eNews Park Forest
The Justice Department announced today that it reached settlement agreements with the city of Parowan, Utah; the city of Española, New Mexico; and the village of Ruidoso, New Mexico. The agreements resolve investigations of each public entity under Title I of the Americans with Disabilities Act (ADA). The investigations found that each jurisdiction’s online employment application asked questions about disabilities in violation of the ADA. The ADA does not permit employers to inquire as to whether an applicant is an individual with a disability or as to the nature of such disability before making a conditional offer of employment. Under Section 503 of the Rehabilitation Act of 1973, however, federal contractors subject to affirmative action requirements must invite an applicant voluntarily to self-identify as an individual with a disability, consistent with certain requirements.
Settlement Agreement:
Daily Comet
A Thibodaux resident who has spina bifida and must use a wheelchair is suing Subway and a franchisor, claiming a Raceland restaurant violates the Americans with Disabilities Act.
Can you fire employee for threatening suicide?
Business Management Daily
What should you do if you learn one of your employees brandished a gun and threatened suicide, but a doctor released him back to work? Shouldn’t you be concerned about safety?
The case: One day after work, a North Dakota bank executive got drunk and pulled out a gun to kill himself. The police came and took him to a hospital.
He was admitted for four days of psychiatric care and then sent home. His doctor signed certification saying the man could resume all work duties in a week.
Bank officials weren’t so sure. Citing “the impact of your action in the community,” HR placed him on leave and, shortly afterward, fired him.
The executive filed an ADA lawsuit, arguing that his doctor certified his fitness for work and yet the bank “perceived him as disabled.” He said his mental illness should have been accommodated.
The bank argued that the employee was a safety threat and his actions harmed its reputation.
How would you have ruled?
The verdict: The judge OK’d a jury trial, saying, “If an individual can show that an adverse employment decision was made by the employer because of a perception of a mental impairment—whether based on myth, fear or stereotype—the ‘regarded as’ prong of being defined as disabled under the ADA is generally satisfied.”
Instead of going to trial, the bank settled for an undisclosed sum.
The lesson: Don’t base your actions on your opinion about an employee’s medical condition. Physicians are trained medical experts and you must respect their certifications.
Wellness Programs and the EEOC, Part One
The National Law Review
On May 29, 2013, the U.S. Department of Labor, the U.S. Department of the Treasury, and the U.S. Department for Health and Human Services finalized rules regarding wellness programs offered in conjunction with group health plans. These changes were made in light of the Affordable Care Act (“ACA”). Prior to the enactment of the ACA, HIPAA provisions generally prohibited group health plans and group health insurance issuers from discriminating against individual participants and beneficiaries in eligibility, benefits, or premiums based on a health factor. The exception to the general rule allows premium discounts, rebates, or modifications to otherwise applicable cost-sharing systems (including copayments, deductibles, or coinsurance) in return for adherence to certain programs promoting health or preventing disease.
Five Ways the EEOC Proposed Wellness Regulations Would Change Workplace Health Initiatives
JD Supra (press release)
The Americans with Disabilities Act (ADA) generally prohibits employers from requiring current employees to submit to medical examinations or medical inquiries unless the exam or inquiry is “job-related and consistent with business necessity.” Guidance issued by the Equal Employment Opportunity Commission (EEOC) in 2000 makes an exception to this rule for wellness programs that request employee medical information (e.g. biometric testing, health risk assessments, etc.) as a condition of participating in the program. However, this exception only applies if participation in the wellness program is “voluntary” – meaning that participation may not be required and non-participants may not be penalized.
Over the past fifteen years, employers and their benefits consultants have developed a myriad of strategies for encouraging employee participation in wellness programs, many of which involve “discounts” on employee contributions for health coverage for wellness participants. More aggressive employers have gone so far as to condition enrollment in their group health plan on an employee’s participation in a wellness program. Allegations of such requirements were the basis for EEOC lawsuits filed in late 2014 against Honeywell International Inc. and several other employers. It is in this context that the EEOC published their proposed regulations on April 20, 2015 to further define the “do’s and don’ts” for wellness programs under the ADA. The proposed regulations, if finalized in their current form, would change the wellness landscape in five significant ways.
Dismissiveness of Mental Illness in the Workplace and Protections for Employees
The Lund Report
Many mental conditions impact an employee’s performance but may not be visible to the employer.
Caltrans Liable for Failure to Properly Address Employee's Request for Accommodation
JD Supra
Kamali v. California Department of Transportation, No. B247756 (March 17, 2015): In an unpublished opinion, the California Court of Appeal recently upheld a jury’s verdict finding the California Department of Transportation (Caltrans) liable for failure to provide a reasonable accommodation and failure to engage in the interactive process.
Failure to Accommodate May Not Equal Retaliation, Says Federal Court
Workforce Management (blog)
When an employee complains about a health problem at work, do your diligence. Determine if the employee is requesting an accommodation.
Lawsuit claims Md. departments violated ADA
Maryland Daily Record
A Maryland correctional officer is suing the state Department of Public Safety and Correctional Services, alleging the department violated the Americans with Disabilities Act by denying him reasonable accommodations for his temporary vision impairment. After forcing Daniel Price to take five months of unpaid leave, the state Department of Budget and Management — which is also named as a defendant in the lawsuit — billed Price for the entire cost of his health insurance plan and did not inform him of his right to continued coverage under the Public Health Services Act, the complaint states.