Disability, Leave & Health Management Blog : Attorneys & Lawyers for Employer Legal Protections in Businesses Nationwide

Congress confirmed last week President Obama’s recess appointments of two employee leave mavens as EEOC Commissioners as well as the EEOC Chair and General Counsel. The EEOC now has a full complement of members with confirmed appointments.

EEOC Commissioners Chai Feldblum, a former Georgetown University Law Professor, and Victoria Lipnic, a former U.S. Assistant Secretary of Labor, have been serving under recess appointments since April 2010.   Commissioner Feldbum was confirmed for a term expiring on July 1, 2013; Commissioner Lipnic’s term will expire on July 1, 2015.

Both Commissioners have been in the vanguard on employee leave issues. Commissioner Feldblum was involved in drafting and negotiating the Americans with Disabilities Act and the 2009 Americans with Disabilities Act Amendments Act. Also, while at Georgetown, Feldblum was the Co-Director of Workplace Flexibility 2010 , a public policy initiative which advocates for flexible work arrangements, including time off.

During Commissioner Lipnic’s tenure at the DOL, the agency proposed revised FMLA regulations, evaluated comments on that proposal and issued final revised regulations, which went into effect in January 2009. The FMLA entitles eligible employees to time off from work and these regulations define the parameters of that entitlement.

Congress also confirmed the nomination of Jacqueline A. Berrien to be Chair of the EEOC and David Lopez to be General Counsel. Ms. Berrien and Mr. Lopez had also been serving under recess appointments.

Leave and disability related issues will fare prominently on the EEOC’s 2011 agenda. The EEOC’s final regulations on GINA are effective in January 2011.  Disability and leave management attorneys eagerly await the EEOC’s final rule to implement the equal employment provisions of the ADA Amendments Act. The EEOC had stated in its recent Semiannual Regulatory Agenda that it “plans to issue a final rule by the end of December, 2010” subject to expedited review by the Office of Information and Regulatory Affairs. With but hours left in 2010, the EEOC has not yet published the final rule. Also, for FY 2009, the most recent period for reported statistics, the number of disability charges filed with the EEOC exceeded, 21,000, the most ever. Add to this the fact that courts are just now beginning to decide cases under the ADA Amendments Act and one can comfortably speculate that the challenges facing employers to manage workplace disability issues, including attendance and leaves, will grow in 2011.

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Let’s start with the cats. The Supreme Court of the United States heard oral argument recently in Staub v. Proctor Hospital, a case involving an employer’s “cat’s paw” liability, a theory derived from  17th Century French tale about a conniving monkey who convinces a cat to knock chestnuts from a fire to the monkey; the cat uses her paw to do so. Translated to employment law, the theory is that a manager desiring to terminate an employee for discriminatory reasons (the monkey) manipulates another manager who does not have a discriminatory motive (the cat’s paw) to make the decision to terminate the employee. Absent a discriminatory motive, the termination could not be unlawful, the employer argues. In Staub, the plaintiff claimed his termination violated USERRA because his supervisor had an anti-military bias but a hospital administrator without any such bias—the cat’s paw--made the termination decision. In many ADA termination cases, the employer’s defense is that the decider did not know the plaintiff had a disability---although other managers may have known--so it could not possibly have terminated the employee for a discriminatory reason. The Staub decision will likely affect the scope of this defense.

Now the dogs. The ADA prohibits discrimination against dogs, service dog breeds to be more specific.   Some cities have outlawed certain breeds based on safety concerns, whether real or perceived. The U.S. Department of Justice’s recently issued final rule adopting accessibility standards states that the DOJ “does not believe that it is either appropriate or consistent with the ADA to defer to local laws that prohibit certain breeds of dogs based on local concerns that these breeds may have a history of unprovoked aggression or attacks”  when assessing the rights of disabled individuals to use service dogs. Such deference would limit the rights of disabled individuals who use service animals “based on where they live rather than on whether the use of a particular animal poses a direct threat to the health and safety of others,” according to the DOJ.

