Articles Posted in Disability Discrimination

If you are reading this post, you already know about SARS-CoV-2, the virus which causes coronavirus disease 2019 (“COVID-19”), or, coronavirus.  There is no shortage of news to absorb and guidance to implement.  Federal, state (CTMANY), and local (Boston, Hartford, New Haven, New York) authorities offer directives and information.  News outlets including The Washington Post and The New York Times have continuously updated coronavirus sections, sans paywalls. Johns Hopkins University is mapping coronavirus’s spread, in near real time.  Here at Murtha Cullina, we are abiding by a common and useful refrain: “don’t panic, do prepare.”

So, how can you and your employees safely and effectively manage the myriad of challenges coronavirus has begun to present?  The CDC has issued Interim Guidance for Businesses and Employers, with common sense and effective steps employers may take, including:

  • Encourage sick employees to stay home, and implement flexible policies concerning sick leave and remote work.

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.

In recent years, employers have implemented health and fitness measures intended to curb the effects of chronic disease on their employees.  The implementation of these “wellness” programs generally results in lower health insurance premium costs, and a healthier workforce.  Nevertheless, the Equal Employment Opportunity Commission (EEOC) has challenged one of these programs as violating the Americans with Disabilities Act (ADA).

The EEOC has taken the position that although employers are permitted to implement wellness programs, employers cannot mandate that employees participate.  In EEOC v. Orion Energy Systems, No. 1:14-cv-0109 (E.D. Wis.), an employee objected to participating in the employer’s wellness program, because, among other things, she was concerned about the confidentiality of medical information.

Following the employee’s refusal to participate in the program, the employer required that she pay the full premium cost of her health insurance, plus a $50 monthly penalty.  Ultimately, she was terminated, and  has claimed that her termination was based upon her opposition to the wellness program.

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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The U.S. Equal Employment Opportunity Commission (EEOC) has scheduled a meeting for May 8, 2013 at its main headquarters in Washington, D.C., to address whether employer wellness programs may implicate, among other things, the confidentiality and permissible inquiry provisions of the Americans with Disabilities Act (ADA), the Genetic Nondiscrimination Act (GENDA), and other statutes enforced by the EEOC.

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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The Americans with Disabilities Act (“ADA”) requires that employers consider possible reasonable accommodations that would permit disabled employees to perform the essential functions of their jobs. According to to the ADA, a reasonable accommodation could include a reassignment to a vacant position. In Equal Employment Opportunity Commission v. United Airlines, Inc. (No. 11-1774), the United States Court of Appeals for the Seventh Circuit considered United Airlines’ guidelines for transferring employees in light of the ADA’s requirements. United Airlines’ guidelines specified that its employee transfer process was competitive, so that an employee in need of accommodation would not be automatically assigned to a vacant position, but would be given preference over similarly situated applicants. The Equal Employment Opportunity Commission (“EEOC”) challenged the policy under the ADA. Although the district court ruled in United Airlines’ favor, the Seventh Circuit reversed and held that the ADA does, in fact, mandate that an employer reassign employees with disabilities to vacant positions for which they are qualified, provided that the such accommodations would be ordinarily reasonable and not present an undue hardship to that employer.

On August 26, 2011, the United States Equal Employment Opportunity Commission (“EEOC”) filed a civil action against Ford Motor Company on behalf of a former employee, alleging that the company failed to provide a reasonable accommodation to the employee and ultimately fired her because of her disability.
The company maintained a telecommuting program for its employees. When the employee, Jane Harris, attempted to avail herself of the program as a result of her gastro-intestinal condition, the company refused her request. Thereafter, the company began criticizing her performance, placed her on a performance plan, and fired her after she complained that the company had failed to accommodate her medical condition.

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Today, Governor David Patterson signed into law, the New York Domestic Workers Bill of Rights, which reflects the first sweeping domestic workers’ rights legislation in the nation.
Among other things, the New York law provides for overtime pay to domestic workers, and protection against workplace discrimination and harassment based upon race, gender, sexual orientation, national origin, disability, marital status and domestic victim status. The legislation specifically addresses sexual harassment, which is cited as a major problem for domestic workers in New York.

On January 6, 2010, the Equal Employment Opportunity Commission (“EEOC”) released data concerning charges of discrimination filed with the agency in FY2009. The EEOC resolved a record number of charges alleging harassment and violations of Title VII of the Civil Rights Act. FY2009 saw the second highest number of charge filings nationwide, 93,277 –just about 2,000 filings less than the record high set for FY2008.

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