly regular
basis.
A
reasonable
accommodation
under
the
ADA
might
be
to
provide
the
employee with
additional
leave
beyond
the
protected twelve-week
FMLA absence.
These
cases
are
usually
fact-specific and
can
be
tricky
to
resolve.
A
federal
court
in
Wisconsin
recently
decided
a
case with
this
set
of
basic
facts.
In
the
case,
the
employee requested
another
two
to three
months
of
additional
leave
to
allow
for
recovery
from
the
surgery. The
employer
denied the
request
for
the
additional
leave
and
ended
the
employment
relationship. As
you
might
expect,
the
employee
brought
an
ADA claim
against
the
employer. In what
might
be
a
surprise
for
employers,
the
court ruled
in favor
of the
employer.
The
court
focused
on
the
fact
the
employee
had
not
been
able
to
perform
the
job
duties
for
the three
months
during
the
FMLA leave
and
that
the
anticipated
two
to
three
additional
months
was
too
long
for
the
employee
to
be
away
from
work.
Keep
in
Continue Reading...
|
|
Federal Legislation Would Clarify Wellness Plan Treatment Under ADA and GINA
|
03/16/2015
|
By: Jason Lacey
|
Federal
legislation
has
been
introduced
that
would
clarify
the
treatment
of
employer
wellness
plans
under
the
ADA
and
GINA.
It
is
styled
as
the
"Preserving
Employee
Wellness
Programs
Act."
Under
the
act,
any
wellness
plan
that
meets
the
requirements
imposed
by
regulations
issued
under
HIPAA
and
the
ACA
would
not
be
treated
as
violating
the
ADA
or
Title
I
or
Title
II
of
GINA
solely
because
the
plan
provides
a
reward.
The
legislation
would
respond
to
confusion
over
the
EEOC's
position
on
how
employer
obligations
under
the
ADA
and
GINA
intersect
with
the
HIPAA
and
ACA
rules
that
allow
providing
a
reward
(or
penalty)
to
employees
who
participate
in
a
"health-contingent"
wellness
program.
Although
the
EEOC
has
never
taken
a
formal
regulatory
position
on
the
issue,
it
has
sued
several
employers
over
their
wellness
programs,
including
at
least
one
program
that
appeared
to
satisfy
the
requirements
under
HIPAA
and
the
ACA
(see
prior
articles
here,
here,
and
here).
The
EEOC
is
said
to
be
working
on
a
set
of
regulations
to
address
this
issue
that
may
be
near
release.
Employers
will
want
to
keep
an
eye
on
both
these
legislative
and
regulatory
developments,
as
they
could
have
an
important
(and
hopefully
helpful)
impact
on
wellness
plan
design.
A
copy
of
Senate
Bill
620,
the
Preserving
Employee
Wellness
Programs
Act,
is
here.
|
|
EEOC Challenges Another Wellness Plan Under the ADA
|
10/06/2014
|
By: Jason Lacey
|
The
EEOC
has
announced
(here)
the
filing
of
another
lawsuit
challenging
an
employer’s
wellness
plan
on
the
basis
that
it
violates
the
ADA.
Like
a
similar
case
filed
in
August
(see
coverage
here),
the
EEOC
alleges
that
the
employer’s
plan
fails
under
the
ADA
because
it
is
not
a
voluntary
program.
Background.
The
wellness
plan
at
issue
in
this
case
sounds
fairly
typical.
Employees
apparently
were
asked
to
submit
to
a
biometric
screening
and
complete
a
health
risk
assessment.
So
far,
so
good.
But
employees
who
declined
to
participate
in
the
wellness
plan
are
said
to
have
had
their
health
plan
coverage
canceled
or
to
have
been
required
to
pay
100%
of
the
cost
of
coverage
under
the
employer's
health
plan.
By
comparison,
employees
who
participated
in
the
wellness
plan
were
only
required
to
pay
25%
of
the
cost
of
coverage
under
the
employer's
health
plan.
