How the ADA drove the EEOC's final rule on wellness programs
HR Dive
The Equal Employment Opportunity Commission acted like a referee in setting guidance for employer wellness programs. The agency reviewed each of its anti-discrimination laws to come up with its final rule. But all “roads” led back to the Americans with Disabilities Act, which protects disabled workers from discrimination.
The EEOC defines “wellness programs” as company-sponsored activities that promote health and disease prevention. Wellness programs can be part of a group health plan or offered separately as an employee benefit. Programs might offer education on nutrition or weight control, coaching with health goals or onsite exercising areas.
'Tis The Season For ADA And FMLA Accommodations: Part 1
Law360
Understanding when an employee has provided notice is the first challenging issue most employers confront when dealing with accommodations. Employees need only provide information “sufficient” to put the employer on notice that a leave or other accommodation for a disability may be needed. Employees do not always communicate their needs clearly or effectively and there is no bright-line rule to determine what is sufficient in any particular circumstance.
As such, it behooves employers to listen carefully to what is said since a failure to recognize or appreciate that a “request” has been made can be very costly. Once an employer is on notice, additional obligations are imposed. These obligations vary depending upon which statute is at issue but both the FMLA and ADA require communication and the exchange of information to determine the contours of the rights accorded to employees. Part 2 of this series will address the topic of communication and how to ensure FMLA compliance as well as an ADA mandated, legally compliant interactive process.
'Tis The Season For ADA And FMLA Accommodations: Part 2
Law360
Although the FMLA and ADA impose different rights and responsibilities on employers and employees, effective communication is critical under both statutes. Once an employer is on notice that medical issues restrict an employee’s ability to perform his/her job, the employer must act. Just what must be done and when, however, is different. The FMLA’s implementing regulations detail the breadth of required communication, from notices, to medical certifications, to fitness for duty certifications and more. The ADA, however, requires an employer to engage in an interactive process, a term nowhere found in the statute. Despite the differences in detail and specificity, communication is absolutely essential to ensure compliance under both laws.
The final part of this series will address an employer’s obligation to provide leave and other accommodations for an employee’s medical conditions. This is probably the most challenging aspect of the entire accommodation process. An employer must understand not only how far to go in accommodating employee limitations, but also appreciate the differences in FMLA and ADA obligations.
EEOC slaps M&T Bank with disability discrimination lawsuit
Legal News Line
M&T Bank faces a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) on behalf of the company’s former employee.
The EEOC alleged in its complaint, which was submitted to the Northern Division of the U.S. District Court for the District of Maryland, that M&T failed to uphold the rights of its employee, Candace McCollin, under the Americans with Disabilities Act (ADA).
Instead of providing her with the opportunity to go back to work following her short-term disability leave, the bank allegedly moved to relieve her of her position as branch manager. The situation prompted the EEOC to take action.
"The ADA requires employers to provide a reasonable accommodation such as unpaid leave or transfer to a vacant position. EEOC will take robust action if an employer blatantly refuses to meet its legal obligations,” EEOC Regional Attorney Debra M. Lawrence said in a press release.
“Weight Watchers”—Weight Discrimination in the Workplace
Lexology
A 2008 study from Yale University found that weight discrimination, often referred to as “size discrimination,” occurs in employment settings and daily interpersonal relationships as often as race discrimination: it is one of the top charges filed with EEOC, and is reported by women about twice as often as men. Even more surprising, according to a study by the Obesity Action Coalition, weight discrimination increased by 66 percent between 1995 and 2005, and it now appears to affect 7-12 percent of the general population. In the continuously changing legal landscape, discrimination against the differently sized is weighing in—what does that mean for California employers?
Appeals court overturns dismissal of DNA-privacy lawsuit
Palo Alto Online
The U.S. Ninth Circuit Court of Appeals overturned this week the dismissal of a family's lawsuit against the Palo Alto school district that alleges the district violated the Americans with Disabilities Act (ADA) when a teacher allegedly divulged that their son carries a genetic marker for cystic fibrosis.
Drexel Law Student's ADA Claims Against Firms Dismissed
The Legal Intelligencer
A federal judge has tossed three complaints filed against Pepper Hamilton, Blank Rome and Dechert filed by a law student who claimed the firms' decision not to hire him for a summer position violated the Americans with Disabilities Act.
