The EEOC today released for public comment its proposed rule to amend its regulations and interpretive guidance as they relate to wellness programs, including the size of incentives an employer may offer yet still have a “voluntary” wellness program under the ADA. For additional information concerning the proposed rule, click here.
Commenting on paid leave recently, U.S. Secretary of Labor Thomas E. Perez said:
We are on the cusp of huge breakthroughs on paid family leave and paid sick days. I believe that in 30 years, we will look back at this as the moment we began to turn the corner, when a sleeper issue finally began to awaken and when grass roots momentum began to gather steam and roll toward a broad national consensus.
No one can seriously doubt that we are on a cusp of expanding paid family leave and sick days. The number of jurisdictions with paid sick leave laws has more than doubled in a year; numerous states are focused on how to provide pay during family and medical leave.
Secretary Perez looks into his crystal ball and predicts that 30 years hence, we will look back to today as the moment when “we began to turn the corner” toward a national consensus on paid family leave and sick days. We are all familiar with the admonition that past results are not a guarantee of future performance. But based on the proliferation of leave laws in the past 30 years, I suspect that in the next 30 years, the compliance challenge for employers will grow exponentially and from the leave management perspective, employers will be longing for “the good old days.”
Thirty years ago, there were no federal leave laws and just a smattering of state leave laws, most relating to workers compensation and pregnancy. Since then, the federal government has passed the Family and Medical Leave Act and the ADA, the latter referred to by at least one EEOC Commissioner as an “inadvertent leave law.” Beyond that, we have a stew of state and municipality leave laws. A dozen or so states have passed their own versions of family and medical leave laws, some of which are similar to the federal FMLA, others much less so, each with its own idiosyncrasies. Then we have 22 jurisdictions (3 states and 19 cities), and counting, that have enacted paid sick leave (PSL) laws. There is no consistency in these laws: what employers are covered; what employees are eligible; what notice an employer must give or an employee must give. Also, it is unclear whether or how these PSL laws are integrated into the state and federal family and medical leave laws. There is a collection of other state and local leave laws dealing with family and medical issues, but you get the picture. Add it all up, and the leave management challenge for a multi-state employer committed to compliance is daunting.
Can it get any more complicated? I have asked myself this many times. Looking into my crystal ball, the answer is “absolutely.” More leave laws with little or no consistency and no effort to integrate them into a coherent leave approach will make leave management more complicated, and that is what is likely to occur in the next 30 years. Perhaps the focus of leave laws for the next 30 years should be on uniformity and integration. Let’s look to the future for that direction.
When I wrote last week that telework was “in the air” because we were anxiously awaiting the en banc Sixth Circuit decision in EEOC v. Ford Motor Company, little did I know that the decision was likely getting a final review before its release, which occurred on Friday.
Common sense trumps the EEOC’s position on telework, the Court said, in the most significant decision on the subject in the 25-year history of the ADA. The EEOC had alleged that the company failed to provide a reseller with a reasonable accommodation by denying her request to work at home up to four days per week. The Sixth Circuit affirmed the district court’s grant of summary judgment to the company. EEOC v. Ford Motor Company, 6th Cir. April 10, 2015).
“Much ink has been spilled establishing a general rule that, with few exceptions, ‘an employee who does not come to work cannot perform any of his job functions, essential or otherwise,’” the court said. “[M]ost jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation,” the court noted.
The court suggested that stepping back from the legal analysis provides perspective. “Non-lawyers would readily understand that regular on-site attendance is required for interactive jobs.” “[E]quipped with a 1400-or-so page record, standards of review, burdens of proof, and a seven-factor balancing test, the answer may seem more difficult,” the court added.
The court said that its holding that “[r]egular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs,” is supported by “case law from around the country, the statute’s language, its regulations, and the EEOC’s guidance.”
The days of referring to the EEOC’s guidance on wellness incentives under the ADA and GINA as “long-awaited” may be coming to an end. The EEOC announced that it has sent a Notice of Proposed Rulemaking (NPRM) on this issue to the Office of Management and Budget (OMB) for clearance.
The NPRM is not available for publication. A primary issue is the extent to which an employer can offer financial incentives to employees, their spouses and their dependents to participate in an employer’s wellness initiatives without running afoul of the ADA and GINA. The EEOC’s perspective on allowable incentives got much attention recently when it sought to enjoin an employer from implementing its incentive program, which the employer contended complied with the wellness incentive rules in the Affordable Care Act (ACA). In that litigation, the EEOC declined to define the line between lawful and unlawful financial incentives but argued that the employer’s incentives were so large that participation in that program was not voluntary. The court denied the injunction.
In an apparent response to that litigation, in March 2015, a group of Republican Senators and Representatives introduced the Preserving Employee Wellness Programs Act (H.R. 1189 and S. 620) to harmonize the wellness program provisions in the ACA with potentially conflicting provisions in the ADA and GINA. Under those bills, a wellness program with incentives that comply with the ACA would be protected from attack under the ADA and GINA.
The EEOC’s NPRM may propose consistency with the ACA. The Kiplinger Letter (subscription service) reports that under the EEOC’s guidelines, “[f]or example, employers can discount health insurance premiums by up to 30% for employees who make lifestyle changes: Quitting cigarettes, exercising regularly, etc. Yet-to-be-defined steps will aim to prevent discrimination against disabled workers.”
After OMB approves the NPRM, the proposed rule will be published in the Federal Register for a 60-day public notice and comment period. For additional information on this issue, click here.
With telework as a reasonable accommodation under the ADA in the air as we await anxiously the Sixth Circuit’s en banc decision in EEOC v. Ford Motor Company, a recent decision concerning the EEOC’s failure to provide telework as a reasonable accommodation got my attention. Miles’ law comes to mind.
Named for a chief of the Bureau of the Budget in the 1940’s, the “law” is based on Miles’ observation about an employee’s change in perspective when he went from a position charged with reviewing budgets to a position in an agency whose budgets were reviewed. “Where you stand depends on where you sit,” Miles observed.
In the recent case, the EEOC denied an EEOC employee’s request to telework as an accommodation for her medical condition. The EEOC argued that it would be an undue hardship to grant the request because the plaintiff, a newly-hired analyst, “needed to be in the office to receive assignments and on-the-job training” and needed “to review onsite files that could not be accessed remotely.” The plaintiff argued that there was no formal training for her position, that she had already been trained, and that she could have done her work remotely with technology and the assistance of others in the office. The court denied the EEOC’s motion for summary judgment on the telework claim, finding that there were factual issues about whether telework was a reasonable accommodation. Buie v. Jacqueline Berrien et al (D.D.C., March 27, 2015).
In the Ford Motor Company case, the EEOC challenged the company’s decision that it would be an undue hardship to allow a resale buyer to work at home for up to four days per week. The company’s managers argued that the buyer’s being at work was essential “because face-to-face interactions facilitate group problem-solving.”
Which raises the obvious question: is the EEOC’s view of telework as a reasonable accommodation the same whether it is a plaintiff or a defendant? Or, does the counsel table at which it sits determine where it stands?
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.
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.
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.”
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.
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.