Something
Doesn’t
Add
Up.
The
facts
as
stated
by
the
EEOC
aren’t
totally
consistent.
First
they
say
health-plan
coverage
was
canceled
when
employees
declined
to
participate
in
the
wellness
plan.
Then
they
say
higher
health-plan
costs
were
shifted
to
employees
who
declined
to
participate
in
the
wellness
plan.
It
can’t
be
both
-
at
least
not
for
the
same
employees.
So
we
may
not
have
a
clear
picture
of
the
plan
in
question
at
this
point.
Voluntariness.
But
whatever
the
facts
may
be,
we
can
see
that
the
EEOC
is
clearly
focused
on
voluntariness.
According
to
the
press
release:
“Having
to
choose
between
complying
with
Continue Reading...
|
|
EEOC Files ADA Lawsuit Over Employer Wellness Plan
|
09/05/2014
|
By: Jason Lacey
|
The
EEOC has
filed
a
lawsuit
against
a
Wisconsin
employer,
alleging
that
the
employer's
wellness
plan
violates
the
ADA.
According
to
the
EEOC's
press
release
(here),
this
is
the
first
lawsuit
by
the
EEOC
directly
challenging
a
wellness
program
under
the
ADA.
Background.
Although
wellness
plans
are
increasingly
common,
they
raise
a
complex
array
of
legal
issues.
Regulations
addressing
compliance
with
the
HIPAA
nondiscrimination
requirements
are
well-developed
now.
But
there
is
virtually
no
guidance
addressing
the
manner
in
which
the
ADA
applies
to
wellness
plans.
In
particular,
the
ADA
prohibits
employers
from
requiring
employees
to
undergo
involuntary
medical
examinations,
unless
those
examinations
are
clearly
job-related,
and
it
has
never
been
clear
where
the
line
is
on
"voluntariness."
Bad
Facts.
Unfortunately,
the
facts
of
this
case
are
bad
enough
that
it
may
not
provide
much
meaningful
guidance.
The
EEOC's
lawsuit
alleges
that
the
employer
in
this
case
required
employees
to
participate
in
its
wellness
program
(including
what
sounds
like
a
fairly
typical
health
questionnaire
and
biometric
screening)
and
penalized
those
who
refused
by
requiring
them
to
pay
100%
of
the
cost
of
coverage
under
the
employer's
health
plan,
plus
a
$50/month
surcharge.
Additionally,
there
is
an
allegation
that
the
employer
then
terminated
an
employee
for
declining
to
participate
in
the
wellness
program.
Results
Not
Typical.
All
of
these
facts,
if
true,
go
well
beyond
what
most
typical
employer
wellness
programs
require
or
impose
and
would
seem
to
be
a
fairly
clear
violation
of
the
ADA's
voluntariness
requirement.
So
it's
not
clear
how
much
Continue Reading...
|
|
EEOC Provides Informal Wellness Plan Guidance
|
04/01/2013
|
By: Jason Lacey
|
One
of
the
murkier
issues
with
wellness
plans
is
the
manner
in
which
they
intersect
with
the
Americans
with
Disabilities
Act
(ADA).
I
discuss
some
of
the
background
on
the
issue here. A
recent
EEOC
letter
(here)
provides
an
"informal
discussion"
of
how
the
ADA
applies
to
a
particular
type
of
wellness
plan.
The
Plan.
The
wellness
plan
at
issue
waived
the
deductible
under
a
health
plan
for
participants
with
serious
medical
conditions
(e.g.,
diabetes)
who
enrolled
in
a
disease-management
program.
Although
the
wellness
program
did
not
expressly
require
participants
to
complete
a
health
risk
assessment,
the
EEOC
assumed
that
participants
needed
to
make
some
disclosure
about
their
health
status
to
their
employer
to
become
eligible
for
the
plan,
thereby
implicating
the
ADA.
