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.

We posted recently about GINA’s prohibiting an employer from “actively” listening to conversations between colleagues in which they discuss their genetic information, including family medical history, and how it will limit an employer’s internet searches of applicants and employees. Add casual conversations, sometimes referred to as "water cooler" conversation, to the list of workplace activities curtailed by GINA.

Title II of GINA prohibits the use of genetic information in employment, restricts employers from requesting, requiring or purchasing genetic information, and limits employers from disclosing genetic information. This general prohibition does not apply where an employer “inadvertently” requests genetic information of the individual or the individual’s family member. Is acquisition of such information about an individual obtained from that individual or third parties during a casual conversation inadvertent?

It depends on the nature of the questions asked, according to the recently issued EEOC regulations.  Suppose an employee or employee’s family member was just diagnosed with cancer. A supervisor or manager may make a “general health inquiry” such as “How are you?” or “Did they catch it early?” or “How does your [family member] feel today?” or “Will your [family member] be OK?,” according to the regulations. If the supervisor or manager stops there, there is no GINA violation.

But if the supervisor or manager follows up those general inquiries “with questions that are probing in nature, such as whether other family members have the condition, or whether the individual has been tested for the condition,” the supervisor or manager has crossed that line into illegal requesting because these questions “are likely to result in the acquisition of genetic information.”  

Illegal internet searches. Illegal listening. Illegal casual conversations. GINA is about much more than just DNA.  This nuanced inquiry distinction gives employers a strong reason to train supervisors and managers to make sure their "water cooler" conversations do not include illegal requesting!  

Title II of GINA prohibits the use of genetic information in employment, restricts employers from requesting, requiring or purchasing genetic information, and limits employers from disclosing genetic information. We posted recently that, according to the EEOC’s newly-issued regulations, an employer who engages in certain internet searches has illegally requested genetic information.

An employer who “actively listen[s] to third party conversations” and overhears genetic information, such as family medical history, also violates GINA, according to those regulations. “Inadvertent” acquisition of genetic information, which includes “passive” acquisition, is not illegal. The final regs state that where a manager or supervisor “learns genetic information about an individual by overhearing a conversation between the individual and others,” that acquisition is inadvertent. The proposed regs also noted that an employer “inadvertently acquires family medical history where a manager or supervisor overhears a conversation among co-workers that includes information about family medical history (e..g., a conversation in which one employee tells another that her father has  Alzheimer’s disease).”

So a supervisor or manager’s “active” listening to a conversation which refers to genetic information is unlawful but “passive” overhearing is not.  The regulations give no guidance as to how to distinguish one from the other, if such a difference even exists. This nuanced auditory distinction gives employers a strong reason to train supervisors and managers to make sure they do not engage in unlawful listening!  

 

When is an employer’s searching the internet about applicants and employees illegal? Until now, perhaps not at all, but GINA is about to change that.  We posted recently that the EEOC released final regulations for Title II–the employment provisions–of GINA. Title II prohibits the use of genetic information in employment, restricts employers from requesting, requiring or purchasing genetic information, and limits employers from disclosing genetic information.  An employer who “conduct[s] an Internet search on an individual in a way that is likely to result in a covered entity obtaining genetic information,” which includes family medical history, has engaged in illegal requesting, according to those regs.  It is unclear what type of search would “likely result” in an employer’s obtaining genetic information. One commentator suggested that the EEOC in its regs specifically prohibit an employer from searching an employee’s name and a genetic marker. While the EEOC did not accept this specific recommendation, the language it adopted might encompass such a search. Alternatively, if an employer searches an applicant and is directed to a family genealogy page, it is hard to imagine that such a search would “likely result” in obtaining genetic information…unless the employer clicks on the “family medical history” tab.

Lest any employer representative be concerned about the information shared with “friends" on Facebook and other social media, who might also be applicants and employees, the EEOC noted specifically  that there is no GINA violation when the supervisor or manager “inadvertently learns genetic information from a social media platform which he or she was given permission to access by the creator of the profile at issue (e.g. a supervisor and employee are connected on a social networking site and the employee provides family medical history on his page).”

Employers should also note that in a growing number of employment lawsuits, plaintiff’s seek and obtain “ESI,” electronically stored information, which may include emails and a record of internet searches. Make sure your ESI is not evidence of a GINA violation.

 

You are not interested in the deoxyribonucleic acid (DNA) of your employees. The thought of collecting their DNA or anything about it has never crossed your mind. So why should you spend the three hours the EEOC says it will take to “gain a satisfactory understanding” of the recently released final regulations for Title II–the employment provisions–of the Genetic Information Nondiscrimination Act of 2008 (GINA)?  Because if you do any of the activities listed below, these regulations will likely affect how you do them:

 ·  You use the internet to research applicants or employees;

·  You do post-offer, pre-employment physical examinations;

·  You seek medical information when an employee requests a reasonable accommodation;

·  You request medical certification to support leave requests under a state or federal family and medical leave law, or under a personnel policy;

·  You have a wellness program which includes a health risk assessment;

·  You issue or respond to discovery requests or subpoenas for medical information in employment litigation.

