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Disability, Leave & Health Management Blog

Offering Practical Guidance to Employers

Employee Ineligible for FMLA Leave May be Eligible for FMLA Leave

When might an employee who works for an employer with less than 50 employees within 75 miles be eligible for FMLA leave? When the employer is prohibited from denying the employee’s eligibility, according to a recent decision by the United States Court of Appeals for the Sixth Circuit. Tilley v. Kalamazoo Country Road Commission et al (6th Cir. January 26, 2015).

After being terminated, the plaintiff brought a host of legal claims against his former employer, including interference and retaliation claims under the FMLA. Because the employee had less than 50 employees within 75 miles, the employee was not eligible for FMLA leave and the court granted summary judgment to the employer on the FMLA claims.

However, the employer’s handbook stated that “[e]mployees covered under the [FMLA] are full-time employees who have worked for the Road Commission and accumulated 1,250 work hours in the previous 12 months.” No mention of the FMLA eligibility requirement that the employee work at a location which has 50 employees within 75 miles. The plaintiff argued the employer was “equitably estopped” from denying his eligibility for FMLA leave based on this omission.

The court denied the employer’s motion for summary judgment on the equitable estoppel claim. The company’s “unqualified statement” that individuals such as the plaintiff were eligible for the FMLA satisfies the equitable estoppel requirement that there be a misrepresentation, said the court. The plaintiff’s affidavit that he reasonably relied on that handbook statement was sufficient to create an issue of material fact, the court concluded.

Some beneficent employers extend FMLA-equivalent leave to employees who are not otherwise eligible for it. It is one thing to do so intentionally, quite another to do so inadvertently through the omission of an eligibility requirement in the FMLA policy in the employee handbook.

President Proposes Federal Patches to Paid Leave Patchwork

President Obama has unveiled a handful of proposals that would give more employees more ability to be paid when absent from work for a variety of reasons.

The President called on Congress to pass the Healthy Families Act, which would allow employees to earn up to seven days per year of paid sick time.  Employees would be able to use the days for their own or a family member’s illness, preventive care or for reasons related to domestic violence. A federal paid sick leave (PSL) law would add to the patchwork of PSL laws we already have as a result of four states and 16 other jurisdictions having enacted such laws.  The President encouraged more states and cities to pass PSL laws although, if the Healthy Families Act is passed, the benefit of their doing so is not at all clear.

The President also proposed ways to transform unpaid leave under the Family and Medical Leave Act into paid leave.  These approaches include enacting legislation to provide federal funding to states to offer paid FMLA programs and to pay federal employees for six weeks of family or parental leave.  The President also will sign a Presidential Memorandum “directing agencies to allow for the advance of six weeks of paid sick leave for parents of a new child, employees caring for ill family members, and other sick leave-eligible uses.”

As those who spend their time in the leave management arena know, complying with the various federal, state and local leave laws that require leave or may require leave as an accommodation has become a huge compliance challenge. Some multi-state employers have created leave management departments just to administer these laws.  As we have said repeatedly, the patchwork challenge has nothing to do with the social question of whether employees should or should not be paid when sick. The challenge is the proliferation of leave and attendance laws, how they interact with each other, and the compliance issues they present. With these new proposals coming just two weeks into the new year, it’s a safe bet that the patchwork will grow in 2015.


The DOJ Announces Another Settlement Under Its Barrier-Free Health Care Initiative

Thanks to our colleague Joseph J. Lynett for this post:

The U.S. Department of Justice Department announced a settlement with Franciscan St. James Health (St. James), requiring that patients and companions who are deaf or hard of hearing receive sign language interpreters and other services necessary to ensure effective communication, in compliance with Title III of the Americans with Disabilities Act (ADA). Under the agreement, St. James will pay $70,000 in damages to a patient who is deaf who was allegedly denied a sign language interpreter throughout her four day stay in the hospital. The settlement also requires that St. James provide auxiliary aids and services, including sign language interpreters, to people who are deaf or hard of hearing within prescribed time frames and free of charge; designate an ADA Administrator; use their grievance resolution systems to investigate disputes regarding effective communication with deaf and hard of hearing patients; post notices of their effective communication policy; and train hospital personnel on the effective communication requirements of the ADA. The settlement is part of the Department’s Barrier-Free Health Care Initiative, a partnership of the Civil Rights Division and U. S. Attorney’s offices across the nation to enforce the requirement under Title III of the ADA requirement that people with disabilities, including those who are deaf or hard of hearing, who have HIV, or who have mobility disabilities, have equal access to medical services.


