EEOC’s 2016 Wellness Program Regulations, The Saga Continues…

The EEOC’s 2016 wellness program regulations are once again under fire. On October 24, 2016, AARP filed a complaint against the EEOC in D.C. federal court challenging the EEOC’s rules relating to wellness programs. See AARP v. EEOC  Specifically, AARP seeks a ruling that the 2016 Regulations relating to the Equal Employment Provisions of the Americans with Disabilities Act (the “2016 ADA Rule”) (29 C.F.R. §§ 1630.14(d)(3)) and Title II of the Genetic Information Nondiscrimination Act (the “GINA Rule”) (29 C.F.R. § 1635.8(b)(2)(iii)) are unlawful and request a preliminary injunction that would prevent the rules from taking effect on Jan. 1, 2017.  This suit is the first to specifically challenge the EEOC’s 2016 ADA Rule and GINA Rule.

AARP, which is a nonprofit organization dedicated to addressing the needs and interests of people age fifty and older, is concerned that older workers will be disproportionately affected by these regulations because older workers are more likely to have medical issues that would be disclosed to employers by medical questionnaires and could potentially expose these employee to discrimination by their employer.

Both the ADA and GINA, in an attempt by Congress to prevent such discrimination, generally prohibit an employer from requesting medical information from employees’ and their dependents. Although both statutes have an exception that relates to participation in wellness programs, each law requires that the participation be voluntary, meaning that an employer may not penalize an employee for choosing not to participate.

However, AARP claims that the 2016 ADA and GINA Rules violate the Administrative Procedures Act as well as the ADA and GINA provisions that protect employees from involuntary disclosure of their health and genetic information because the regulations are arbitrary, capricious and an abuse of discretion.  According to AARP, the 2016 rules depart from the protections of the ADA and GINA by permitting employers to penalize employees by up to 30% of the full cost of individual health insurance premiums if they choose to keep their medical information confidential. This “penalty” applies both to the employee and his or her spouse separately.   AARP contends that these regulations are clearly contrary to the ADA and GINA and go against Congress’ clear intent to ensure that employees are not pressured to reveal medical or genetic information.

Furthermore, AARP points out that for years the EEOC defended the same position regarding employers penalizing employees for not providing medical information. See EEOC v. Honeywell, Inc., No. 14-cv-04517.  The EEOC’s position has consistently been that an employee’s participation in a wellness program was only voluntary if employers did not require participation or penalize employees who choose to keep their medical and genetic information private.  However, under the 2016 Rules, the EEOC now asserts that “medical inquiries and examinations in wellness programs are ‘voluntary’ as long as the penalty for refusing them does not exceed 30% of health insurance premiums for self-only coverage.” AARP v. EEOC Complaint at 23.  There is no explanation or justification provided by the EEOC for the 30% figure.  AARP claims that this is further proof that the EEOC’s regulations are arbitrary, capricious and an abuse of discretion because the EEOC did not explain the reversal of “its longtime position that medical inquiries and examinations are only ‘voluntary’ if employees are not penalized for refusing them.” Id. at p. 24.

As these issues continue to heat up, all eyes will be on the EEOC to see how it responds. Stay tuned.

Finding the “Implicit” Accommodation Request

It is common gospel that when a qualified disabled employee requests accommodation under the Americans with Disabilities Act (“ADA”), both employer and employee must engage in an interactive dialogue to discuss the options.  But what happens when an employee merely identifies a disability but never asks to be accommodated?  In a recent decision, a sharply divided Eighth Circuit held that an employer who learns an employee cannot perform essential duties without accommodation due to a medical condition may need to treat the information as an “implicit” accommodation request.  Such an implicit request can trigger the interactive process even though the employee never specifically asked to be accommodated.  The opinion can be found hereRead More

Be Wary of Potential FMLA Violation before Terminating an Employee for Failure to Meet Performance Standards During Intermittent Leave

It is well established that the FMLA does not require an employer to reduce its performance expectations for an employee who is taking leave intermittently or on a reduced schedule.  Additionally, during the time the employee is at work, the employee must be capable of continuing to perform the essential functions of the job.  However, an employer may be required to make adjustments to productivity requirements and quotas to account for time off the employee takes that is designated as FMLA.  In Holland v. The Methodist Hospitals (N.D. Ind. Sep 30, 2016) Plaintiff claims that her employer interfered with her right to FMLA leave by not excluding leave under the FMLA from time worked when calculating whether she met her quota.  As a result, Plaintiff claims that she was unable to meet the required quota for the number of accounts she was assigned per day.  Her productivity ratings were therefore negatively impacted by the time she spent on job protected FMLA leave.