Larger employers likely engage in all of these activities; all but the smallest employers engage in at least one of them. So how will GINA affect how these activities are done? More to follow on that one, but employers have less than two months, until January 10, 2011, to “gain a satisfactory understanding” of, and comply with, these GINA regulations. 

 

A startling finding from a recent study on employee and employer attitudes toward obesity was that only 2% of the participants considered themselves obese while 26% of those surveyed met or exceeded the body mass index criteria for obesity. Perhaps overcoming denial is the first step in dealing with obesity as well. 

The study was conducted by the Strategies to Overcome and Prevent (STOP) Obesity Alliance, whose website has a wealth of information about obesity.  STOP notes that obesity costs up to $45 billion annually in medical expenses and work loss and that absenteeism accounts for approximately 30% of this cost.

Among the studies other findings are:

 

·         Nearly 90% of employees believe worksite exercise facilities and healthy food in the cafeteria help to achieve and/or maintain a healthier weight;

 

·         Employees, especially obese employees, strongly support financial incentives to participate in workplace wellness and obesity programs. More than three quarters support health insurance premium discounts or other incentives for participating in health risk appraisals, 70% for participating in weight management programs, and 66% for participating in health coaching; and

 

·         Involvement in employee weight issues presents an ethical dilemma for employers. 68% of the 154 human resource professionals in the survey believe a company does not have the right to regulate employees’ weight but nearly half favor an obesity surcharge for health insurance.

 

Obesity is sometimes referred to as “the next smoking,” meaning that once employers have programs in place to address the additional workplace costs of smokers, implementing programs dealing with the increased costs related to obesity is next. The STOP report refers to a 2007 study entitled “Obesity and Workers’ Compensation: Results from the Duke Health and Safety Surveillance System,” which studied the relationship between obesity and workers compensation. The study suggested that obese employees (1) file twice as many workers comp claims, (2) have seven times higher medical costs, and (3) 13 times more lost work days than non-obese employees.  Those are three good reasons for employers to consider implementing obesity and wellness programs.

     

President Obama earlier this month signed “Rosa’s Law” which replaces the term “mental retardation” with “intellectual disability” in federal education, health and labor laws. Named after a young girl in Maryland with Down Syndrome whose family successfully led the effort to change the terminology in Maryland, the law states that for purposes of the amended statutes and implementing regulations, a reference to an “intellectual disability” shall mean a condition previously referred to as “mental retardation” and a reference to “individuals with intellectual disabilities” shall be a reference to those previously referred to as “individuals with mental retardation.”   Based on the federal government’s change in terminology, watch for more states to pass similar measures.    

 

The EEOC this week sued a grocery store chain, claiming it had violated the ADA by firing an employee due to her 10 pound lifting restriction. The case is worth watching since it deals with an employer’s ability to change the essential functions of a job which results in terminating an individual who had been a qualified individual with a disability prior to the change, but was no longer so.  

According to the EEOC’s press release. Kimberly McMillan-Goodwin, a gas station clerk, had successfully performed her duties with the lifting restriction for years. When she returned from a leave, the employer “claimed it had changed the position so that she could not longer perform her job with her long-standing restriction, and that it had no other positions she could perform.” The employer then placed her on a one year leave of absence, and terminated her at the end of that period, according to the press release.  In its Complaint, the EEOC alleges that McMillan-Kimberly was a “qualified individual with a disability …and could perform the essential functions of the position from which she was removed.” Because theEEOC’s Complaint is pled so broadly, it is unclear whether the EEOC is alleging that McMillan-Kimberly could perform the essential functions of the changed position or that Woodman’s changed the job because of her lifting restriction, or some other theory.

We have visited this issue before.Recall once again the incontinent court reporter, hired as a control room specialist, whose job changed when the chief judge required all court reporters to rotate through all courtrooms.  The Seventh Circuit affirmed summary judgment for the employer, holding that “an employer is not required to maintain an existing position or structure that, for legitimate reasons, it no longer believes is appropriate” and that the plaintiff was not a qualified individual with a disability for the changed position.  The EEOC’s 1992 Technical Assistance Manual recognizes that jobs may change: “The ADA does not limit an employer’s ability to establish or change the content, nature, or functions of a job.”

But recall also our post on the Workplace Prof Blog, which opined that an employer’s ability to change essential functions is an ADA “loophole.” “After the ADAAA’s expansion of the definition of ‘disabled,’ employers will be looking for more ways to avoid the accommodation duty. This one seems tailor-made: change job descriptions and thus, essentially, eliminate disabled employees from any jobs they want—and they won’t be held liable for disability discrimination!,” the Prof said.

