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Qualification is Key under the ADA

Since the Americans with Disabilities Act (ADA) was amended a few years ago to expand on what is considered a “disability,” almost any medical condition of any consequence may now be enough for an employee to be considered “disabled.”  While many past ADA claims were defended by arguing that the employee was not truly disabled, that defense is practically gone now (unless the employee really has no cognizable medical condition).

The key question today in many ADA cases is whether the employee is a “qualified individual with a disability.”  A “qualified individual” is someone with an actual disability who, with or without reasonable accommodation, can perform the essential functions of the job.  It is an employee who can carry out the fundamental duties of the position that the person is actually required to perform.  Those essential functions may be about doing the job correctly, safely, as required by rules, policy or law, and within an employer’s expectations.  If the employee can do those tasks — either without assistance or through an employer providing a reasonable accommodation — then the employee cannot be discharged or prevented from doing the job due to his or her disability.


Many times cases turn on whether a job duty is essential.  Courts consider whether a job function is “essential” on a case-by-case basis, considering factors such as any job description, the employee’s actual experience (and that of similarly situated co-workers) in the position, and the practical realities of the job based on testimony by employees and supervisors.  Thankfully, courts have recognized that the employer’s judgment and discretion is key; what the employer defines as important and essential matters a whole lot in making that determination.  However, the employer’s judgment does not go unchecked.  Courts will consider the real experience of the employee (and others) in the job, so just because an employer says a job duty is essential does not make it so.  If the employee never had to carry out that duty, or it is not really what the employee was hired to do, whether that duty is essential may end up being a question for a jury to decide. [Read more →]

June 23, 2016   No Comments

Don’t Let An Employee Wellness Program Make You Sick

Last month the EEOC issued its Final Rule on Employer Wellness Programs and Title I of the Americans with Disabilities Act (ADA). Title I of the ADA prohibits employers from obtaining medical information from employees unless those inquiries are part of a voluntary employee health program. Under the ADA an employee wellness program must also offer reasonable accommodations to individuals with disabilities so they have equal access to program fringe benefits.

Heathcare Screening Image

The EEOC’s Final Rule is intended to clarify and provide consistency with HIPAA and the Affordable Care Act (“ACA”) while also ensuring that employer wellness programs remain voluntary.  Employer wellness programs subject to the Final Rule include both participatory and health-contingent wellness plans which ask employees to answer disability-related inquiries by completing, for example, a health risk assessment (HRA) or undergo biometric screenings.  Examples of such wellness programs may include tobacco cessation and weight-loss programs, onsite exercise facilities, and nutrition classes.

The Final Rule, which takes effect on January 1, 2017, focuses on three requirements:

  1. Ensuring the wellness program is reasonably designed to promote health or prevent disease.  To meet this requirement a wellness program may not require an overly burdensome time commitment, involve unreasonably intrusive procedures, be a subterfuge for violating the ADA or other employment discrimination, and it may not shift significant costs to employees.  So, under the Final Rule an employee wellness program is not reasonably designed to promote health or prevent disease if it asks employees to provide medical information but does not provide any feedback based on this information or does not use the information to design or assist with specific health conditions.
  2. Confirming that the wellness program is voluntary.  A wellness program may not require employee participation, may not deny employees who refuse to participate access to health coverage or restrict which health plan an employee may choose, and an employer may not take any adverse action, or coerce, intimidate or threaten any employee who does not participate.  Employers must provide notice to employees that states what medical information will be obtained, how it will be used, who will receive it, and the restrictions on disclosure.
  3. Prescribing limitations on the financial incentives a wellness program may offer.  To ensure employer wellness programs are not financially coercive — essentially rendering participation involuntary — financial incentives are limited to a maximum of 30% of the total cost of self-only coverage.

The Final Rule differs slightly from HIPAA and the ACA which allow a 50% financial incentive for tobacco cessation programs. Tobacco cessation programs which merely inquire whether employees are tobacco users would not fall within the ADA Final Rule because the program does not involve disability related inquiries, so a 50% incentive may be utilized.  If, however, the tobacco cessation program requires biometric screenings or other medical or health information, then it would likely be subject to the ADA and the 30% incentive limitation in the Final Rule.

