Earlier this year, we posted that we continued to wait for ADA “voluntary” wellness plan guidance from the EEOC. In a January 18, 2013 informal letter responding to an inquiry concerning a wellness program, the EEOC reiterated its 2000 Guidance 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.”  In a formal 2000 Guidance, the EEOC stated that “[a] wellness program is ‘voluntary’ as long as an employer neither requires participation nor penalizes employees who do not participate.” This means that the EEOC might take the position that the larger the reward or penalty, the more likely the program is not voluntary under either the ADA or the Genetic Information Nondiscrimination Act (GINA).

In a September 23, 2013 letter to the EEOC, Congresswoman Louise M. Slaughter noted that she “hope[s] the EEOC promptly drafts sub-regulatory guidance” concerning the voluntary nature of wellness plans. Congresswoman Slaughter’s letter was in reaction to newspaper reports that Penn State University employees who did not submit to “an online health assessment that requested sensitive and personal health information” would be charged a “$100 noncompliance fee per month.” According to the New York Times, Penn State has shelved part of that program. Congresswoman Slaughter’s letter notes that the Penn State plan “still raises concerns about the type of information that can be collected through wellness programs and the definition of ‘voluntary’ participation.”

Employer wellness plans already need to comply with regulations issued under the Affordable Care Act by numerous federal agencies but those regulations state that compliance with their regulations is not necessarily compliance with other laws, i.e., the ADA and GINA.  So while more employers adopt wellness programs complying with the regulations of various agencies, the EEOC’s silence leaves employers in limbo as to whether those programs are legal.

More than a year ago, we posted that waiting for the EEOCs guidance on leave as a reasonable accommodation under the ADA is like waiting for Beckett’s Godot: it is not coming today; it might come tomorrow.  Estragon and Vladimir can add the EEOC’s guidance on wellness programz to the list of things for which they are waiting. 
 

Billed as a measure to deter more “family flight” from San Francisco, the City’s Board of Supervisors have passed an ordinance giving employees who are caretakers or parents the “right to request” flexible or predictable work schedules. The mayor has indicated he will sign the ordinance into law.

San Francisco has the lowest percentage of children of any major city in the country, according to the Legislative Fact Sheet concerning the ordinance.

The Fact Sheet notes that flexible scheduling would give employees more choices about how, when, and where they work and might include a change to start and end times, part time schedules, part year schedules, job sharing and telecommuting. Predictable scheduling involves providing work schedules with adequate notice. Both flexibility and predictability would enable employees to better balance their work and care-giving responsibilities, according to the Fact Sheet.

The ordinance has a time frame within which an employer must consider and respond, in writing, to an employee request. An employer may deny a request for "a bona fide business reason," such as “identifiable” increased costs, a detrimental effect on the ability to meet client or customer demands, an inability to organize work among remaining employees and insufficient work during the requested work time.

The ordinance also prohibits employers from taking adverse action against an employee because the employee is a caregiver and from retaliating against an employee who exercises rights under the ordinance.

The ordinance will apply to employers with at least 20 employees, and will take effect in January 2014.

Earlier this year, Vermont passed a “right to request” a flexible schedule law, which also takes effect on January 1, 2014. For additional information concerning that law, see here and here.

 

A 2011 amendment to Iowa’s gun control law requires a sheriff to issue a permit to carry a gun to an applicant unless the applicant is disqualified for any of six enumerated reasons.  None of these disqualifies an applicant who is unable to see.

One Iowa county has issued weapons permits to individuals “who can’t legally drive and were unable to read the application forms or had difficulty doing so because of visual impairments,” according to DesMoinesRegister.com. Another sheriff said he “would not hesitate” to deny an application submitted by a blind individual, according to that same report.

Adding a federal aspect to the debate, a disability rights organization in Iowa claims that to deny a gun permit to blind individuals may violate the Americans with Disabilities Act, according to a Findlaw report.

Earlier this year, in an interview reported in huffingtonpost.com, blind singer Stevie Wonder, a critic of lax gun control laws, is quoted as saying “I was talking to one of my friends and I said, ‘You know what? You should go get me a gun or me go with you to get a gun and then show how easy it is for me to get a gun. Imagine me with a gun. It’s just crazy.” 

More to come on this one, undoubtedly.
 