The Court held that the grant of an FMLA leave request may be “illusory” if the employee is held to the same performance or quota standards as if the employee were working her full hours.  In other words, it’s no different from telling an employee she can take FMLA leave while at the same time telling her she must make sure she works the same number of hours.

An employer can require an employee to maintain certain quality of work standards, but the quantity of work standards may need to be adjusted.  Employers may confuse this issue with the FMLA’s provision that allows an employer to deny a bonus or other payment that is based on the achievement of a specified goal such as hours worked or products sold, if the employee has not met the goal due to FMLA leave.  The FMLA guarantees a right to unpaid leave, therefore denying pay where an employee is not producing at the same level does not interfere with employee rights.  Taking disciplinary action, however, after failing to adjust performance standards could mean that the FMLA leave the employer granted to the employee  was illusory and the employer interfered with the employee’s rights under the Act.

Enhanced FMLA Fitness-for-Duty Certification Provides Comfort to Employers

An employee’s return to work following an extended FMLA leave for a serious health condition of the employee often creates concerns on the part of the employer. In these situations, employers frequently question whether the employee is really able to perform the essential functions of the job and whether returning the employee to work may expose him/her to risk of further injury (and potentially expose the employer to legal risk).  However, these concerns can often be relaxed through use of the “enhanced” fitness-for-duty certification procedures set forth in Section 312 of the Department of Labor’s FMLA Regulations, 29 C.F.R. § 825.312.

Pursuant to Section 312 of the Regulations, an employer can maintain a consistently-applied policy or practice that requires an employee to provide a fitness for duty certification following FMLA leave for the employee’s own serious health condition. Under the basic fitness-for-duty certification requirement, the employee must only provide a simple written note from the health care provider indicating the date on which the employee can return to work.  Employers who utilize this basic procedure are often left wondering whether there are any concerns with allowing such an employee to resume regular duties.

To alleviate some of the unknown that exists with the basic fitness-for-duty certification, employers can instead require that employees provide an enhanced fitness-for-duty certification before being reinstated following FMLA leave. The enhanced fitness-for-duty certification requires the employee’s health care provider to review the essential functions of the employee’s position and to state in writing that the employee is capable of performing all of those functions.  In order to trigger this requirement, employers must give written notice to the employee of the requirement to provide the enhanced fitness-for-duty certification and must provide the employee with a job description or list of essential functions to be reviewed by the health care provider.  These documents must be provided to the employee no later than the time of the Designation Notice (29 C.F.R. § 825.300(d)).

Importantly, if an employee fails to provide a properly requested fitness-for-duty certification, the employer can delay reinstatement until proper certification is provided. Recently, in Bento v. City of Milford, Case No. 3:13-CV-01385 (VAB) (D. Conn. Sep. 30, 2016), a U.S. District Court in Connecticut ruled that an employer did not violate the requirements of the FMLA when it delayed an employee’s reinstatement for six (6) days while waiting for proper certification.  There, the employee submitted a statement from a physician indicating that she was medically stable and could return to work, but the statement did not address the employee’s ability to perform the essential functions of the job and was not completed by the treating health care provider.  The Court ruled that the since the employer had properly requested an enhanced fitness-for-duty certification under Section 312 of the Regulations, the employer was within its rights to deny reinstatement until such certification was provided.

Although the process to obtain an enhanced fitness-for-duty certification requires employers to spend additional administrative resources on the front end of the FMLA leave, that additional effort and cost is typically far outweighed by receiving written confirmation from the treating health care provider that the employee truly is fit for duty.

Complimentary Webinar October 20: It Pays to Be Sick – How To Comply With Executive Order 13706


The final regulations for Executive Order 13706 (“Paid Sick Leave for Workers on Federal Contracts”) were published September 30, 2016.  Under the Executive Order and final regulations, paid sick leave obligations will begin with new solicitations and contracts beginning January 1, 2017.

Do you know if your organization is covered and if so, do you know which of your employees are entitled to paid sick leave? Do you understand how the new paid sick leave obligations work? Have you figured out how to track the hours that your employees work on covered contracts so that paid sick leave accrues properly? Have you thought about what policies and practices you need to have in place and how the new obligations will impact your current policies? Have you considered how to solve the puzzle created by the overlapping and sometimes inconsistent obligations under the Executive Order and state and local paid sick leave laws? If you are a federal contractor, these are some of the questions that should be keeping you up at night as you determine whether and to what extent you need to comply with Executive Order 13706.  If you need help with any of these questions, we’ve got the answers for you.

