EEOC Issues New Enforcement Guidance on Pregnancy Discrimination

The Equal Employment Opportunity Commission (EEOC) recently released updated enforcement guidance on pregnancy discrimination to help employers comply with both the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA) when addressing pregnancy-related issues.

The PDA states that an employer may not discriminate against an employee or applicant for employment on the basis of pregnancy, childbirth, or related medical condition and that women impacted by pregnancy, childbirth, or related medical conditions must be treated the same as other persons similar in their ability or inability to work. The new EEOC guidance provides that the PDA not only covers a current pregnancy but also covers discrimination based on a past pregnancy or future pregnancy. The guidance also states that employers must provide light duty work for pregnant employees if the employer offers light duty assignments to employees with similar work restrictions as those who are not pregnant.

As you can see by looking at the guidance, it is quite lengthy. Here are some of the EEOC's key points all employers should know:

1) Despite the Supreme Court's decision in Burwell v. Hobby Lobby, the EEOC states that employers can violate Title VII if they provide health insurance that excludes coverage of prescription contraceptives, whether the contraceptives are prescribed for birth control or for medical purposes. The EEOC states that in order to comply with the law, "an employer's health insurance plan must cover prescription contraceptives on the same basis as prescription drugs, devices, and services that are used to prevent the occurrence of medical conditions other than pregnancy. For example, if an employer's health insurance plan covers preventive care for medical conditions other than pregnancy, such as vaccinations, physical examinations, or prescription drugs to prevent high blood pressure or to lower cholesterol levels, then prescription contraceptives also must be covered." My colleague, Eric Athey, examined this issue in his review of the Hobby Lobby decision. While this issue is yet to be examined by a court, employers should think carefully before excluding coverage for contraception from their insurance plans.

2) Neither an employee nor an applicant can be subject to discrimination because of a past pregnancy, childbirth, or related medical condition. This means that employees must continue to treat new mothers with caution when recently pregnant employees return from maternity leave. An adverse employment decision in close proximity to an employee's return to work could lead to a discrimination claim.

3) If an employer provides light duty work for employees who are not pregnant but who are similar in their ability or inability to work, the employer must also provide less physically demanding light duty work for pregnant employees.

4) While leave related to pregnancy, childbirth or related medical conditions can be limited to only females impacted by those conditions, if an employer extends leave to new mothers beyond the period of recuperation from childbirth (and beyond the amount of leave granted by the FMLA), it cannot lawfully refuse to provide an equivalent amount of leave to new fathers for the same purpose—this, according to the EEOC, means that if employers provide additional leave to mothers to bond with children, they must provide the same benefit to fathers. 

5) Pregnancy alone is not a disability under the ADA but pregnancy-related impairments are disabilities if they substantially limit one or more major life activities or did so in the past. Therefore, if a pregnant woman experiences difficulty walking or pregnancy-related carpel tunnel syndrome, employers may need to consider providing the pregnant employee with a reasonable accommodation unless doing so would create an undue hardship. The EEOC suggests that some reasonable accommodations for pregnant employees may include the redistribution of marginal, non-essential functions, modification of work schedules, and modifying workplace policies to allow pregnant workers to take more frequent breaks.

Note that much of what the EEOC states is just guidance. While the guidance is instructive and employers should look to it when making decisions, court decisions over the next few years interpreting laws governing pregnancy discrimination could deem this guidance moot.

Can Telecommuting Be a Reasonable Accommodation under the ADA?

This post was contributed by Tony D. Dick, an Attorney in McNees Wallace & Nurick's Labor & Employment Practice Group in Columbus, Ohio.

Last month, in EEOC v. Ford Motor Company, the Sixth Circuit Court of Appeals (covering Tennessee, Kentucky, Ohio, and Michigan) held for the first time that employers may be required to permit employees to telecommute as a reasonable accommodation for a disability.  While the decision is not binding on employers in the Third Circuit (covering Pennsylvania, New Jersey, and Delaware), the case is significant for employers operating in the Sixth Circuit’s jurisdiction and beyond as it clearly signals a willingness to expand the traditional concept of what constitutes an employer’s “workplace” as modern technology continues to evolve.

