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Disability, Leave & Health Management Blog

Offering Practical Guidance to Employers

Congress Enters ADA and GINA Wellness Incentives Fray


In our recent post, we noted the EEOC’s challenges to workplace wellness program incentives  under the ADA and GINA,  and the seemingly interminable wait for guidance from the EEOC on the acceptable size of incentives.  On March 3, 2015, Republican members of the Senate and House introduced the Preserving Employee Wellness Programs Act to harmonize the ACA wellness program provisionswith potentially conflicting provisions in the ADA and GINA.  Our Benefits Law Advisor blog post, here, provides additional information concerning this legislative effort.

Still Waiting for ADA and GINA Guidance on Wellness Incentives

March is here. The EEOC’s perspective on wellness program incentives is not. Yet again.

In its Fall 2014 regulatory agenda, the EEOC stated it would be issuing in February 2015 amended regulations concerning the size of incentives an employer may offer, yet still have a “voluntary” wellness program under the ADA and GINA.  The EEOC listed these same amendments on its Spring 2014 regulatory agenda. The regulatory agenda is a preliminary statement of priorities under consideration and is not a binding commitment to issue the regulations on the stated date.

The EEOC noted on its agenda that these amendments were needed to address whether an employer’s compliance with HIPAA rules concerning wellness program incentives, as amended by the Affordable Care Act (ACA), also complies with the ADA. The EEOC added that an amendment would also address the size of inducements allowed under GINA “to employees’ spouses or other family members who respond to questions about their current or past medical conditions on health risk assessments.”

The allowed size of wellness incentives matters to the growing number of employers with wellness programs. The ACA has a clear compliance standard for such incentives.  Until 2014, the EEOC had stayed on the sidelines of the wellness incentive debate, not offering any guidance beyond its general view that if the incentive was too large, the program was not “voluntary.”

In 2014, the EEOC sued three employers, claiming the size of their wellness incentives (or penalties, depending on your perspective) transformed otherwise voluntary wellness programs into involuntary programs. In the third case, the EEOC sought to enjoin the company from continuing the incentives in its wellness plan. There was no claim that the incentives violated the ACA standard. Our report on that case is here.

At the oral argument on the injunction hearing, the court asked the EEOC numerous times to define the line between a lawful and unlawful incentive under the ADA and GINA. The EEOC declined to define a specific line. The court denied the EEOC’s injunction request.

More than a year ago, we posted that waiting for the EEOCs guidance on incentives under wellness programs is like waiting for Beckett’s Godot, where Estragon and Vladimir lament daily that Godot did not come today, he might come tomorrow. The waiting continues.

Add Philadelphia to the Paid Sick Leave Mega-Trend

After a few failed attempts, Philadelphia has become part of the paid sick leave mega-trend. The Mayor signed the “Promoting Healthy Families and Workplaces” Ordinance on February 12.  It goes into effect 90 days after the signing.

With the proliferation of PSL laws and more on the way, and with most of them using the same basic structure for the leave benefit, it seemed appropriate to develop some PSL shorthand to describe and compare the PSL benefits efficiently.

A typical accrual formula has three variables:  an employee accrues 1 hour of PSL for each X hours worked, to a maximum of Y hours per year, with the right to carry over up to Z hours. Some laws give the employer the option to avoid carrying over time by front-loading the annual sick time allotment at the beginning of the calendar year.  Of course, all of these laws have provisions beyond the accrual formula but the PSL formula is their essence.

Describing the Philly ordinance with this shorthand, eligible employees working for a covered employer will have a 1/40/40/40F accrual formula, i.e., they will accrue one hour of paid sick time for every 40 hours worked in Philadelphia, to a maximum of 40 hours per calendar year, with the right to carryover up to 40 hours into the next calendar year unless the employer elects to “front-load (F)” 40 hours at the beginning of the year.  (The recently-enacted Tacoma Ordinance, which we posted about here, is a 1/40/24/40 law. The “F” is missing because the Ordinance does not offer employers a front-loading option)).

The Ordinance requires employers of at least 10 employees to provide paid sick leave; smaller employers must provide unpaid sick leave. Employees begin to accrue leave on the first day of employment and can use the accrued time beginning the 90th day of employment. Paid sick time can be used for the usual list of reasons: employee or family member’s illness, injury or health condition; domestic abuse, sexual assault and stalking. Employees not covered by the Ordinance include all employees covered by a bona fide labor contract and “pool” employees, defined as “any health care professional, other than an employee of a temporary placement agency, who works only when he or she indicates that he or she is available for work and who has no obligation to work when he or she does not indicate availability.”

Tacoma, WA Enacts Paid Sick Leave Law

Now comes Tacoma, Washington, joining the growing throng of cities and states that have passed paid sick leave laws. Recall our prediction two years ago that a mega patchwork of paid sick leave laws was on the way. It has arrived and continues to grow. There are more jurisdictions with paid sick leave laws that with family and medical leave laws.

The next states likely to enact paid sick leave laws are Rhode Island and Vermont, according to The Kiplinger Letter (subscription service) It also reports that a few states are also considering joining the eleven others that have enacted kibosh laws to preempt cities from enacting paid sick leave laws.

President Obama in his State of the Union Address last month exhorted Congress to pass a federal paid sick leave bill.  Thus far, neither the Senate nor the House has taken up such a bill.

The Tacoma Paid Leave Ordinance, which is effective February 1, 2016, follows the typical structure of these laws. Employees accrue paid sick time at the rate of one hour for every 40 hours worked, to a maximum of 24 hours per year. Employees may use sick time for the usual reasons, i.e., the employee’s or family member’s illness, injury or health condition; when the employee’s workplace or a child’s school is closed due to a public health emergency, and for reasons relating to domestic violence, sexual assault or stalking. The ordinance also allows employees to use sick time for bereavement for the death of a  family member.

Welcome Tacoma!

Doctor Disputes Own Entry on FMLA Certification; Keeps Interference Case Alive

A doctor’s testimony that he treated the plaintiff twice for bronchitis was sufficient to deny the employer’s motion for summary judgment on plaintiff’s FMLA interference claim, even though the doctor had stated on the FMLA certification form that he had only treated the plaintiff once for bronchitis.  Kossowski v. City of Naples (M.D. FL, February 6, 2015).

The decision is troubling for employers, who rely on information provided by health care providers on the certification to decide whether to grant or deny FMLA leave. That is the purpose of the health care provider’s certification. If a health care provider could later dispute his or her own certification entries, even the most astute employer’s decision-making process would be jeopardized.

The parties disputed whether plaintiff had a “serious health condition” under the FMLA. The critical issue was whether the plaintiff had “continuing treatment by a health care provider.” On the FMLA certification form, the plaintiff’s doctor indicated that he had treated the patient on February 4 only.  During the litigation, the plaintiff argued that he actually treated with his physician twice. The second treatment occurred on February 11, when he visited his doctor to obtain a return to work authorization and to have his FMLA documents filled out. The doctor testified that he also examined the plaintiff on February 11.  Because of the dispute about whether the doctor treated the plaintiff once or twice, and “that the inferences arising from these facts may differ,” the court denied the employer’s motion for summary judgment on this FMLA interference claim.

The employee had also argued that he had a “serious health condition” because he treated with a health care provider once and had a regimen of continuing treatment. The employer argued that bronchitis was not a “serious health condition” because it was more like the common cold and the medication prescribed—a Z-Pak and a cough syrup with codeine–was a preventive measure, not treatment of bronchitis. The court denied the employer’s motion for summary judgment on that argument as well.

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.