On September 24, 2013, the New York City Council unanimously approved legislation that requires most New York City employers to provide reasonable accommodation for an employee’s pregnancy, childbirth or related medical conditions. While the legislation must be approved by the Mayor to become law, the City Council passed the measure by a seemingly veto-proof 47-0 vote.  The law takes effect 120 days after the Mayor approves the measure or the City Council overrides the Mayor’s veto, whichever applies.Employers should expect the law to go into effect in the first months of 2014. Thus, New York City appears poised to join a growing number of jurisdictions, including California and Maryland (effective October 1, 2013), that mandate some form of accommodation to pregnant employees. These state and local requirements must be satisfied in addition to any accommodations required under federal laws such as the Americans with Disabilities Act (ADA) and the Pregnancy Discrimination Act (PDA).

Employers with at least four employees are subject to this new law, which provides a non-exhaustive list of examples of reasonable accommodation, including bathroom breaks, leave for a period of disability arising from childbirth, breaks to facilitate water intake, periodic rest for those who stand for long periods of time and assistance with manual labor, among other things.

Employers are not required to provide otherwise reasonable accommodations that cause undue hardship(i.e., significant operational difficulty and/or expense), but the employer has the burden of proving the undue hardship.  An employee who believes her employer has refused to provide reasonable accommodation for her pregnancy, childbirth or related medical condition can file a complaint with the New York City Commission on Human Rights (NYCCHR) or bring a lawsuit in court seeking damages, including uncapped punitive damages. The rights granted to pregnant employees under this new law add to the existing rights prohibiting discrimination based upon sex and pregnancy under federal, state and city law.

Finally, covered employers are required to provide written notice to new and existing employees of their right to be free from discrimination due to pregnancy, childbirth and related medical conditions in a form and manner determined by the NYCCHR.

While the law is not yet effective, and awaits the approval of the Mayor, given the seemingly veto-proof vote of the City Council, employers may want to anticipate the enactment of this law and consider taking the following actions:
• Review with counsel their policies on reasonable accommodation;
• Review their policies, practices or contractual agreements with respect to alternative work arrangements or restricted/light duty programs; and
• Train managers and supervisors regarding procedures for responding to accommodation requests from pregnant employees.

 

A request for a reserved, on-site, free parking space is a request for an accommodation under the ADA even though it does not relate to the performance of essential job functions, according to a decision by the United States Court of Appeals for the Fifth Circuit. Feist v. State of Louisiana, (5th Cir. Sept. 16, 2013).

The plaintiff, a former assistant attorney general, sought the parking space due to a medical condition relating to her knee. Her employer denied the request. The district court granted summary judgment to the employer, holding that the plaintiff did not establish how the denial of the on-site parking limited her ability to perform her essential functions. 

Vacating that judgment, the court held that there are numerous categories of accommodation requests an employer must consider under the ADA. One of these requires an employer to make facilities readily accessible which, in this case, the parking space potentially would do for plaintiff. The court remanded the case but specifically expressed no opinion as to whether providing the parking space would be a reasonable accommodation. 
 

“Paid leave was the most prevalent employee benefit” provided by private sector employers in the United States in 2012, according to a U.S. Bureau of Labor Statistics report entitled “Beyond the Numbers.”  The report analyzed eight categories of paid leave: holidays, vacation, sick leave, personal leave, funeral leave, jury duty leave, military leave and family leave. The report compared the percent of employees receiving these benefits in 1992-1993 and in 2012.

According to the report, 61% of employers provide paid sick leave, 37% provide paid personal leave and 11% offer paid family leave. In every category of paid leave, full time employees receive the same or more paid leave as they did in 1992-1993.  Not so for part timers; fewer part timers receive paid vacation in 2012 than in 1992-1993. As you would expect, larger employers—those with at least 100 employees—are more likely to provide paid leave benefits than smaller employers.

Yet, time off from work, whether paid or not, is not truly time off for a significant number of American workers.  A recent Harris Interactive survey reports that more than 90% of Americans do some work during their personal time. According to the survey, half of Americans do some work while on vacation and 14% do not take any vacation at all. More than a third of Americans spent at least 10 hours per week working while on personal time.
 

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) today announced a Final Rule that makes historic changes to the regulations implementing Section 503 of the Rehabilitation Act with regard to the employment of individuals with disabilities, referred to in the Rule as “IWDs.” As explained in the DOL’s announcement, “Section 503 prohibits federal contractors and subcontractors from discriminating in employment against individuals with disabilities, and requires these employers to take affirmative action to recruit, hire, promote, and retain these individuals.”

For the first time, the OFCCP has established a “nationwide 7% utilization goal for qualified IWDs.” Contractors with more than 100 employees will apply this goal to each of their job groups; those with 100 or less employees will apply it to their entire workforce.  Additional provisions require contractors: to keep and analyze certain data with regard to the employment of IWDs; to invite applicants and employees to self-identify as IWDs; to incorporate specific equal employment opportunity language in their subcontracts; and to allow the OFCCP to review documents as part of either a compliance check or focused review.