Voluntariness. The
EEOC
reiterated
that,
because
a
wellness
plan
involves
an
employer
inquiry
into
an
employee's
medical
condition,
the
wellness
plan
must
be
voluntary.
A
plan
is
voluntary
so
long
as
participation
is
not
required
and
employees
who
choose
not
to
participate
are
not
penalized.
The
plan
in
this
case
did
not
penalize
non-participants,
but
it
did
provide
a
reward
(waiver
of
deductible)
for
participants.
The
EEOC
would
not
take
a
position
on
whether
the
availability
of
a
reward
renders
a
plan
involuntary.
Reasonable
Accommodation.
The
EEOC
also
noted
that
a
wellness
plan
generally
must
provide
a
reasonable
accommodation
to
individuals
who
are
unable
to
meet
the
required
outcomes
or
engage
in
required
activities
due
to
a
disability.
For
example,
if
a
plan
requires
a
participant
to
comply
with
a
recommended
Continue Reading...
|
|
Beware of Your Job Descriptions
|
03/28/2013
|
By: Donald Berner
|
Every
so
often
we
are
given
a
gentle
reminder
to
pay
close
attention
to
the
job
descriptions
in
place
at
our
companies.
In
a
recent
Americans
with
Disabilities
Act
(ADA) case
from
Maryland,
the
employer
failed
to
obtain
summary
judgment
because
of
the
essential
functions
listed
in
the
employee's
job
description.
This
means
the
plaintiff
gets
to
present
his
case
to
the
jury.
The
key
issue
revolved
around
whether
having
a
commercial
drivers
license
was
an
essential
function
of
the supervisory
position
held
by
the
plaintiff.
The
job
description
listed
the
commercial
drivers
license
as
a
preference
for
the
supervisor,
as
opposed
to
a
required
item
in
the
basic
driver
job
description.
This
small
difference
is
what
led
to
the
employer
ending
up
in
what
is
now
a
pretty
tough
spot.
So
make
sure
you
look
at
your
job
descriptions
and
carefully
weigh
the
use
of
"preferred"
versus
"required."
|
|
Do You Know? Job Protection for Employees Who Experience Domestic Violence
|
10/31/2012
|
By: Boyd Byers
|
On
October
12,
the
EEOC
issued
guidance
titled
“Questions
and
Answers:
The
Application
of
Title
VII
and
the
Americans
with
Disabilities
Act
to
Applicants
or
Employees
Who
Experience
Domestic
or
Dating
Violence,
Sexual
Assault,
or
Stalking.”
The
guidance
recognizes
that
federal
EEO
laws
do
not
prohibit
discrimination
on
these
bases,
per
se,
but
explains
how
these
laws
may
apply
to
such
situations.
Examples
include:
- A
manager
fires
a
female
employee
after
learning
she
was
subjected
to
domestic
violence
because
he
fears
the
"potential
drama
battered
women
bring
to
the
workplace.”
- An
employer
refuses
to
allow
an
employee
extra
time
off
work
for
treatment
of
anxiety
or
depression
resulting
from
domestic
violence.
But
do
you
know
that
Kansas
law
specifically
allows
employees
to
take
time
off
work
to
deal
with
the
effects
of
domestic
violence
or
sexual
assault?
Kansas
employers
are
required
to
allow
employees
time
off
from
work:
- To
obtain
restraining
orders
or
other
injunctive
relief
in
domestic
violence
or
sexual
assault
situations;
- To
seek
medical
attention
for
injuries
caused
by
domestic
violence
or
sexual
assault;
or
- To
obtain
services
from
a
domestic
violence
or
sexual
assault
center
shelter.
An
employee
should
give
the
employer
reasonable
advance
notice
of
the
intention
Continue Reading...
|
|
Supreme Court Begins New Term
|
10/02/2012
|
By: Boyd Byers
|
Yesterday
the
Supreme
Court
officially
opened
its
2012-2013
term. The
justices
denied
review
of
304
cases,
including
48
employment-related
decisions. One
of
these
cases
is
particularly
significant
for
Kansas
employers.