Case Background

The plaintiff in the case, Jane Harris, worked as a “resale buyer” for Ford which essentially required her to act as an intermediary between steel suppliers and third-party companies that produced steel parts for Ford. According to Ford, while a significant amount of Ms. Harris’s work time involved communicating with steel suppliers and parts manufacturers over the phone and inputting information in Ford’s computer system, regular face-to-face interaction with other members of the resale team and steel suppliers was a necessary component of the position as well.

Unfortunately, the plaintiff suffered from Irritable Bowel Syndrome (“IBS”) which routinely caused her to experience fecal incontinence and have accidents at work. As a result of her IBS, the plaintiff eventually requested that she be permitted to work from home up to four days a week as an accommodation for her condition. Ford management subsequently determined that Ms. Harris’s request was not reasonable in light of the fact that her position regularly required in-person contact with her fellow employees and Ford clients and denied her request. However, Ford proposed several alternative accommodations, including moving her desk closer to the restrooms and transferring her to another job within the company that would be more suitable for telecommuting. Ms. Harris rejected both of these proposed alternative accommodations and instead filed a charge of discrimination with the EEOC. The EEOC eventually initiated a lawsuit on Ms. Harris’s behalf raising claims of disability discrimination and retaliation in violation of the Americans with Disabilities Act.

Words of Caution for Employers

In reversing the lower court’s grant of summary judgment in favor of Ford, the Sixth Circuit determined that the EEOC presented sufficient evidence that would allow a jury to conclude that Ms. Harris could perform the essential functions of her job from home. Although the Court recognized that regular attendance at the employer’s physical workplace is undoubtedly an essential function of most jobs, due to advances in technology, “attendance” can no longer be assumed to mean an employee’s actual presence at the physical workplace. As the Court noted, “[t]he world has changed since the foundational [federal appeals court] opinions regarding physical presence in the workplace were issued: teleconferencing technologies that most people could not have conceived of in the 1990s are now commonplace. Therefore, we are not persuaded that positions that require a great deal of teamwork are inherently unsuitable to telecommuting arrangements.” The Court went on to hold:

"When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer's brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer's physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the 'workplace' is anywhere that an employee can perform her job duties."

Takeaways

As the Sixth Circuit’s opinion makes clear, it is no longer the case that jobs suitable for telecommuting are extraordinary or unusual. As a result, employers should be extra cautious when an employee requests telecommuting as a reasonable accommodation and not dismiss the request out of hand. Rather, an employer should use the interactive process to discuss and explore with the employee the aspects of the job that the employer believes could not be performed satisfactorily or would not be workable in a telecommuting context. And, carefully record the employee’s agreement or disagreement with these issues. If the request is rejected, the employer should clearly spell out in writing which specific duties of the job make telecommuting impractical. In addition, employers may want to re-examine their job descriptions to ensure they clearly and accurately articulate how job duties are best carried out.

New Regulations Governing Affirmative Action Requirements for Individuals with Disabilities and Protected Veterans Go Into Effect TODAY!

Beginning today, March 24, 2014, federal contractors and subcontractors have a number of new responsibilities. Contractors already have the existing obligation to collect demographic data regarding race and gender and take affirmative action to recruit, hire, and retain qualified minorities, women, individuals with disabilities, and protected veterans. Now contractors must take additional steps to recruit and hire individuals with disabilities and protected veterans, including the collection of data related to the status of applicants and employees as protected veterans and individuals with disabilities.

Specifically, federal contractors and subcontractors are required to:
• Invite applicants and employees to self-identify as individuals with disabilities or protected veterans;
• Track and analyze data related to applicants and employees who are individuals with disabilities and/or protected veterans;
• Notify subcontractors and vendors (and labor unions, if applicable) of their Affirmative Action requirements;
• Conduct written effectiveness evaluations to determine whether efforts to reach out to individuals with disabilities and protected veterans have been successful;
• Establish a 7% utilization goal for individuals with disabilities to measure the efficacy of affirmative action steps;
• Establish a hiring benchmark for protected veterans or adopt the 7.2% national benchmark to measure the efficacy of affirmative action steps; and
• much more!

Additionally, for the first time ever, construction contractors will be required to have written affirmative action plans for individuals with disabilities and protected veterans. While some in the construction industry were hopeful that the new regulations impacting individuals with disabilities would not apply to them, on Friday, the United States District Court for the District of Columbia rejected the Associated Builders and Contractors, Inc. challenge to the validity of the regulations. The Court concluded that the new rules are valid and the Office of Federal Contract Compliance Programs (OFCCP) has broad authority to interpret what it means to "take affirmative action."