The EEOC also at the same time issued a Final Rule regarding employee wellness programs and GINA which protects employees from discrimination based on genetic information. Under that GINA Final Rule, employee wellness programs cannot condition financial incentives on the provision of genetic information, but may offer incentives for completing an HRA that makes genetic inquiries.   However, the incentive must still be offered even if the employee does not provide genetic information on the HRA.   The employee wellness program may also offer an incentive to an employee whose spouse provides genetic information.  Like the ADA Final Rule, any financial incentive is limited to 30% of the total cost of self-only coverage.

Those critical of the EEOC’s Final Rule believe that it still allows employers to provide financially coercive incentives in exchange for receiving medical information which can be used in a discriminatory fashion. The AARP, in particular, contends the Final Rule does not do enough to protect older employees who are more likely to have health problems such as diabetes and heart conditions. Consequently, even with the guidance of this Final Rule, employers should exercise extreme caution when evaluating medical information received from a wellness program to avoid becoming subject to an ADA (or an ADEA lawsuit).  Employee wellness programs are designed to benefit employers and their employees.  But if implemented or managed improperly, they are likely to cause an unpleasant and painful outbreak — of litigation.

June 13, 2016   No Comments

Conducting an Internal Audit of Your Company’s I-9 Forms

If you work in Human Resources, you are surely familiar with the Employment Eligibility Verification Form I-9 (“Form I-9”), and depending on the size of your company’s workforce, you might complete new I-9s on a regular basis.  But have you ever gone back to do an internal audit of the already completed Forms I-9?  Do you know the most common mistakes found on I-9s? [Read more →]

June 6, 2016   No Comments

New OSHA Accident Reporting Rules Rule Out Mandatory Post-Accident Drug Screening

Many employers have policies and procedures that mandate drug and alcohol testing in the wake of a workplace accident, regardless of whether there is any suspicion that the employee involved was impaired. However, effective August 10, 2016, OSHA’s final rules on electronic reporting of workplace injuries require employers to implement “a reasonable procedure” for employees to report workplace injuries and that procedure cannot deter or discourage employees from reporting a workplace injury.  Though the text of the final rule (29 CFR § 1904.35(b)(1)(i)) does not specifically address mandatory post-accident drug and alcohol testing, OSHA’s May 12, 2016 commentary accompanying the final rules specifies that the agency views mandatory post-accident testing as deterring the reporting of workplace safety incidents and employers who continue to operate under such policies will face penalties and enforcement scrutiny. [Read more →]

May 31, 2016   No Comments

OSHA Changes: Are You Keeping Up?

Employers want all employees to do their work and go home safely each day.  A workplace injury is bad news for everyone.  When OSHA or a similar state safety agency gets involved, it becomes an even bigger problem for employers.  That reality is even more true today as OSHA’s maximum fines have recently increased, and it has added new recordkeeping and reporting requirements that raise further concerns for employers.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s stated role is “to ensure [safe working] conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance.” [Read more →]

May 26, 2016   No Comments

Changes to the FLSA’s White Collar Exemptions Are Finally Here! Higher Salaries and More Overtime, Here We Come.

The U.S. Department of Labor (DOL) announced the final version of their long-awaited overtime exemption rule today, which makes notable changes to the requirements for employees to qualify under the Fair Labor Standards Act’s (FLSA) “white collar” exemption. The most noteworthy change is an increase in the required salary level for exempt employees to $47,476 per year, but there are other important changes as well.

The rule first surfaced nearly a year ago in June 2015 and it has been a concern of all employers since then. The stated goal of the rule is to expand federal overtime regulations so that more than 4 million more workers will likely be entitled to overtime. [Read more →]

May 18, 2016   No Comments

Keeping Internal Investigations Confidential: That’s Not Legal?

While speaking at a conference this year, I asked members of the Human Resources community to raise their hands if they routinely instructed employees not to discuss internal investigations.  No surprise, most of the hands (maybe all of them) went up.


For many good reasons, most employers instruct employees to keep the fact of and contents of investigations confidential.  For example, when investigations become public, employees often become less willing to come forward and discuss the nature of the investigation.  Also, in most instances the nature of the investigation involves sensitive information, like a harassment complaint.  Yet, the National Labor Relations Board (NLRB) has indicated that reasons such as these are not legally sufficient to tell employees to keep their mouths shut.

