The EEOC has brought a class action under the Genetic Information and Nondiscrimination Act (GINA) against a nursing and rehabilitation center, alleging that the defendant-employer "requires a class of applicants and employees to provide genetic information in response to questions about family medical history" as part of its pre-employment, return-to-work and annual medical exams of its staff.  EEOC v. Founders Pavilion, Inc., d/b/a Founders Pavilion (W.D.N.Y, filed on May 16, 2013).

GINA is a federal law that aims to eliminate the potential abuses relating to the use and disclosure of “genetic information.” GINA’s primary objective is to prohibit discrimination on the basis of “genetic information” in employment and health insurance plans.  The law restricts the use of, access to and disclosure of “genetic information” based on the idea that doing so will reduce discrimination.  GINA’s definition of “genetic information” includes family medical history.

The EEOC noted in its press release concerning the case that "[o]ne of the six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP) is for the agency to address emerging and developing issues in equal employment law, which includes genetic discrimination."

The Founders Pavilion Complaint is the second GINA Complaint filed by the EEOC.  The first was filed on May 7, 2013 in the Northern District of Oklahoma against Fabricut, Inc., and also alleged that the employer violated GINA by requesting family medical history in a post-offer medical examination.  The parties filed a Consent Decree simultaneous with the filing of the Complaint. Among other provisions, the Consent Decree, requires Fabricut to pay $50,000 to resolve the GINA and ADA allegations and to conduct anti-discrimination training of employees with hiring responsibilities.
 

A mammography tech with epilepsy is not a qualified individual with a disability under the ADA because she cannot perform the essential functions of her job "during the indefinite periods in which she was incapacitated," according to the Eighth Circuit Court of Appeals. Olsen v. Capital Region Medical Center (8th Cir. May 7, 2013). We had posted previously about the district court’s decision granting the employer summary judgment on plaintiff’s ADA claim.

During seizures, the tech would lose consciousness for several minutes.  Twice she had a seizure while conducting mammogram examinations on patients. In affirming summary judgment, the court also rejected plaintiff’s argument that her employer failed to accommodate her by providing her "intermittent rest" because rest did not eliminate the seizures and did not allow her to perform her essential job functions during her periods of temporary incapacity. "The hospital need not subject its patients to potential physical and emotional trauma to comply with its duties" under the ADA, the court added.

Prior to the ADA Amendments Act, some courts had held that an employee who loses consciousness at work periodically was not "disabled" because the episodes were intermittent and, as a result, were not substantially limiting. As a result of the ADAAA, the medical conditions leading to the loss of consciousness are likely "disabilities." The Eighth Circuit’s holding that an employee who passes out at work as a result of such a medical condition is not a qualified individual with a disability provides employers much needed guidance in responding to these situations.

A week after the Olsen decision, the EEOC issued “Questions and Answers about Epilepsy in the Workplace and the Americans with Disabilities Act.” The Q’s and A’s do not discuss whether an individual with epilepsy who has seizures at work is a qualified individual with a disability, although it notes that an employer may need to provide “a private areas to rest after [an employee has] a seizure” as a reasonable accommodation.
 

On May 15, 2013, the EEOC issued revised “Q & A” documents addressing how the ADA applies to job applicants and employees with cancer, diabetes, epilepsy and learning disabilities.  http://www.eeoc.gov/eeoc/newsroom/release/5-15-13.cfm

Each of the revised Q & A documents also answers questions about topics such as: when an employer may obtain medical information from applicants and employees; what types of reasonable accommodations individuals with these particular disabilities might need; how an employer should handle safety concerns; and what an employer should do to prevent and correct disability-based harassment.  Notably, the Q & A documents state that even applicants and employees with diabetes and epilepsy may be qualified to operate Commercial Motor Vehicles requiring individuals to meet certain minimum physical standards under the U.S. Department of Transportation (DOT) regulations based on established DOT waiver programs. http://www.fmcsa.dot.gov/rules-regulations/administration/fmcsr/fmcsrruletext.aspx?reg=391.41.  Thus, the revised guidance may be of particular interest to employers in the trucking industry.

 

A flexible work schedule is not a reasonable accommodation if it will not allow the employee to perform the essential functions of her job, which can include regular and punctual attendance, according to the Tenth Circuit. Murphy v Samson Resources Co. (10th Cir. May 8, 2013). The court affirmed summary judgment in favor of the employer, holding that the employee was not “qualified” for her position due to her absences for migraine headaches.

The employee’s job description for her accounting assistant position stated that regular and punctual attendance was an essential function of the job. The employee did not dispute that regular and punctual attendance was an essential function but argued that she was nonetheless “qualified” under the ADA because a flexible schedule was a reasonable accommodation that would enable her to perform her job. The court rejected this argument because even with the flexible schedule, she was making mistakes in her work and failed to make up all the time she had missed. The court reiterated that an employee’s request to be relieved from an essential function is not a reasonable or even plausible accommodation.

The employee also argued that the Company should have granted her leave under its short term disability policy as a reasonable accommodation. In rejecting this argument, the court said the plaintiff had “failed to present evidence of the expected duration of her impairment.” It was “uncertain if or when Murphy would be able to return to work given the sporadic nature of her migraines,” the court added.