Between these new rules and President Obama's Executive Order to raise the minimum wage for employees of federal contractors, federal contractors are facing an onslaught of new regulatory requirements.

Stay tuned to the blog for more updates on issues that impact federal contractors, subcontractors, and all employers. Please feel free to contact me, Schaun Henry or any other McNees Labor & Employment attorney if you have any questions about how these new regulations may impact your business.

Last Call! Third Circuit Court of Appeals Rules That Employer Can Terminate Employee For Violating Strict No Alcohol Return to Work Agreement

This post was contributed by Joseph S. Sileo, an Attorney in McNees Wallace & Nurick's Labor & Employment Practice Group in Scranton, Pennsylvania.

The Third Circuit Court of Appeals recently issued a decision holding that an employer's termination of an employee for violating a very broad and restrictive return to work agreement (RWA), which prohibited the employee from all drug and alcohol use during both work and personal time, was lawful.

In that case, Ostrowski v. Con-Way Freight, Inc., the employer maintained strict drug and alcohol screening policies, in compliance with federal motor carrier safety regulations issued by the Department of Labor, as well as an Employee Assistance Program. The employee, a Driver Sales Representative, requested a leave of absence under the Family and Medical Leave Act (FMLA) in order to voluntarily participate in a treatment program for alcoholism, which the employer approved. Following completion of his treatment program, the employee returned to work subject to a strict RWA by which he agreed to remain "free of drugs and alcohol (on company time as well as off company time) for the duration of [his] employment." Within only a month of his return to work, the employee relapsed and resumed drinking alcohol, leading him to once again admit himself into a treatment program. At that time, the employer terminated the employee for violating the RWA.

The employee filed a lawsuit in federal court claiming that his termination violated the Americans with Disabilities Act (ADA), the Pennsylvania Human Relations Act (PHRA) and the FMLA. More specifically, the employee alleged claims of disability discrimination, retaliation and failure to accommodate his disability under the ADA and PHRA and claims of retaliation, interference and unlawful denial of FMLA-protected leave. The District Court granted summary judgment in favor of the employer on all claims; the employee then appealed to the Third Circuit Court of Appeals.

In support of his ADA and PHRA claims, the employee argued that his violation of the RWA could not serve as a legitimate basis for termination because the RWA itself ran afoul of the ADA's prohibition against applying employment qualification standards, tests or other selection criteria that screen out or tend to screen out an individual with a disability. In rejecting this argument, the Third Circuit agreed with court decisions in other jurisdictions, concluding that a return-to-work agreement which imposes employment conditions different from those applied to other employees does not necessarily violate the ADA. While acknowledging that the RWA did impose standards different than those applied to the employee's co-workers, the court observed a nuanced but critical distinction that the difference in treatment resulted from the terms of the agreement rather than disability discrimination.

In addition, the court noted that the employee failed to demonstrate how the RWA subjected him to discrimination based on his alleged disability (alcoholism) as opposed to regulating his conduct (drinking alcohol). In this regard, the court reasoned that the RWA did not restrict or preclude individuals who may suffer from alcoholism from working for the employer, but simply prohibited an employee subject to its terms from drinking alcohol.

The court concluded, therefore, that because the RWA was not invalid under the ADA, the employee's violation of its terms was a legitimate, non-discriminatory reason for the employer to terminate his employment. Moreover, because the employee failed to produce any evidence that his termination based on violation of the RWA was a pretext for disability discrimination, summary judgment dismissal of his ADA and PHRA claims was warranted.

The court also rejected the employee's FMLA claims for similar reasons. More specifically, the court concluded that there was no evidence to suggest that the employee was terminated for requesting medical leave or for any reason other than his violation of the RWA. The court noted that there was no evidence to suggest that the employee would not have been terminated for violating the RWA if he had not requested FMLA leave. Moreover, the court rejected the employee's argument that the RWA's strict no alcohol requirement violated the FMLA because it had the effect of chilling and discouraging his right to request benefits and protections under the FMLA. The Court noted that the employer requested the RWA for a legitimate business reason, namely, pursuant to its obligations under DOT regulations to maintain strict drug and alcohol policies for covered employees. In our opinion, an employer that is not directly subject to DOT regulations presumably would also have the ability to impose a reasonable return to work agreement following an employee's leave for alcohol or drug treatment, particularly if there are clear and established drug and alcohol policies in place prior to requiring such an agreement.