In
that
case,
the
Court
let
stand
a
ruling
by
the
U.S.
Court
of
Appeals
for
the
Tenth
Circuit
in
favor
of
a
Kansas
school
district. The
appeals
court
had
held
that
the
Lilly
Ledbetter
Fair
Pay
Act
applies
only
to
claims
that
employees
did
not
receive
equal
pay
for
equal
work,
and
that
this
does
not
encompass
demotion
claims,
even
if
the
demotion
results
in
a
pay
cut. (The
Ledbetter
law,
as
you
may
recall,
amended
Title
VII,
the
ADEA,
and
the
ADA
to
provide
that
the
time
for
filing
a
pay
discrimination
claim
is
triggered
with
each
paycheck
that
reflects
a
past
discriminatory
compensation
decision
or
practice.)
Accordingly,
the
Ledbetter
Act
did
not
excuse
two
school
custodians’
failure
to
file
a
timely
age
discrimination
claim
within
300
days
of
learning
of
their
demotions. The
case
is
titled
Almond
v.
Unified
Sch.
Dist.
501.
|
|
Court Rejects Challenge to Employer's Wellness Plan
|
09/08/2012
|
By: Jason Lacey
|
In
a
closely
watched
case,
a
federal
appeals
court
in
Atlanta
has
rejected
a
challenge
to
a
wellness
plan
maintained
by
Broward
County,
Florida
for
its
employees.
The
case
was
brought
by
a
former
employee,
who
claimed
the
wellness
plan
violated
the
ADA
by
improperly
requiring
employees
to
submit
to
medical
examinations.
As
background,
the
ADA
generally
prohibits
employers
from
requiring
employees
to
undergo
medical
examinations
or
otherwise
inquire
of
employees
whether
they
are
disabled.
But
purely
voluntary
medical
examinations
are
permitted
(as
are
bona
fide
fitness-for-duty
examinations),
and
the
ADA
expressly
allows
employers
to
establish,
sponsor,
observe,
or
administer
the
terms
of
a
bona
fide
benefit
plan
when
those
terms
are
based
on
underwriting
risks,
classifying
risks,
or
administering
risks.
This
latter
rule
is
sometimes
referred
to
as
an
underwriting
"safe
harbor"
under
the
ADA.
The
wellness
plan
in
this
case
was
fairly
typical.
Employees
participating
in
the
plan
were
subject
to
a
health-risk
assessment
and
a
biometric
screening
(a
finger
prick
for
cholesterol
and
glucose
testing).
Participation
was
not
required,
but
employees
who
did
not
participate
were
charged
an
extra
$20
per
pay
period
for
their
health-insurance
coverage.
The
court
concluded
the
plan
qualified
for
the
underwriting
safe
harbor
under
the
ADA
and
so
did
not
violate
the
ADA.
The
wellness
program
was
deemed
to
be
a
"term"
of
a
bona
fide
benefit
plan
(the
employer's
major-medical
plan),
even
though
there
was
no
written
document
for
the
wellness
program.
There
is
a
well-worn
axiom
that
bad
facts
make
bad
law.
This
Continue Reading...
|
|
Leave as an ADA Accommodation
|
08/30/2012
|
By: Donald Berner
|
The
10th
Circuit
Court
of
Appeals
(the
federal
appellate
court
responsible
for
Kansas
and
other
midwestern
states)
decided
a
case
involving
leave
as
an
accommodation
under
the
Americans
with
Disabilities
Act
(ADA).
In
the
case,
the
employer
provided
significant
amounts
of
leave
time
for
a
disabled
employee
over
a
several-year
period.
After
providing
leave
as
an
accommodation,
the
employer
eventually
discharged
the
employee
because
of
the
uncertainty
surrounding
her
return
to
work.
In
its
decision,
the
10th
Circuit
confirmed
that
an
employer
is
not
required
to
provide
an
indefinite
leave
of
absence
as
an
accommodation
under
the
ADA.