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May 9, 2016   No Comments

Supreme Court Revisits “Trial by Formula” Approach in FLSA Collective Action


In 2011, the U. S. Supreme Court issued a landmark decision regarding certification of employment discrimination class actions. The opinion, Wal-Mart v. Dukes, rejected the “trial by formula” approach of allowing a random sample of the class members’ claims to be tried, with the results of those trials to be applied to the entire class. Among other problems, the Court found that this shortcut approach deprived defendants of the ability to litigate statutory defenses to individualized claims. Dukes, however, did not reach the narrower issue of whether “representative,” “sample” or “anecdotal” evidence” is ever appropriate in a class-action employment case. [Read more →]

May 2, 2016   No Comments

Does Title VII Protect Against Sexual Orientation Discrimination? The Answer May Be Changing

Recent laws in North Carolina and Mississippi and the subsequent backlash are all over the news.  The U.S. Supreme Court’s decision in Ogberfell v. Hodges making gay marriage legal across the country is not even a year old.  The Fourth Circuit Court of Appeals very recently rule in favor of the right of transgender high school students to use bathrooms for the gender with which they associate.  LGBTQ rights are at the forefront like never before.  Employment discrimination is no exception.  The Equal Employment Opportunity Commission (“EEOC”) has recently filed two separate suits in Pennsylvania and Maryland district courts challenging the long-held belief that Title VII does not protect against discrimination based on sexual orientation.


For many years courts held that because sexual orientation was not explicitly mentioned in the text of Title VII, the statute afforded no protection to employees based on their physical and emotional attraction.  Cases in numerous federal courts of appeal held that Congress had to explicitly protect this class of employees to allow for claims of sexual-orientation discrimination. [Read more →]

April 25, 2016   No Comments

What is an Overnight Stay for Inpatient Care Under the FMLA?

Employers with more than 50 employees are usually aware that the Family Medical Leave Act (FMLA) may apply to their business and their workers. That law, which provides for protected leave for employees in certain situations and various amounts (most often up to 12 weeks of leave), can sound simple but is very complex in its details.

For example, take the issue of what is an “overnight stay” by an employee at a hospital or similar facility.  The definition of “overnight stay” matters, because an overnight stay is the type of event that constitutes inpatient care and can trigger an employee’s right to FMLA leave, possibly protecting the employee from discipline or termination due to that absence from work.

Hospital BedIn the case decided by a federal appellate court, the employee began experiencing chest pain, dizziness and shortness of breath at work late in the afternoon of November 14.  He claims he got permission from his managers to leave work early, and late that evening he went to a hospital, being formally admitted for treatment after 12 a.m. on Nov. 15.  (Note that time for later.  It is important.)  He underwent tests and was released later in the evening on Nov. 15.

When he came back to work he was terminated for walking off the job on Nov. 14.  Apparently, there was a dispute about whether he really had the permission of his managers to leave work early that day (and clearly there was some doubt by his employer of whether his claim of being ill was real or not).  The employee ultimately filed suit, claiming his termination violated the FMLA because his absence from work was inpatient care at a hospital protected by the FMLA.  So his FMLA claim hinged on whether his care at the hospital counted as an “overnight stay.”

The appeals court ruled that it did not.  It decided that to be an “overnight stay” the care at the hospital must span over two calendar days.  This employee’s treatment at the hospital, while significant, all occurred on Nov. 15.  The court also suggested (without ruling) that a minimum stay of at least 8 hours over those two calendar days was also likely necessary for it to be an overnight stay, but it did not need to reach that conclusion in this case, since this employee’s time at the hospital was all within one calendar day.

So now we know (at least according to one federal appellate court) what an overnight stay really is under the FMLA — a hospitalization that starts at or before 11:59 p.m. on one day and lasts well into the next day.  Good to know.  Did you ever think such a small detail as when an employee checked into a hospital would determine the outcome of an employment lawsuit?  It just goes to show that in employment law, and especially with the FMLA, small details can have a very big impact.


April 19, 2016   No Comments