Dep’t of Education Negotiates Groundbreaking Agreement to Resolve Website Accessibility Investigation at State University.


Thanks to our colleagues Katrin U. Schatz and Joseph Lynett for this post.

In March, we reported on a landmark consent decree that settled the first lawsuit filed by the U.S. Department of Justice alleging that a corporate website failed to meet standards for accessibility established by Title III the Americans with Disabilities Act (ADA). Now, the U.S. Department of Education’s Office of Civil Rights (OCR) has announced an agreement to resolve an exhaustive, 19-month investigation of website accessibility compliance in a public education setting under Title II of the ADA and Section 504 of the federal Rehabilitation Act.

Title II of the ADA applies to state and local governments; the Rehabilitation Act covers recipients of federal financial assistance. The regulations implementing both prohibit covered entities from discriminating against qualified disabled persons, including students, employees and other members of the public, in providing any aid, benefit or service. Title II regulations also require a public entity to take appropriate steps to ensure that communications with disabled applicants, participants and members of the public are as effective as communications with others.

Under the resolution reached between OCR and Youngstown State University in Ohio, the university agreed to:

  • prepare and publish on its web pages an appropriate notice of nondiscrimination;
  • create policies to ensure the university’s website, online learning and course management environments are accessible to actual and prospective students, employees, guests and visitors with disabilities;
  • develop an implementation and remediation plan that includes regular audits, annual training, and procedures for ensuring accessibility of electronic and information technologies provided by third parties;
  • provide expert certification that the university’s electronic and information technologies meet the school’s standards;
  • ensure the accessibility of the university’s computer labs; and
  • provide regular reports to OCR describing its efforts and progress.

Federal civil rights agencies continue to level their sights on website accessibility issues involving both private companies and public entities, even as specific standards have yet to be fully developed. As these recent settlements illustrate, responding to an investigation or lawsuit can be an intrusive and costly experience. These developments should alert not only educational institutions but also any business offering goods and services to the public that website accessibility is a focus of federal civil rights agencies, and that implementing appropriate audits and preventive steps now is an appropriate risk management strategy.

Medical Testimony Needed in ADA Case to Establish Impairment and Limitations it Caused

A plaintiff’s declarations that her medical impairment led to her limitations were insufficient to defeat her employer’s summary judgment motion because she failed to provide “proper evidence that any limitation she many have is caused by” her medical impairment, the U.S. Court of Appeals for the Tenth Circuit ruled (emphasis in original). Felkins v. City of Lakewood (10th Cir, December 19, 2014). Expert testimony to establish causation was required, the court said.

In her opposition to her employer’s motion, the plaintiff stated that she had avascular necrosis, which, she said, substantially impaired her major bodily functions of normal cell growth and normal blood circulation and also substantially affected her ability to lift, walk, and stand. “Clearly, her avascular necrosis was an ADA disability,” she argued.

In affirming summary judgment for the employer, the court held that expert testimony was needed to establish that the plaintiff had the medical condition she alleged and that it substantially limited at least one of the major life activities she had identified. Her own declaration–lay evidence–was inadmissible in court and insufficient to defeat her employer’s motion for summary judgment, the court said.

The court also rejected the plaintiff’s argument that the ADA Amendments Act relieved her of producing expert evidence because of Congress’ intent that “…the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”  The court held that this statement did not relieve her of producing evidence that any limitation she had was caused by her medical impairment.

This case is a reminder to employers defending ADA cases that despite the broadening of the definition of “disability” by the ADAAA, that amendment did not give a plaintiff a free pass on meeting the evidentiary burden to establish both the impairment and that the limitation(s) are caused by it.

Reinstatement of Police Officer Who Lied About Medical History Upheld

The Connecticut Supreme Court has upheld an arbitrator’s award reinstating a police officer who lied to a neurologist about his medical history during an independent medical examination.  Town of Stratford v. AFSCME, Council 15, Local 407 (CT Sup.Ct., official release date of December 23, 2014).

The police officer had a seizure while operating a police car and stuck two parked cars. During an IME soon after the accident, the police officer failed to tell a neurologist about two prior seizures and his use or abuse of alcohol.