With regard to providing reasonable accommodations, the Proposed Rule had required contractors to implement written procedures for processing requests for reasonable accommodation. The Final Rule eliminated this requirement  but states that implementing such a procedure is a “best practice” and includes in Appendix B 14 points of “guidance” for contractors to consider in developing this “best practice.” 

The Final Rule is effective 180 days after its publication in the Federal Register, which is expected to occur soon. However, the Final Rule “seeks to provide contractors the opportunity to maintain their current AAP cycle.”
 

 

More than half of employers intend to shift some of the increased costs of the Affordable Care Act to employees, according to a recent study by the International Foundation of Employee Benefit Plans.  The 2013 study reports that employers are planning to deal with the increased costs of the ACA by shifting costs to employees (52.8%); increasing preventive measures such as wellness and disease management plans (36.4%); reducing current levels of benefit coverage (29.1%); shifting to a high-deductible health plan (28%) using exchanges and offering employees a financial subsidy (7%); shifting to a bare-bones limited health plan (6.2%); and dropping health coverage (2.4%). 18.6% are not changing their health plans in response to the ACA, according to the study.

In Cleveland v. Policy Management Systems Corp., the United States Supreme Court created a framework for analyzing how inconsistent statements on applications for disability benefits concerning a plaintiff’s ability to work affect an ADA claim.The analysis focuses on whether the plaintiff’s statements “genuinely conflicted with her ADA claim” and if so, whether the plaintiff has offered a “sufficient explanation” for any inconsistency.

The Ninth Circuit recently applied the Cleveland analysis in a case brought by a school teacher.  Over a span of five months, in her applications for FMLA benefits, disability benefits and disability retirement, plaintiff or her doctor wrote variously that she is “presently incapacitated” and could not “work at all until released by [a] doctor”; that she would “be out of work indefinitely”; and that she was “unable to work due to injury or mental or physical illness.”  Her retirement benefits application was approved due to her “total and permanent disability.”

The plaintiff sued under the ADA, claiming that her employer denied her a reasonable accommodation. The Cleveland conundrum was front and center. "This case turns on whether [plaintiff’s] claims for disability benefits negate her ability to prove that she is a qualified individual with a disability under the ADA,” observed the Ninth Circuit.

Reversing summary judgment for the employer, the court held that the plaintiff’s statements did not genuinely conflict with her assertion that she is a qualified individual with a disability because the prior inquiries did not ask whether the plaintiff could work with a reasonable accommodation.  The court also noted that an individual’s ability to work can change over time. The fact that plaintiff may have been unable to work before the beginning of the school year does not mean the plaintiff was unable to work once the school year arrived,  or obtain a leave of absence at that time. Smith v. Clark County School District (9th Cir. August 21, 2013).
 

Medical marijuana is in the news for a variety of reasons.

On the legal front, the primary issue is that the federal government classifies marijuana as a controlled substance while 20 states have passed laws allowing its use for medical reasons. President Obama’s spokesperson said recently that the President “does not, at this point, advocate a change in the law,” which means that a federalism battle looms on numerous fronts.

A federal district court in Colorado held recently that an employer lawfully terminated an employee licensed to use marijuana because he tested positive for marijuana. The court rejected claims that such termination invaded the plaintiff’s privacy, or violated Colorado’s laws prohibiting discrimination based on disability or based on an employee’s engaging in lawful activities off the employer’s premises.  Curry v. Millercoors, Inc. (D.Co. August 21, 2013). This opinion is consistent with state court decisions in Colorado and California, which we have posted about previously. 

Also, Connecticut is close to adopting regulations to implement its new medical marijuana law. The Department of Consumer Protection has amended its initial draft regulations and they are likely to be submitted for final review soon.

The Connecticut Office of Legislative Research has issued a report comparing the Connecticut, California, Colorado and Washington medical marijuana programs.  Among its findings is that as of July 5, 2013, 735 patients have registered to use medical marijuana in Connecticut. Almost 30% (212) list post traumatic stress disorder as the primary qualifying condition, followed by spinal cord damage (192), and multiple sclerosis (141). The average patient’s age is 42.8 years; approximately 75% of registrants are male.  In Colorado, of the 105,000 registered users, the average age is 42; approximately two-thirds are male.

Finally, there is no shortage of companies interested in growing marijuana. The Boston Globe reports that over 180 applicants will be vying for the 35 dispensary licenses in Massachusetts.