In
addition,
the
court
referenced
the
reasonableness
of
a
leave
of
absence,
mentioning
that
a
leave
of
four
months
is
reasonable
and
that
a
leave
of
six
months
may
not
be
reasonable.
Employers
can
utilize
these
guideposts
in
assessing whether
to
provide
an
employee a
leave
of
absence
as
an
accommodation
for
a
disability.
Finally,
congratulations
to Jim
Oliver,
Bud
Cowan,
and
Tara
Eberline of Foulston
Siefkin's
Overland Park
office
for
their
successful
defense
of
the
defendant
in
this
particular
case.
To
read
the
opinion
in
its
entirety
click
here.
|
|
EEOC Says High School Diploma Requirement May Violate ADA
|
04/09/2012
|
By: Boyd Byers
|
About
a month
from
now
high
school seniors
will
be
donning
funny
looking
caps
and
gowns
and
parading
across
stages
to
receive their
hard-earned
diplomas.
But
employers
who
require
a
high
school
diploma
or GED
as
a
condition
of
employment
need
to
make
sure this
requirement is
job-related
and
consistent
with
business
necessity,
and
that
it
doesn't
screen out
individuals
who
cannot
obtain
a
diploma
because
of
a
learning
disability.
The
Equal
Employment
Opportunity
Commission
recently
published new
guidance
on whether
an
employer's
requirement
that
a
job
applicant
have
a
high
school
diploma
may
violate
the
Americans
with
Disabilities
Act.
The
guidance
is
in
response
to
an
informal
discussion
letter
issued
by
the
EEOC
last
November
that
created
significant
commentary
and
conjecture.
The
guidance
explains
that
requiring
a
high
school
diploma
for
a
position
is
not
illegal.
Employers
may
continue
to
have
high
school
diploma
requirements
and,
in
the
vast
majority
of
cases,
they
will
not
have
to
make
exceptions
to
them.
However,
according
to
the
EEOC,
if
an
applicant
tells
an
employer
she
cannot
meet
this requirement
because
of
a
disability,
an
employer
may
have
to
allow
her
to
demonstrate
the
ability
to
do
the
job
in
some
other
way.
This
may
include
considering
work
experience
in
the
same
or
similar
jobs,
or
allowing
her
to
demonstrate
performance
of
the
job’s
essential
functions.
The
guidance
clarifies
that
the
ADA
only
protects
someone
whose
disability
makes
it
impossible
for
him
to
get
a
diploma.
It
would
not
protect
someone
who
simply
decided
not
to
get
a
high
school
diploma.
The
employer
can
require
Continue Reading...
|
|
EEOC Issues Guidance to Employers about Disabled Veterans
|
03/05/2012
|
By: Boyd Byers
|
Three
million
veterans
have
returned
from
military
service
over
the
past
decade,
and
another
one
million
are
expected
to
return
to
civilian
life
during
the
next
five
years
because
of
the
anticipated
drawdown
of
operations
in
the
Middle
East.
In
recent
years,
the
percentage
of
veterans
who
report
having
service-connected
disabilities
has
risen.
About
twenty-five
percent
of
recent
veterans
report
having
a
service-connected
disability,
as
compared
to
about
thirteen
percent
of
all
veterans,
according
to
the
EEOC.
The
EEOC
recently
released
new
guidance
explaining
how
the
2008
changes
to
the
Americans
with
Disabilities
Act
affect
employment
of
veterans
with
disabilities.
One
of
the
guides
is
for
employers;
the
other
is
for
veterans.
“Veterans
and
the
Americans
with
Disabilities
Act: A
Guide
for
Employers”
explains
how
protections
for
veterans
with
disabilities
differ
under
the
ADA
and
the
Uniformed
Services
Employment
and
Reemployment
Rights
Act
(USERRA),
and
how
the
ADA
applies
to
recruiting,
hiring,
and
accommodating
veterans
with
disabilities.