Neither the EEOC’s press release nor Complaint against Woodman’s indicate the reason Woodman’s changed McMillan-Goodwin’s job.    We will be watching this case for further judicial guidance on the “changed jobs” issue. But in the meantime, tread carefully when changing the essential functions of a disabled employee’s position which would result in that employee no longer being a qualified individual with a disability for the changed job.

 

Faced with continually increasing health insurance premiums, a growing number of employers have been implementing “workplace wellness” programs to motivate employees to lead healthier lifestyles. What legal challneges might an employer face when encouraging employers to lead healthier lives?

The Congressional Research Service (CRS), an agency within the Library of Congress which works exclusively for the United States Congress, issued a report recently entitled ‘Wellness Programs: Selected Legal Issues,’ which summarizes the legal “wellness” concerns under federal law.

The 16 page report discusses “wellness” issues under nine federal laws: the Patient Protection and Affordable Health Care Act, Health Insurance Portability and Accountability Act (HIPAA), the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act, the National Labor Relations Act, the Internal Revenue Code and Medicaid.  Because it summarizes the issues under each of these laws, the report is, in effect, a general checklist to evaluate a wellness program’s compliance with federal law. Many state laws must be considered as well.

One of the laws with the most analysis in the report is the ADA. The report notes numerous ADA issues that create compliance uncertainty, such as.

·         The ADA prohibits an employer from asking employees disability-related questions unless they are job-related and consistent with business necessity. The ADA excepts from this prohibition questions which are a part of a voluntary wellness program. The EEOC has said that the size of the incentive is a factor in determining whether a program is voluntary. In other words, the larger the incentive, the greater the risk that the program will be considered involuntary and that any disability-related inquiries asked as part of the program violate the ADA.

·         Section 501(c) of the ADA, often referred to as the insurance "safe harbor" provision, might shield from scrutiny  issues relating to the “voluntary wellness” standards in Title I of the ADA for wellness plan provisions connected to a group health insurance plan. Employers have been waiting for guidance on the application of the "safe harbor" to such plans. The report notes the existence of Section 501 but provides no analysis. 

·         The report notes that the primary goal of the ADA Amendments Act, which went into effect January 1, 2009, is to expand the scope of those who meet the definition of “disability.”  This amendment, according to the report, means “that obese individuals, those addicted to nicotine, or those with certain cholesterol or blood pressure measurements may be covered under the new language…ADA issues may be raised by certain wellness programs targeting these conditions.” Individuals with such conditions have generally not been found to be covered by the original ADA.

Because wellness programs have a positive goal and often include “rewards,”  there may be a tendency to overlook the fact that at least nine federal laws as well as state laws must be considered before implementation.  The much-anticipated ADA and GINA regulations as well as the uncertain ADA issues noted above illustrate that the law is unsettled and will be dynamic for years to come.

 

Since the Americans with Disabilities Act Amendments Act was not retroactive, ADA court decisions addressing facts that arose prior to  January 1, 2009, the ADAAA’s effective date, have continued to apply the original ADA, including the now-overruled Supreme Court decisions in the Sutton trilogy and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams.

Now, nearly 20 months after the ADAAA, cases based on facts occurring after January 1, 2009  have made their way through the EEOC administrative process and have reached court.  Perhaps the first ADAAA decision to reach the summary judgment stage illustrates the stark contrast between the original ADA and the ADAAA when it comes to the definition of disability.

In Hoffman v. Carefirst of Fort Wayne, Inc. d/b/a Advanced Healthcare, the plaintiff had Stage III renal cancer.  The defendant argued that the plaintiff did not have a disability under the ADA because there was no substantial limitation on a major life activity, noting that his cancer was in remission during the period that gave rise to the litigation, and he did not have any work restrictions, performed his regular job duties and did not miss any significant time from work.

The federal district court in Indiana rejected this argument summarily since the ADAAA states  that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” The court noted that renal cancer would have substantially limited a major life activity when it was active. The court also relied on the EEOC’s proposed regulations  to implement the ADAAA, which lists cancer as an impairment “that will consistently meet the definition of disability.” Under the original ADA, many courts, after conducting an individualized assessment to determine whether a plaintiff with cancer was substantially limited in a major life activity, had concluded that the plaintiff was not an individual with a disability.

Given the timing of the litigation process, expect a growing number of decisions arising under the ADAAA. Given the breadth of the ADAAA, expect also that many more plaintiffs will  meet the ADAAA’s definition of disability than met the original definition. Watch also for the EEOC’s  final regulations to implement Title 1 of the ADAAA. While the date for these regulations to be issued is uncertain, it has been more than a year since the EEOC published proposed regulations.