This decision was issued by the Third Circuit as a non-precedential (non-binding) decision. Nonetheless, the decision provides valuable insight and serves as a good indicator of how the Third Court and district courts within our jurisdiction will rule in future cases on this same issue. This case illustrates that carefully drafted and tailored return to work agreements can be used by employers to manage problematic employee conduct. Such conduct, if left unattended, can turn into lengthy and recurring ordeals that become costly, frustrating and drain valuable company resources. A suitable return to work agreement may be a very good option in certain cases. Beware, however, that not all return to work agreements are created equal. It is advisable, therefore, that counsel should be consulted in advance to ensure that any return to work agreement under consideration is properly drafted to protect the employer's interests and legally compliant to the fullest extent possible.
 

U.S. Supreme Court Upholds ERISA Plans' Modified Statute of Limitations

This post was contributed by Tony D. Dick, Esq., an attorney in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Columbus, Ohio.

The U.S. Supreme Court issued a rare unanimous decision earlier this week finding that employee benefit plans can set reasonable time limitations on when a plan participant may bring a lawsuit seeking plan benefits – even when the time limitation is shorter than what would otherwise be permitted under the Employee Retirement Income Security Act of 1974 (ERISA) and analogous state statutes.

In Heimeshoff v. Hartford Life & Accident Ins. Co., Case No. 12-729 (Dec. 16, 2013), Petitioner Julie Heimeshoff, a long-term Wal-Mart executive, began to suffer from a multitude of ailments caused by fibromyalgia. As a result, in August 2005, she filed a claim for disability benefits with the plan administrator for Wal-Mart’s disability plan - Hartford Life & Accident Insurance Co. On December 8, 2005, after considering the medical evidence offered by Ms. Heimeshoff, Hartford denied her claim for failure to provide sufficient proof of loss.

Ms. Heimeshoff subsequently filed an internal appeal of the denial of her claim with Hartford as she was required to do under the plan. On November 25, 2007, Hartford ultimately upheld its decision to deny disability benefits to Ms. Heimeshoff and informed her that she had exhausted her administrative remedies. On November 18, 2010, Ms. Heimeshoff filed suit in federal court seeking judicial review of the denial of her claim pursuant to ERISA Section 502(a)(1)(B). Hartford moved to dismiss the case arguing that, pursuant to the terms of the relevant disability plan, Ms. Heimeshoff was required to file suit within three years from the time proof of loss was due under the plan. In this case, that would have been no later than December 8, 2008. Ms. Heimeshoff argued in response that despite the plan language modifying the time to bring suit, the three-year limitations period should run from November 25, 2007 – the date on which the plan upheld its final denial of her claim for benefits.

The Court determined that although a statute of limitations typically begins to run when a claim actually accrues (usually after the final denial of benefits by the plan administrator in the ERISA context), parties are perfectly within their rights to modify the applicable statute of limitations so long as the modified time limitation is reasonable. Justice Thomas, writing for the Court, concluded that “in the absence of a controlling statute to the contrary, a provision in a contract may validly limit, between the parties, the time for bringing an action on such contract to a period less than that prescribed in the general statute of limitations, provided that the shorter period itself is a reasonable period.”

Obviously, the Supreme Court’s decision is a major victory for ERISA plans and their employer sponsors. In light of the decision, plan sponsors should give consideration to amending plan documents to include a statute of limitations provision similar to the one in Heimeshoff. Beyond the ERISA context, however, the Court’s decision may serve as a clear endorsement of suit limitation provisions in general and falls in line with similar decisions from various lower courts. For example, just last year, the Sixth Circuit Court of Appeals held in Oswald v. BAE Industries, Inc., 483 Fed.Appx. 30 (6th Cir. 2012) that private employers may enter into agreements with their employees to shorten the applicable statute of limitations for employment claims to as little as six months. If you have not done so already, now might be a good time to engage counsel to determine whether such suit limitation provisions make sense for your business.
 


 

DOL TO COMPEL FEDERAL CONTRACTORS TO HIRE MORE VETERANS AND DISABLED INDIVIDUALS

This post was contributed by Tony D. Dick, Esq., an attorney in McNees Wallace & Nurick LLC's Labor and Employment Practice Group in Columbus, Ohio.

