EEOC Issues Final Rules on Wellness Programs Under the ADA and GINA
Lexology
This week the Equal Employment Opportunity Commission (EEOC) issued final rules providing guidance on the application of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA) to employer-sponsored wellness programs. As we discussed in prior alerts, in 2015 the EEOC issued proposed rules for employer-sponsored wellness programs under the ADA and GINA. The final rules are largely similar to the proposed rules, but do include some important modifications based on public comments the EEOC received. Below are the most significant requirements of the final rules.
EEOC Issues Guidance on the Use of Leave as a Reasonable Accommodation Under the ADA
Lexology
The Americans with Disabilities Act (ADA) has required employers to provide reasonable accommodations to disabled employees since its passage in 1990. Although the ADA is now more than 25 years old, many employers still struggle with the question: When is an extended leave of absence considered a reasonable accommodation? The answer seems simple – an extended leave of absence is a reasonable accommodation that must be offered to a disabled employee unless the leave would impose an undue hardship on an employer’s operations or finances. On May 9, 2016, however, the EEOC issued a Resource Document addressing employer-provided leave, noting that it “continues to receive charges indicating that some employers may be unaware of Commission positions about leave and the ADA.”1
Employer confusion may arise from the interplay of the ADA with other regulations affecting employee leave, including the Family and Medical Leave Act (FMLA) and state workers’ compensation laws. The FMLA guarantees sick or injured employees 12 weeks of unpaid medical leave, but “[e]mployees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated ‘12 month period’ no longer have FMLA protections of leave or job restoration.”2 In other cases, a disabled employee may not be eligible for FMLA leave and an employer may not offer leave as an employee benefit. The EEOC’s Resource Document clarifies that even in situations where a disabled employee is not eligible for medical leave under an existing law or policy, an employer must still engage in the “interactive process” to determine whether it can provide leave as a reasonable accommodation without causing an undue hardship.
Failure to Hire DOT Driver After Positive Drug Test Result Leads To ADA Claim
Lexology
A South Carolina company that hauls gasoline, diesel fuel and ethanol throughout the country will face an Americans with Disabilities Act suit brought by a rejected DOT driver applicant with a sleep disorder for which he was prescribed an amphetamine (Dexedrine), the U.S. Court of Appeals in Richmond has decided, reversing a lower’s court’s dismissal of John Lisotto’s lawsuit. Lisotto v. New Prime, Inc., 2016 U.S. App. LEXIS 8011 (4th Cir., No. 15-1273, decided May 3, 2016) (not officially reported).
Fourth Circuit Rejects Motor Carrier's Defense in Refusing to Hire Driver Diagnosed with Narcolepsy
JD Supra
The Americans with Disabilities Act prohibits employers from refusing to hire qualified individuals with a disability on the basis of their condition, if they can perform the essential functions of the job with or without accommodation. Earlier this month in an unpublished opinion, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) reversed dismissal of an ADA claim filed by a truck driver who claims that he was excluded from a job based on a positive drug test resulting from medication used to treat narcolepsy.
EEOC Emphasizes Leave Under ADA
Lexology
On May 9, the EEOC issued a resource document on employer-provided leave as an accommodation for disabled employees. The guidance should pique the interest of employers. As I noted in a previous post, EEOC data shows a significant increase over the past few years in charges of disability discrimination. In this guidance, the EEOC reminds employers to consider offering leave as a way to avoid lawsuits.
Equal Access to Employer-Provided Leave Policies
Many employers that provide personal days do not require a reason to take it. According to the EEOC, employers with this type of “open” leave policy should not add requirements or limits just because an employee requests the time off for a medical reason. If an employee has personal days available and wants to use them to accommodate a disability, the company should allow it. Do not force the use of other types of time off like sick leave.
Leave Beyond the Policy
An employer’s obligation to provide leave to a disabled worker does not stop when the leave the company provides under its benefit policy runs out. Disabled employees may in fact be entitled to unpaid leave after they have exhausted employer-provided leave, so long as it “enables an employee to return to work following the period of leave.” Likewise, employers should consider offering unpaid leave as an accommodation after an employee’s FMLA runs out, or even if the employer does not offer leave at all. As the EEOC puts it: “The purpose of the ADA’s reasonable accommodation obligation is to require employers to change the way things are customarily done.”
Ohio pregnancy accommodation bill much more “accommodating” to employees than ADA
Lexology
A bill named the Pregnancy Reasonable Accommodation Act was recently introduced in the Ohio Senate (S.B. 301). Although the bill is only in its infancy, it has bipartisan support in the Senate and could quickly be ratified. If the bill becomes law, it could dramatically increase the rights of pregnant employees and place additional unwanted burdens on employers.