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The class action wave seems to have come ashore for employers using financial incentives to drive participation in wellness programs.  Leveraging the uncertain legal environment we have discussed previously, a federal district court in Florida granted class certification to current and former employees charged a $20 bi-weekly surcharge for not participating in a "voluntary" wellness program requiring biometric testing (finger stick for glucose and cholesterol) and completion of an online health risk assessment.   

The federal court complaint, filed on August 10, 2010, sought a class of all current and former employees who are/were enrolled in Broward County's health insurance plan since the inception of its 2009-2010 "voluntary" wellness program, approximately 5,000 individuals.  Alternatively, the complaint sought a class of 267 current and former employees who, in addition to being enrolled in the applicable health plan, paid the $20 bi-weekly surcharge.  In addition to declaratory and injunctive relief and attorneys' fees, the complaint initially sought to recover damages for the 267 class members who allegedly paid surcharges and emotional distress damages for an unidentified portion of the larger 5,000 employee class who allegedly participated in the "voluntary" wellness program out of fear of losing $20 from their pay each and every week on a go-forward basis.    

In its December 6, 2010 Order, the Court grants class certification for the smaller class of individuals who allegedly were enrolled in the health plan and paid the $20 surcharge, finding that plaintiff had satisfied both Rule 23(a) and Rule 23(b)(3) requirements for class certification.  The Court's Order does not discuss whether a class could have been certified under Rule 23(a) or (b) for the larger class referenced in the complaint.  Apparently, the sole named plaintiff, Bradley Seff, voluntarily withdrew his claims for declaratory and injunctive relief after Broward County claimed he resigned his employment and, therefore,lacked standing to seek such relief on behalf of the class.    

As the Court noted in its Ruling, the crux of the case is whether Broward's "voluntary" wellness program is voluntary within the meaning of the ADA.  In discussing Rule 23(a) requirement of "commonality", the Court wrote, "[b]ecause Broward's policy applied to all employees who enrolled in the health benefits program, and the class is limited to those employees who incurred a charge, it is likely that these issues can be resolved without individualized factual or legal inquiries."

Many employers believe reasonable incentives, whether framed as premium discounts or surcharges, do not violate the ADA's requirement that medical inquiries be either voluntary or "job-related and consistent with business necessity."  While such programs pass muster under HIPAA, unfortunately, the absence of caselaw continues to create uncertainty over the legality of such programs under the ADA. 

It will be interesting to see whether the Broward County case moves to a ruling on the merits.  it would be nice to have a court weigh in on whether reasonable surcharges violate the ADA.  Until employers receive such guidance, uncertainty will continue to hover over these very valuable programs.

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If it is any comfort to private sector employers, when it comes to managing an employee’s entitlement to time off under a myriad of legal requirements and internal personnel policies, the federal government, as an employer, faces similar challenges. On December 3, the Office of Personnel Management issued final regulations addressing the use of sick leave for exposure to a communicable disease, a new “advanced sick leave” policy, and substitution of sick leave for FMLA to care for a seriously injured or ill covered service member. Twenty pages of discussion precede the two pages of new regulations, which illustrates what all employers have come to know---to state each entitlement is the easy part; to determine how the various laws applicable in a particular situation work together is the real challenge.

The discussion is proof that the most fundamental requirement to being successful in managing employee leaves, to making sure that employees receive their “entitlements” under both internal policies and the ever-increasing number of leave laws, is to have “peripheral vision,” to know all the various laws and policies that may apply in a given situation, to be able to weed out those that do not apply, to administer the leave to satisfy the requirements of those that do, and to defend any legal claim that might arise with confidence and documentation.    

The OPM’s table of the five sources of entitlements for federal employees to care for a family member or covered servicemember illustrates that the federal government, as an employer, is focused on peripheral vision as well. The examples of the interaction between sick leave and FMLA leave in the discussion  apply that vision to situations which private sector employees face regularly.  

So at least on this topic, do both the private sector and the federal government, as an employer, have the same challenges? Well, not quite. The private sector has the additional challenges of state and local leave laws.

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