As expected, new U.S. Department of Labor Secretary Thomas Perez has wasted little time implementing a number of agenda items in the few short weeks since his Senate confirmation. Most recently, Secretary Perez announced two new rules that amend longstanding regulations under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) and Section 503 of the Rehabilitation Act, which deal with federal contractors’ and subcontractor’s affirmative action and nondiscrimination obligations toward protected veterans and individuals with disabilities. Among other things, these new rules establish specific hiring metrics, data collection practices, and record keeping requirements that federal contractors must implement for veterans and disabled individuals seeking employment.

Below are some highlights of the final rules:

  • Utilization Goal for Individuals with Disabilities – The final rule under the Rehabilitation Act establishes, with some exceptions, a 7% hiring goal for qualified individuals with disabilities. While the goal is aspirational, contractors will be required to conduct an annual utilization analysis of individuals with disabilities within the organization, assess problem areas, and establish specific programs to address any identified problems.
  • Hiring Benchmarks for Protected Veterans – Under the final rule amending VEVRAA, federal contractors must establish annual hiring benchmarks for protected veterans utilizing one of two methods. Contractors can either choose to set a benchmark that mirrors the national percentage of veterans in the civilian labor force or they may establish their own benchmarks using certain data from the Bureau of Labor Statistics and Veterans’ Employment and Training Service/Employment and Training Administration.
  • Job Listings Requirements for Protected Veterans – The final rule under VEVRAA also clarifies that when listing job openings, contractors must provide the information in a manner and format permitted by the appropriate state or local job services, so that it can be easily disseminated to veterans seeking jobs.
  • Data Collection – Under both rules, contractors must now document and annually update several quantitative comparisons concerning the number of veterans and individuals with disabilities who apply for jobs and the number of veterans and individuals with disabilities who are actually hired. Such data must be maintained for three years.
  • Invitation to Self-Identify – Both rules also require contractors to invite applicants to self-identify as a veteran and/or an individual with a disability at both the pre-offer and post-offer phases of the application process.
  • Records Access – The new rules also clarify that contractors must permit officials from the Office of Federal Contract Compliance Programs to review documents to establish compliance with the rules.

The regulations are expected to be published in the Federal Register early next month and will go into effect 180 days later. Contractors with affirmative action plans already in place on the effective date of the new rules may keep those plans until the end of their plan year. Thus, federal contractors and subcontractors that submit affirmative action plans at the beginning of each calendar year will not be required to submit affirmative action plan documents based on these new rules until the beginning of 2015. However, contractors must begin following the data collection, record keeping, and other requirements of the new rules immediately after the rules take effect. Accordingly, if you are a federal contractor or subcontractor, now is the time to begin to revising your policies, procedures and relevant forms to conform with the Department of Labor’s new rules so that you are not caught flat-footed when the rules go into effect.

DOL Issues Guidance on Definition of "Son or Daughter" under FMLA

This post was contributed by Tony D. Dick, Esq., an Associate in McNees Wallace & Nurick LLC's Labor and Employment Practice Group in Columbus, Ohio.

The Department of Labor (DOL) recently issued additional guidance to employers regarding the definition of “son or daughter” under the Family Medical Leave Act (FMLA) as it relates to an adult child. Under the FMLA, an eligible employee may take leave to care for a son or daughter who is 18 years old or older if the following four conditions are met: (1) the adult child has a disability as defined by the Americans with Disabilities Act (ADA); (2) he or she is incapable of self-care as a result of the disability; (3) he or she has a serious health condition; and (4) the adult child is in need of care due to the serious health condition.

A lingering question has been whether the onset of the child’s disability had to occur prior to the child turning 18 in order for the adult child’s parent to be eligible for FMLA leave. DOL has now clarified that it is irrelevant whether the onset of the disabling condition occurred before or after the child turned 18. DOL’s interpretation falls in line with the majority of courts that have decided the issue.

In addition, in light of the broader definition of “disability” under the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), DOL has offered further guidance on the impact of those changes on the FMLA. Among other things, the ADAAA broadened the definition of “major life activities” and expanded the definition of “disability” to include episodic conditions that periodically flair up and substantially limit a major life activity. Since the FMLA’s inception, DOL has utilized the definition of disability under the ADA in defining a “son or daughter” who has reached the age of 18. DOL has now explicitly taken the position that the expanded definition of disability under the ADAAA should apply to the definition of “son or daughter” under the FMLA.  It remains to be seen whether courts will adopt DOL’s position.