Financial Services Industry Targeted in Wave of Lawsuit Threats Over Websites Allegedly Inaccessible to the Visually Impaired
Lexology
In a trend that began several years ago and has migrated through several industries, investment firms are among those being targeted by enterprising plaintiffs’ lawyers alleging that the firms’ website are inaccessible to blind or otherwise disabled users. The claim is that the firms are violating the Americans with Disabilities Act (ADA).
The EEOC Settles its “Direct Threat” Lawsuit Against Georgia Power Co. for $1.6 Million
The National Law Review
According to the Consent Decree filed on November 15, 2016, Georgia Power Company (“Georgia Power”) has agreed to pay $1.6 million and to revise its seizure and drug and alcohol policies in order to settle the lawsuit brought by the EEOC which claimed that the utility company violated the Americans with Disabilities Act (“ADA”) when it fired, or refused to hire, employees with actual or perceived disabilities on the basis that it believed the individuals posed safety threats. However, according to the EEOC, these actions were taken without actually assessing the individual’s ability to perform the required tasks.
In 2013, the EEOC brought suit on behalf of 24 alleged discrimination victims (EEOC v. Georgia Power Company, Civil Action No. 1:13-cv-03225-AT) in the District Court for the Northern District of Georgia, Atlanta Division. According to the EEOC, Georgia Power either refused to hire disabled individuals or barred some employees from returning to work after medical leave because it believed that they couldn’t safely do their jobs. The EEOC claims that Georgia Power ignored the opinions of treating physicians that the individuals were able to perform their job functions, and instead automatically disqualified them without any individualized assessment.
Under the ADA, an employer can deny jobs to individuals with disabilities if it believes the workers pose a “direct threat,” which the ADA defines as “a significant risk” to the health or safety of others that can be eliminated by reasonable accommodation. The employer has the burden of proving that such a threat exists.
According to the EEOC, each of the individual plaintiffs were qualified individuals who were able to perform the job functions with or without reasonable accommodations. For example, plaintiff Harper was able to perform the essential functions of a paid intern, but Georgia Power rescinded the offer of employment after it learned that she was taking medication for a traumatic brain injury. Furthermore, in the case of plaintiffs Simmons, Allen, and Butler, each individual was cleared by a physician to return to work, but instead, their employment was terminated by Georgia Power. The EEOC asserted that each of these individuals were discriminated against because of their disability and that Georgia Power failed to provide any evidence that the individuals posed a “direct threat” to the safety of others.
Georgia Power denies that it violated the ADA, but has entered into the settlement to avoid additional litigation costs.
The take away from this settlement is to ensure that you, as employers, have conducted an individualized assessment for each individual prior to disqualifying them from being able to perform specific job functions.
Judge blasts serial ADA lawsuit filer
Hanford Sentinel
A local hotel has settled a lawsuit filed by an Arizona woman who alleged its spa was not handicapped accessible, despite the fact that the woman never visited the hotel.
Theresa Brooke, a resident of Pinal County, Arizona, filed the lawsuit with the U.S. Eastern District Court of California on Oct. 10. Brooke allegedly called the Comfort Inn Hanford to book a room for “personal and business affairs in the Central Valley.” She reportedly filed the lawsuit after learning the hotel’s spa does not have a handicapped lift.
According to court filings, Hanford Investors Inc., which owns the Comfort Inn Hanford, settled the lawsuit on Nov. 2. Comfort Inn Hanford owner Thebaji Odedra declined to comment on the details of the settlement.
Feds rap Medford over ADA rules
Mail Tribune
Jerry Smith braced himself for a mishap as he maneuvered his wheelchair around uneven and missing sidewalks in Medford.
On Wednesday, the 71-year-old's wheel jammed briefly as he tried to power over a gravel section onto the concrete lip of a sidewalk at the corner of Stewart and Riverside avenues.
Five years ago, he complained to the city that it was out of compliance with the Americans with Disabilities Act. Smith said a lack of sidewalks in some areas, uneven sidewalks, insufficient wheelchair ramps at intersections and other problems make it difficult for the disabled to make their way around.