The Town terminated the officer’s employment because he had “violated department policy by lying during the independent medical examination.”  The union challenged the termination and the arbitrator reinstated the officer without any back pay for the nine months between the termination and the arbitrator’s award.  The Town sought to vacate the award, arguing that the award violated the public policy against lying by law enforcement personnel.  The trial court rejected the Town’s argument but the Appellate Court reversed and vacated the award.

The Connecticut Supreme Court reinstated the award, holding that while there is a public policy against intentional dishonesty by police officers, the award itself did not violate public policy.  The police officer’s dishonesty was not so “egregious that it requires nothing less than the termination of his employment so as not to violate public policy,” the court concluded.

Voters Approve Paid Sick Leave Laws in Three Cities and Massachusetts

“Elections have consequences” goes the maxim and one of the consequences of the November 4 election is that employers in four additional jurisdictions have paid sick leave laws (PSL) to consider.  The margin of approval suggests that PSL laws are widely supported by the electorate.

Massachusetts becomes the third state to enact a PSL, following Connecticut and California.  60% of Massachusetts voters approved the law.  For additional information on the Massachusetts law, click here.

Voters in Trenton, NJ and Montclair, NJ also approved PSL laws by wide margins, 85% in Trenton and 75% in Montclair.  With these two additions, eight municipalities in New Jersey have enacted a PSL law.

81% of Oakland, CA voters also approved a PSL law, making it the fourth California city to adopt such an ordinance. San Francisco, Long Beach and San Diego are the other three cities in California with a PSL law. (While the San Diego ordinance had been passed by the legislature, because enough signatures to repeal it had been filed, voters will decide in June 2016 whether it will be enacted.)  The Oakland PSL ordinance was joined with a proposed increase in the minimum wage, which likely added to its popular appeal.

In March 2013, we posted about a developing “mega leave-and-attendance patchwork” of paid sick leave laws. At the time, five jurisdictions had PSL laws. Now, a bit more than a year and a half later, 19 jurisdictions have PSL laws.  Twelve were enacted in 2014 alone. Be assured that more jurisdictions will pass PSL laws.

As we have said, the PSL patchwork challenge has nothing to do with the social question of whether there should or should not be paid sick days. The challenge is the proliferation of leave and attendance laws and the lack of guidance about how these PSL law interact with them. For example, how do these PSL laws interact with state and federal family and medical leave laws, disability discrimination laws, and the myriad of other laws that grant leave for various reasons, some of which are also listed in the PSL laws. The ordinances are silent on that issue.

Court Denies EEOC Request for TRO in Wellness Lawsuit

As we posted last week, the EEOC not only sued Honeywell, alleging that its wellness program violated both the ADA and GINA, but sought a temporary restraining order (TRO) barring Honeywell from implementing the surcharges and other financial “penalties” in its wellness plan. The EEOC had alleged that the penalties in the plan were so large that it transformed the voluntary plan into an involuntary plan, which violates the ADA and GINA.

Today, after an oral argument on the EEOC’s motion for a TRO, Judge Ann D. Montgomery of the U.S. District Court for the District of Minnesota denied the EEOC’s TRO request.  In a crowded courtroom, the judge ruled from the bench that the EEOC had not established both that there would be irreparable harm if Honeywell were not enjoined from implementing its program and that it was entitled to the TRO after a balancing of the harms to the parties. Judge Montgomery did not address the EEOC’s likelihood of success in the litigation.

We have noted in previous posts that waiting for the EEOC to give some idea on what it believes to be acceptable incentives in a wellness plan is like waiting for Becket’s Godot. Today, Judge Montgomery asked the EEOC the question the corporate wellness world has been waiting for much more than a decade to ask: “At what point does a monetary penalty result in a compulsion?”  The EEOC responded that the agency cannot draw a clear line but that Honeywell had crossed it. At least three times during the oral argument, the Court pressed the EEOC to define the point at which voluntary wellness plan becomes involuntary because of the penalties involved. Each time, the EEOC responded that it cannot draw a line but that Honeywell had crossed it.

Of all days that one might anticipate the EEOC to give some idea of what would be acceptable parameters for wellness plan incentives, today was that day–a day in court on the EEOC’s request for a TRO, an extraordinary remedy, in an action brought with extraordinary speed. Alas, like Godot, the guidance did not come.  In contrast, Honeywell pointed to the clear guidance on acceptable incentives for wellness plans and acceptable employee contributions  in the Affordable Care Act.  Honeywell also argued that whether its wellness program was voluntary was irrelevant since it was protected by the ADA “safe harbor” for insurance plans.