Are employees who request FMLA leave before they are eligible for the leave entitled to the protections of the FMLA? It depends on whether the employee requesting leave will be eligible at the time of the leave.

The Eleventh Circuit Court of Appeals has held that the FMLA protects a pre-eligibility request for post-eligibility leave. Pereda v. Brookdale Senior Living Communities, Inc. (11th Cir. Jan. 10, 2012). So "pre-post" is protected.

The Seventh Circuit Court of Appeals has held that the FMLA does not protect a pre-eligibility request for pre-eligibility leave. Basden v. Professional Transportation, Inc. (7th Cir. May 8, 2013). So "pre-pre" is not.

 

An employer lawfully terminated an employee pursuant to an attendance policy that did not distinguish between absences for medical reasons and other reasons, according to the Seventh Circuit Court of Appeals. Basden v. Professional Transportation, Inc. (7th Cir. May 8, 2013). Some of the plaintiff’s absences were due to the onset and symptoms of her medical condition, multiple sclerosis. She provided a doctor’s note after each of her absences.

In affirming summary judgment for the employer, the Court held that attendance is generally an essential job requirement and an employer “need not accommodate erratic or unreliable attendance.” The Court added that a “plaintiff whose disability prevents her from coming to work regularly cannot perform the essential functions of her job, and thus cannot be a qualified individual for ADA purposes.” This statement is significant because of the uncertainty surrounding the administration of no-fault attendance policies. The EEOC has contended that an employer must excuse absences caused by a disability as a reasonable accommodation, unless to do so would be an undue hardship.

The Court also held the employer did not fail to accommodate the plaintiff when it rejected her request for a 30 day unpaid leave and then terminated her. While the court held that the employer might not have engaged in the interactive process concerning the leave request appropriately, the plaintiff did not establish that the leave or any other accommodation would have resulted in her regular attendance when she would have returned.
 

Florida may join Wisconsin and Indiana in putting the kibosh on local leave and attendance laws in their states. On May 2, 2013, the Florida Legislature passed House Bill 655, which prevents Florida’s political subdivisions from requiring private employers to provide employees with disability, sick leave or “personal necessity” benefits, among others. The bill, which would be effective on July 1, 2013, is awaiting Governor Scott’s signature.

Florida’s interest in restricting political subdivisions from acting independently on workplace issues began in 2003, when, in response to “living wage” ordinances passed by municipalities in other states, Florida passed a law prohibiting local governments from establishing minimum wage levels for private employers in their individual jurisdictions.  Allowing municipalities to do so “would threaten to drive businesses out of these communities and out of the state in search of a more favorable and uniform business environment,” according to the introductory provisions of that bill.

The Equal Employment Opportunity Commission (EEOC) is holding a public meeting this Wednesday, May 8, 2013, to discuss how wellness programs should be treated under various federal laws such as the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA) and other statutes enforced by the EEOC.

The EEOC will hear from at least seven confirmed panelists who will discuss the interaction between the above statutes and wellness programs with an emphasis on how these laws might be implicated.

The meeting will be an open session beginning at 9:00 a.m. EST at agency headquarters, 131 M Street, N.E., Washington, D.C. 20507.

As we noted in an earlier post, the EEOC regulations, and the EEOC’s Interpretive and Enforcement Guidance permit employers to conduct voluntary medical examinations, including voluntary medical histories, as part of a voluntary employee wellness program. 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.” The employer community has long-awaited guidance from the EEOC on the nature and extent of incentives employers can offer in their wellness plans. Perhaps this meeting will begin the process leading to that EEOC guidance.

A federally subsidized housing complex designed by a deaf architect, with such features as video phones, lights that flash when the phone or doorbell rings, and wiring that sends announcements to residents’ hearing aids, is being accused by the federal government of discrimination against those who are not deaf, according to a New York Times report. Those with hearing impairments occupy more than 90% of the housing units in the Arizona complex.

A spokesperson for the U.S. Department of Housing and Urban Development said in a statement that “federal law prohibits facilities that receive HUD funds from providing separate or different housing for one group of individuals with disabilities because this practice denies or limits access to housing for other individuals based on the types of disabilities they have,” according to the Times report.

 

To what extent may an employer contact an employee on FMLA leave about work-related matters before that contact becomes, in effect, a denial of FMLA leave? 

"Fielding occasional calls about one’s job while on leave is a professional courtesy that does not abrogate or interfere with the exercise of an employee’s FMLA rights," according to a 2009 federal district court in New York. When such calls are "limited to the scope of passing on institutional knowledge to new staff, or providing closure on completed assignments, employers do not violate the FMLA by making such calls," the court added.

In a later case, an employer required an employee on FMLA leave to complete reviews of her subordinates and to enter certain test data in a computer. The plaintiff also claimed her employer required her to complete certain educational training during her leave. Holding that a jury could find that the employer’s communications with the plaintiff went beyond merely passing on institutional knowledge and providing closure on completed assignments, the court denied summary judgment to the employer. Vess v. Scott Medical Corporation (S.D. Ohio, March 15, 2013).