You
can
link
to
this
guidance
by
clicking
here.
|
|
Automatic Termination Policies May Equal Automatic Trouble
|
02/28/2012
|
By: Donald Berner
|
As
most
of
you
have
probably
followed,
the
ADA was
amended
a
couple
of
years
ago
to
expand
the
definintion
of disability.
The
EEOC issued
regulations
in
the
spring
of
2011
designed
to
add
some
additional
clarity
regarding
the
ADA Amendments
Act.
One
of
the
items
we
flagged
at
that
time
was
the
EEOC's
anticipated
hostility
towards
employer
policy
materials
containing
an
automatic
termination
provision
for
employees
absent
a
specific
length
of
time.
As
predicted,
the
EEOC has
successfully
brought
actions
against
employers
with
policies
of
this
nature.
Employers
still
utilizing a
policy with
automatic
termination
provisions
would
be
wise
to
review
and
amend
those
policy
materials
in
light
of
the
EEOC's
stance.
The
key
for
employers
is
to
make
sure
the
policy
provides
for
an
interactive
accommodation
process
to
occur
rather
than
a
leave
of
absence
length
triggering
an
automatic
outcome.
As
long
as
an
employer
evaluates
each
employee
situation
on
a
case-by-case
basis,
the
risk
of
an
ADA violation
drops
dramatically
(assuming
the
employer
properly
accounts
for
the
ADA requirements).
Employers
with
an
automatic
termination
trigger can
expect that the
EEOC
is
likely
to
deem
any
termination
based
on
the
trigger as
a
violation
of
the
ADA.
|
|
Court Is Now In Session
|
10/03/2011
|
By: Boyd Byers
|
October
is
my
favorite month
of
the
year.
Warm,
sunny
days,
followed
by
cool,
crisp
nights.
Colorful
foliage.
Fall
festivals.
College
football.
Playoff
baseball.
And,
of
course,
the
start
of
another
U.S.
Supreme
Court
session.
The
Supreme
Court
reconvened
today,
the
first
Monday
in
October. There
are
several
employment-law-related
cases
on
the
docket.
Perhaps
the
most-anticipated
case
before
the
Justices
is
the
legal
challenge
to
the
Affordable
Care
Act
(health
care
reform
law).
Another
closely
watched
case
will
address
whether
Arizona’s
tough
immigration
law
is
preempted
by
federal
law.
The
High
Court
will
also
decide
whether
the
“ministerial
exemption”
to
the
ADA
applies
to
a
religious
teacher
at
a
church
school,
and
whether
states
can
be
sued
under
the
FMLA’s
“self-care”
provision
for
failing
to
provide
employees
with
12
weeks
of
unpaid
leave
for
their
own
serious
health
condition.
Kansas
Employment
Law
Blog
will
keep
you
up
to
date
as
these
and
other
cases
affecting
employers
are
decided.
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Leave of Absence and the ADA Part II
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03/29/2011
|
By: Donald Berner
|
As
I
wrote
last
week,
the
interaction
of
the
ADA obligation
to
provide
a
reasonable
accommodation
and
the
employer's leave
of
absence policy
can
be
tricky.
Beyond
reviewing
policies
to
make
sure
there
are
no
ADA time
bombs
in
your
policy
manual,
it
also
makes
sense
to
spend
some
time
thinking
about
how
to
handle
potential
ADA issues
and
accommodations
before
the
situation
arises.
The
key
to
the
ADA accommodation
process
isn't
necessarily
the
end
outcome
as
much
as
it
is
the
interactive
process
between
the
employer
and
the
employee.
It
is
important
that
a
trained
HR person
is
involved
with
any
employee
situation
where
ADA
issues
could
be
involved.
In
fact,
it
makes
sense
for
an
employer
to
assign
all
accommodation
and
return
to
work
issues
to
a
centralized
HR person
(or
team) due
to
the
potential
complexity
of
the
issues
that
may
be
involved.