EEOC Files Third Lawsuit Challenging Employer Wellness Plan

After staying on the litigation sidelines for years while the popularity of workplace wellness programs skyrocketed, the EEOC has brought its third lawsuit in about two months, alleging that the employer’s wellness program was not “voluntary” due to the “large” and “substantial” penalties to those who chose not to participate. Because the program was involuntary, the disability related inquiries and medical examinations within the program violated the ADA, according to the EEOC. EEOC v. Honeywell International, Inc. (D.MN, filed October 27, 2014.).

The lawsuit also alleges that Honeywell’s wellness program violates GINA’s proscription against providing inducements to an employee to obtain that employee’s family medical history. According to the EEOC, by penalizing an employee if the employee’s spouse does not participate in the program’s biometric screening, which could yield information related to conditions such as hypertension and diabetes, Honeywell’s program is providing a financial inducement to obtain genetic information. i.e., family medical history.

The EEOC is seeking a temporary restraining order enjoining Honeywell from imposing any penalty or cost on an employee who declines to participate in biometric testing or whose spouse declines to participate in such testing, and from providing any inducement to an employee’s spouse to participate in the testing.  The hearing on the temporary restraining order is next week.

We have posted previously about the EEOC’s two earlier lawsuits.  In those two lawsuits, according to the EEOC’s allegations, the penalty for not participating in the employer’s wellness program was that the employee needed to pay 100% of the health insurance premium, a penalty which the EEOC described as “steep,” “enormous,” and created “dire consequences.”

In the Honeywell case, according to the EEOC’s filing, employees who did not participate in the program would pay up to $3.500 in “direct surcharges” as well as lose “up to $1,500 in contributions” to the employee’s health savings account.

Honeywell’s press release concerning the lawsuit refers to the EEOC’s lawsuit as “frivolous” and states that its “wellness plan incentives are in strict compliance with both HIPAA and the ACA’s guidelines.” The company added that it is “disappointed that the EEOC would take a position that is so contrary to a fundamental component of the President’s health care plan, legislation passed by Congress, and the desire of all Americans to lead healthier lives.”


“Dire Consequences” for Non-Participants Lead to Dire Consequences for Wellness Program under ADA, Claims EEOC Lawsuit

After staying on the litigation sidelines for years while the popularity of workplace wellness programs skyrocketed, the EEOC has brought a second lawsuit just six weeks after its first, alleging that the employer’s wellness program was not “voluntary” due to the “dire consequences” to non- participants. Because the program was involuntary, the disability related inquiries and medical examinations within the program violated the ADA, according to the EEOC’s press release about the lawsuit. EEOC v. Flambeau, Inc. (W.D.WI, filed October 1, 2014).

Under the defendant’s wellness program, employees who participated in biometric testing and completed a “health risk assessment” paid 25% of the medical insurance premium while those who declined to participate in the program needed to pay 100% of the premium and faced unspecified discipline for not attending the testing, according to the press release.

In its first wellness lawsuit, the EEOC also alleged that non-participants were required to pay 100% of the insurance premium, a penalty the EEOC described as “steep” and “enormous.” EEOC v. Orion Energy Systems, E.D. WI, filed August 20, 2014). See our post about that case here.

Some 94% of employers with over 200 workers and 63 percent of employers with fewer employees have a wellness program, notes the EEOC’s press release. The EEOC regulations and Interpretive and Enforcement Guidance permit employers to conduct medical examinations as part of a voluntary wellness program. For many years, the EEOC’s position has been that “[a] wellness program is ‘voluntary’ as long as an employer neither requires participation nor penalizes employees who do not participate.”  Just last year, the EEOC reiterated that it “has not taken a position on whether and to what extent a reward amounts to a requirement to participate, or whether withholding of the award from non-participants constitutes a penalty, thus rendering the program involuntary.” By filing these two lawsuits, the EEOC has taken a very definitive position that any penalty it determines to be “steep,” or “enormous” or have “dire consequences” for non-participants would make an otherwise voluntary program involuntary. Earlier this year, the EEOC said that it plans to issue guidance this year concerning the amount of a reward/penalty allowed for a program to be “voluntary.”