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...

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."

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.       

• 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 to take time off under this law, unless such notice is not feasible.The employer can      Continue Reading...

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 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...

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.  

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...

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.                                                 

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.

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.

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.

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

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...

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.