Join our colleagues Patricia Pryor and Leslie Stout-Tabackman on October 20, 2016 for a complimentary webinar during which they will delve into the details of the new obligations, and discuss how these regulations impact your organization and what you should be doing now to prepare.

What Am I Doing Wrong?? Common FMLA Mistakes

What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration.  Over the upcoming months, we are going to highlight some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Being too restrictive on what constitutes a serious health condition.

Employers are responsible for determining whether an eligible employee has a serious health condition (“SHC”) under the FMLA.  A SHC entitles eligible employees to FMLA leave.  A SHC often involves “continuing treatment,” which is a period of more than 3 consecutive days of incapacity (remember this is days of incapacity, not absences) coupled with either (a) 2 or more treatments within 30 days of the first day of incapacity, or (b) treatment by a health care provider at least once which results in a regimen of continuing treatment (which can be as simple as a prescription).  However, the definition does not stop there.  Also included in the definition, regardless of how many days the employee is incapacitated:

  • inpatient care (an overnight stay in the hospital, a hospice or a residential medical care facility);
  • pregnancy or prenatal care (the very fact of pregnancy);
  • chronic conditions (only requiring periodic visits at least twice a year for treatment by a health care provider);
  • permanent or long-term conditions (any condition for which treatment may not be effective, such as, asthma, diabetes, epilepsy, etc.);
  • conditions requiring multiple treatments (multiple restorative surgery, chemotherapy, physical therapy, dialysis, etc.); or
  • leave for treatment of substance abuse (as long as inpatient care and continuing treatment prongs are met and treatment is for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider ).

Courts have long opined on the prongs of the serious health condition definition.  For example, one court found that, although the employer argued that an employee’s father did not have a SHC, the father’s depression met the definition under the “continuing treatment” prong of the definition because the father received treatment at least two times over a 7-month period.  Scamihorn v. Gen. Truck Drivers, Local 952, 282 F.3d 1078 (9th Cir. 2002).   In a more recent case, a court found that an “overnight stay” in the hospital means a stay for a “substantial” period of time from one calendar day to the next calendar day, measured by the employee’s time of admission and time of discharge.  Bonkowski v. Oberg Industries, Inc., 787 F.3d 190 (3d Cir. 2015).

As best practice, employers should require employees to submit medical certifications to support FMLA leave, and then carefully review the contents of the certification against the FMLA definition of SHC.  The U.S. Department of Labor medical certification questions track the regulatory definition.  Many employers also utilize the services of a third party administrator for FMLA leaves, who also typically require medical certifications to be submitted supporting the need for leave.  The information contained in the medical certification is critical in making the determination of whether an employee has a SHC under the FMLA.  Comparing the contents of a medical certification with the FMLA SHC definition will result in a more precise analysis.

Cook County, Illinois Joins the City of Chicago in Mandating Paid Sick Leave for Employees

Cook County, Illinois, has become the most recent jurisdiction to mandate that employers provide paid sick leave benefits for eligible employees.  Beginning July 1, 2017, Cook County employers must allow eligible employees to accrue up to 40 hours of paid sick leave per year.  The Cook County “Earned Sick Leave” Ordinance was passed on October 5, 2016, and was intended to supplement the corresponding law passed by the City of Chicago on June 22, 2016.  It is anticipated that more than 400,000 suburban Cook County employees will now be eligible for paid sick leave as a result of the new Cook County Ordinance. 

The requirements of the new Cook County Ordinance closely mirror those of the Chicago Ordinance, with very few differences.  Both new laws allow employees to use paid sick leave for not only their own illness, injuries, or medical care (including preventative care), but also for the illness, injuries, or medical care of certain covered family members.  “Family member” is defined expansively and goes so far as to include individuals who have a “close association” with the employee which is “the equivalent of a family relationship.” 

Unlike any other paid sick leave laws which have been passed throughout the country, both the Cook County and Chicago Ordinances allow certain employees to carry over accrued, unused sick leave that can be used exclusively for FMLA-eligible purposes.  The carryover provisions in both new laws are somewhat ambiguous and we remain hopeful that additional regulatory guidance will be provided to employers before the laws become effective next year.        

To read more about the requirements of the new Chicago and Cook County Ordinances, click here and here


San Francisco Paid Parental Leave Becomes Effective in Less Than 3 Months

CaliforniaBeginning January 1, 2017, employers with 50 or more employees who have employees in San Francisco will need to begin providing payments to eligible employees who take time off to bond with a newborn child.  Employers with 35 or more employees become subject to the ordinance on July 1, 2017 and employers with 20 or more employees become subject to the ordinance on January 1, 2018.