This
focal
person
(or
team)
will
want
to
ensure
a
good
interactive
accommodation
process
is
used
in
each
of
these
cases.
As
the
employer
works
through
the
process
with
the
employee,
it
is
important
to
keep
good
notes
of
the
options
discussed. These
discussions
may
result
in
the
identification
of
an
accommodation
that
resolves
any
concerns
or
may
result
in
being
unable
to
find
a
reasonable
accommodation. Either
way,
the
documentation
of the
interactive
process,
including any
offered
accommodation
and
the
employee's
response,
will
be
valuable
if
the
employee
later
claims the
employer
failed
to
provide
a
reasonable
accommodation.
For
more
information
on
the
ADA and
various
accommodation
issues
click
here.
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|
EEOC Issues Final ADAAA Regs
|
03/25/2011
|
By: Boyd Byers
|
The
EEOC
has
finally
issued
its
long-awaited
regulations
interpreting
the
ADA
Amendments
Act.
The
final
regulations
are in
today's Federal
Register.
Here's
the link
(guaranteed
to
make
your
eyes
glass
over):
http://www.federalregister.gov/articles/2011/03/25/2011-6056/regulations-to-implement-the-equal-employment-provisions-of-the-americans-with-disabilities-act-as#h-73
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|
Leave of Absence and the ADA
|
03/24/2011
|
By: Donald Berner
|
As
most
of
you
know,
the
ADA was
amended
a
couple
years
ago
making
it
easier
for
individuals
to
qualify
for
protection
due
to
the
expanded
definition
of
a
disability. One
danger
area
for
employers
is
dealing
with
individuals
needing
a
leave
of
absence
or additional
leave
as
it
relates
to a
situation
that
may
be defined
as
a
disability
under
the
ADA.
This
can
arise
after
FMLA leave
has
been
used
and
expires,
or
for
those
non-FMLA employers/situations
at
the
end
of a
standard leave
of
absence. It
is
at
this
juncture
that
employers
sometimes
find themselves
in
dangerous
waters. What
should
an
employer
do
at
the
end
of
an
approved
leave
of
absence
(FMLA or
otherwise)
when
the
employee
isn't
quite
ready
to
return
to work? Does
the
employee
have
some
expected
return
date
that
is
just
a
few
days
or
weeks
away?
Is
the
return
a
bit
more
uncertain?
How
employers
resolve
this
issue
can
be
the
difference
between
smooth
exit
and
an
EEOC
complaint/lawsuit.
While
just
how
much
leave
is
a
reasonable
accommodation
under
the
ADA can
be unclear,
it
is
clear
that
accommodating an
indefinite
or
uncertain
return
to
work
date
is
not required.
In
addition
to
having
sometimes
murky
factual
information,
some
employers
have
a
leave
policy
with an
automatic employment
termination
provision
that
triggers at
a
certain
point. For
example,
if
an
employee
has
been
on
leave for six
months,
his
or her employment
is
automatically
terminated. The EEOC is
focusing
some
negative
attention
on
this
type
of
leave
of
absence
policy
and
taking
the
position
that
such
a
clause
violates
the
ADA.
Given
this
scrutiny,
it's probably
a
good
idea
to review your
leave
of
absence
Continue Reading...
|
|
How Do You Solve A Problem Like Charlie?
|
03/11/2011
|
By: Boyd Byers
|
Yesterday
I
blogged
about
fanciful
legal
issues
you
might
encounter
if
the
newly
unemployed
Charlie
Sheen were
to
show
up
at
your
doorstep
with
application in
hand. We
were
not
the
only
employment
lawyers thinking
about
Charlie.
Click
here
to
read
an
article
that
examines Charlie's
termination,
his
resulting
lawsuit,
and some
lessons
HR
professionals
can
learn
from
this
tumultuous Tinseltown
tale.
|
|
|
Editors
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers, the General Employment Law Guy
Jason Lacey, the Employee Benefits Guy
Additional Sources

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