Articles Posted in Disability Discrimination

Last month, we wrote that the Equal Employment Opportunity Commission (EEOC) had challenged an employer wellness program that was implemented by Orion Energy Systems.  In that case, the EEOC alleged that the employer had violated the Americans with Disabilities Act (ADA) by requiring employees to submit to medical examinations that were not job related or consistent with business necessity.  Several days ago, the EEOC challenged Flambeau, Inc.’s wellness program as violating the ADA’s prohibition against mandatory medical examinations.  According to the EEOC the wellness program required that employees submit to biometric testing and a health risk assessment.  The consequences for failing to agree to these exams were, among other things, the possible cancellation of medical insurance coverage and other potential disciplinary action.

The EEOC alleged in this lawsuit, EEOC v. Flambeau, Inc., Civil Action No. 3:13-cv-00638, which was filed in United States District Court for the Western District of Wisconsin,  that when an employee, Dale Arnold, failed to complete the biometric testing and health risk assessment, the employer cancelled his health insurance coverage.  Although the EEOC does not disapprove of wellness programs, it asserts that the programs must be voluntary in all respects.  Otherwise, they constitute a disability-related inquiry and must, therefore, be related to the job in question and consistent with business necessity.

Flambeau disagreed with the EEOC’s characterization of its program and claimed that it had “adopted a health program that allowed employees to assess their health status and participate in programs to improve their health if they so chose.”  Yet, the fact that employees faced repercussions for refusing to undergo the testing in the first place renders the legality of the program questionable under the ADA. The inquiry, and not participating in any health programs proposed as a result of the inquiry, is what may have violated the ADA.

The ADA Amendments Act of 2008 (“ADAAA”) amended the Americans with Disabilities Act to expand the definition of “disability,” which had been limited over the years by court decisions. In enacting the ADAAA, Congress specifically rejected United States Supreme Court interpretations of the meaning of the term “disability.” The result of the ADAAA was to make it easier for individuals with impairments to demonstrate that they satisfy the definition of “disability.”
On May 15, 2013, the Equal Employment Opportunity Commission (“EEOC”) revised its guidance as it relates to several types of impairments, namely, cancer, disability, epilepsy, and intellectual disabilities. As stated by the EEOC Chair, Jacqueline A. Berrien, “Nearly 34 million Americans have been diagnosed with cancer, diabetes, or epilepsy, and more than 2 million have an intellectual disability. Many of them are looking for jobs or are already in the workplace. While there is a considerable amount of general information available about the ADA, the EEOC often is asked questions about how the ADA applies to these conditions.”

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Last week, on March 4, 2013, the United States Court of Appeals for the Second Circuit (which covers New York, Connecticut and Vermont), reaffirmed the importance for an employer to conduct a fact-specific analysis in considering requests for reasonable accommodation under the Americans with Disabilities Act (ADA).
In McMillan v. City of New York, it was undisputed that McMillan’s disability necessitated treatment that prevented him from arriving to work at a consistent time each day. The Second Circuit noted that although in most contexts, timely arrival at work is considered an essential function of the job, which could render futile any attempts to reasonably accommodate the situation, it was not at all entirely clear whether timely arrival at work was an essential function of McMillan’s job. Under McMillan’s circumstances, he could offset the time missed with additional work hours in order to complete the essential functions of his job.
Ultimately, McMillan sued the City under the ADA, the New York State Human Rights Law, and the New York City Human Rights Law, alleging among other things that because the office remained open until 10:00pm, and he often worked past 7:00pm, he would still be able to arrive late and work the requisite number of full time hours per week.

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