The ordinance provides benefits to covered employees.  A covered employee is someone who:  (1) has worked for the covered employer for at least 90 days prior to the start of the leave period; (2) performs at least eight hours of work per week within the geographic boundaries of San Francisco; (3) at least 40% of the total weekly hours worked for the employer are within the geographic boundaries of San Francisco; and (4) is eligible to receive paid family leave compensation from the State of California under the Paid Family Leave law or an EDD approved voluntary plan.   Covered employees are entitled to receive up to 6 weeks of supplemental compensation while on leave.

Employers who have existing plans which provide for salary continuation for employees taking time off for new child bonding may be able to take advantage of an exemption in the ordinance which excludes employers who already provide paid parental leave benefits.  Employers should review their policies now to ensure that existing benefits are sufficient to satisfy the requirements of the exemption and to make necessary updates before the ordinance becomes effective.

The San Francisco Office of Labor Standards Enforcement maintains a site on its web page providing resources for the  Paid Parental Leave Ordinance.

Supreme Court Ends Obese Applicant’s ADA Claim

The nation’s highest Court began its new term on Monday, October 3, 2016 by, among other things, declining to review the Eighth Circuit’s ruling that an obese applicant did not have an actual or “regarded as” disability under the Americans with Disabilities Act (“ADA”). The Court’s decision ends a hotly contested battle which saw “friend of the court” briefs filed by the EEOC, the US Chamber of Commerce, AARP, the Equal Employment Advisory Council, and the National Federation of Independent Business Small Business Legal Center.

In 2011, BNSF Railway Co. (“BNSF”) extended a conditional offer of employment for a Machinist position to Melvin A. Morriss III.  The offer of employment was contingent upon a satisfactory medical review.  After Mr. Morriss’ medical review, BNSF rescinded the conditional offer of employment noting that Mr. Morriss was “[n]ot qualified for the safety sensitive Machinist position due to significant health and safety risks associated with Class 3 obesity ([BMI] of 40 or greater).” BNSF’s policy was not to hire applicants for safety-sensitive positions if their BMI equaled or exceeded 40.

Mr. Morriss sued BNSF for disability discrimination claiming his obesity was an actual ADA disability and BNSF regarded him as disabled.  BNSF argued it did not discriminate against Mr. Morriss since “obesity did not meet the definition of a disability under the ADA because it was not a ‘physical impairment.’”  A Nebraska district court granted BNSF summary judgment.

On appeal, the Eighth Circuit affirmed the district court’s decision holding “for obesity, even morbid obesity, to be considered a physical impairment, it must result from an underlying physiological disorder or condition.”  Rejecting the “regarded as” claim, the Court reasoned, “[t]he ADA does not prohibit discrimination based on a perception that a physical characteristic — as opposed to a physical impairment — may eventually lead to a physical impairment as defined under the Act.”  The Eighth Circuit’s decision is available here Morriss v. BNSF Railway Company, Case No. 14-3858 (8th Cir. Apr. 5, 2016).

In his petition seeking the Supreme Court’s review, Mr. Morriss argued that the split in the circuits regarding whether obesity is an ADA covered disability made “resolution of this issue [] of great importance.”  The Supreme Court nevertheless declined to review the case.  The Sixth Circuit and the Second Circuit have both held that obesity (even morbid obesity), must be the result of a physiological condition to constitute a covered disability under the ADA.  See EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436 (6th Cir. 2006); and, Francis v. City of Meriden, 129 F.3d 281 (2d Cir. 1997). However, an Eastern District of Louisiana court held  “a physiological cause for obesity is required only when an ADA disability-discrimination claimant’s weight is within the normal range.”  EEOC v. Res. For Human Dev., Inc., 827 F.Supp. 2d 688 (E.D.La. 2011).

California Governor Vetoes Parental Leave Bill Which Would Have Expanded Such Leave to Small Employers

CaliforniaThe DOL’s final rule on paid sick leave was not the only news-making event in the world of leave management last Friday.  While additional time off was being lauded by the federal government, additional protected leave was rejected in California. 

On Friday September 30, 2016, California’s Governor Brown vetoed SB 654 (Jackson), the New Parent Leave Act.  The Senate Bill would have created a new protected leave of absence for employers with 20 or more employees within a 75-mile radius in California.   The vetoed bill would have added an additional 6 weeks of “parental leave” to bond with a new child within one year of the child’s birth, adoption, or foster care placement leave, thus creating a potential total of over 5 months of protected leave for certain California employees.  The bill also would have prohibited employers from refusing to maintain and pay for coverage under a group health plan for an employee who takes the additional parental leave. Read More