The bill would require employers to grant pregnant employees a reasonable accommodation, which could include:
- modifying equipment, seating or uniforms
- providing assistance with manual labor
- providing light duty work
- modifying schedules
- restructuring jobs
- providing temporary transfer to a less strenuous or hazardous position
- providing break time to express breast milk
- providing time off to recover from childbirth.
LA County Jails Must Address Mental Health
Courthouse News Service
A federal judge Tuesday refused to dismiss claims that Los Angeles County violates mentally ill inmates' constitutional rights by failing to provide them with adequate services before releasing them from jail.
U.S. District Judge Dean Pregerson denied the county's motion for a judgment on the pleadings, allowing eight people who suffer from severe mental illnesses - including schizophrenia, bipolar disorder and manic depression — to press their claims that county jails' discharge procedures violate the Americans with Disabilities Act and the Constitution.
JD Supra
In a recent U.S. Supreme Court case about pregnancy discrimination, Justice Breyer asked: “Why, when the employer accommodated so many, could it not accommodate pregnant women as well?” As an employer, that is a question you should now be asking when preparing, reviewing, or updating your company’s accommodation policies.
Many employers have policies and practices to ensure accommodation of disabled workers or those with temporary injuries or disabilities. However, employers may be overlooking their legal obligations to accommodate another group of workers: pregnant women who have pregnancy-related work limitations.
In Young v. United Parcel Service, the Court addressed whether UPS’s treatment of a pregnant employee constituted pregnancy discrimination. Its decision effectively broadens the range of accommodations employers must provide to a pregnant employee.
Peggy Young was a UPS delivery driver. When Young became pregnant, her medical providers instructed her not to lift more than 20 pounds. As a result, Young was unable to fulfill UPS’s standard 70-pound lifting requirement. Young was not assigned to light duty or an alternate position, but was required to take a leave of absence while the lifting restriction remained in place. She was forced to take unpaid leave and lost her medical coverage during that time.
Disabled man accuses shopping mart operator of discrimination
The Louisiana Record
An Orleans Parish man with a disability is suing a shopping mart operator, alleging discrimination against the disabled.
Francis Falls filed a lawsuit April 28 in U.S. District Court for the Eastern District of Louisiana against Check Mart of Louisiana, alleging violation of the Americans with Disabilities Act by by denying the plaintiff equal and full access to its property.
Several “drive-by” ADA lawsuits filed against Breckenridge businesses
Summit Daily News
Several Breckenridge restaurants were hit by disability lawsuits filed by a Florida man over a four-month period.
Plaintiff Santiago Abreu, of West Palm Beach, Florida, filed at least eight complaints against local restaurants, including the Hearthstone, Downstairs at Eric’s and Kenosha Steakhouse, in the U.S. District Court of Colorado between November 2015 and February 2016.
“We’ve been scrambling to try to help our members out there,” said Carolyn Livingston, communications director for the Colorado Restaurant Association, of which several of the defendants are members. “It’s interesting because they always seem to target historic towns that rely heavily on tourism.”
Breckenridge isn’t the only town that has been hit by what some call “drive-by” lawsuits, filed by “testers” who visit businesses to see if they are in compliance with the Americans with Disabilities Act. Abreu has also filed complaints in Arizona, Florida, Durango and Telluride, most recently.
PR Newswire
Today, the federal district court issued its order in large part denying the City of San Gabriel's motion to dismiss the lawsuit brought by Dr. Sakhrani challenging the City's denial of conditional use permits to allow him to build a dialysis center.
Dr. Sakhrani had worked closely with City staff for almost 18 months to ensure that the building complied with the City codes. The City's Planning Commission approved permits for the project, but the project was blocked on appeal by the City Council.
The court allowed Dr. Sakhrani to proceed with his lawsuit which alleges that the City violated the Americans with Disabilities Act, the Rehabilitation Act, and the Unruh Civil Rights Act in discriminating against patients with disabilities. The lawsuit also alleges that the City Council members were biased and had conflicts of interest, and failed to provide Dr. Sakhrani with a fair hearing. In its ruling, the court also held that the City Council members who were individually named as defendants are not immune from liability for their actions. The lawsuit also requests that the City pay Dr. Sakhrani's attorneys' fees.
IT firm Mphasis launches digital accessibility practice
ETCIO.com
Mphasis already has a strong history of advocacy and success in accessibility; having received various awards for inclusion and employment of individuals with disabilities.
Oppose The “ADA Compliance for Customer Entry to Stores and Services (ACCESS) Act 2015” (H.R. 241)
Civilrights.org
Oppose the “Americans with Disabilities (ADA) Education and Reform Act of 2015” (H.R. 3765)
Civilrights.org
Overweight employee believes she's denied promotions due to her weight
13newsnow.com