Finally, DOL has issued guidance concerning FMLA leave used to care for an adult child who has become disabled during military service. Under the FMLA’s military caregiver provision, a parent of a covered service member who sustained a serious injury or illness is entitled to up to 26 weeks of FMLA leave in a single 12-month period. Acknowledging that the servicemember’s injury or illness could have an impact that lasts beyond the single 12-month period covered by the military caregiver leave entitlement, DOL clarified that the servicemember’s parent may take FMLA leave to care for a son or daughter in subsequent years because of the adult child’s serious health condition. 

DOL’s recent guidance is just the latest example of it construing the FMLA generously in favor of employees. Employers should train managers and HR personnel who handle leave requests on these new changes to ensure compliance with the law.

The Internet - The Next Frontier for the ADA: Will Your Website Comply?

Members of McNees Wallace & Nurick LLC's Litigation Group published a Litigation Newsletter that contains an article that may be of interest to readers of our blog. The article, "The Internet – The Next Frontier for the ADA: Will Your Website Comply?" discusses a recent notice issued by the Department of Justice, which indicates that the Department is considering adopting accessibility guidelines for websites under the Americans with Disabilities Act.

Please click here to view the Litigation Newsletter.
 

Employment Law implications of Obesity and BMI after the ADA Amendments Act

The ADA Amendments Act re-wrote the definition of disability so that it will likely include obesity-related health conditions and perhaps obesity itself as a protected disability. Before the ADA Amendments, being overweight and even obese was not generally considered a "disability". For example in EEOC v. Watkins Motor Lines, Inc., a court determined that non-physiological morbid obesity was not a protected disability.

The EEOC is considering regulations regarding the equal employment provisions of the ADAAA.  In December 2008, the EEOC commissioners deadlocked along party lines on whether to approve former Chair Naomi Earp’s proposed regulations. According to the EEOC’s agenda, a notice of proposed rulemaking will be issued by August of this year.  I predict that obesity will become a protected disability requiring employers to reasonably accommodate the condition.  I also expect that the correlation between BMI and obesity will be challenged by agruing that disqualifying an employee based on a high BMI consistitutes "regarded as" disability discrimination.

The ADA changes have important implications for businesses including employment discrimination claims, health plan design, and wellness program administration. There are several issues that merit discussion when examining obesity such as following. 

What is Body Mass Index (BMI)? BMI has become the unofficial scientific measure for assessing obesity. BMI is a function of height and weight (BMI calculator). The Center for Disease Control classifies a person who has a BMI of less than 18.5 as underweight; normal is 18.5-24.9; overweight is 25-29.9; obese is over 30; and extremely obese is over 40.

What is the BMI analysis telling us about our weight? A Report by the Trust for America's Health recently disclosed statistics about obesity trends. In the Report, Pennsylvania had the 24th highest rate of adult obesity with 25.7 percent of its population having a BMI over 30. The Report correlated obesity figures with other factors like Diabetes and Hypertension rates. It also noted levels of admitted physical activity (or inactivity). Twenty-Four percent of Pennsylvanians admit no physical activity.

How good is BMI as a measure of obesity? Martica Heaner points out the limitations of BMI in her posts BMI Blues and Is Body Mass Index a Bad Measure?:

The BMI works well for research purposes, but doesn’t necessarily translate precisely to the individual. Unfortunately, it tends to convey that people that exercise regularly, for example, are overweight, when they are not actually overfat. A fit person tends to have more muscle, so their body weight is a reflection of body fat as well as muscle and other lean tissue.

Since the problem with being overfat is that health risks are increased, a BMI in the overweight range is probably not a negative indicator for a fit person. Regular exercise, low body fat and increased muscle mass are all factors that tend to outweigh any health risks suggested by a higher BMI.

Is there correlation between high BMI and bad health? According to the CDC, the BMI ranges were established based on the health consequences associated with obesity as determined by different BMIs. Some, like Paul Campos in his book, The Obesity Myth, challenge this conclusion. However, the correlation between high BMI and bad health is quickly becoming an assumption.

Other than being incorrectly labeled "overweight" or "obese", why should we care whether BMI is a accurate health status predictor? BMI is fast becoming the legal standard for determining whether someone is "obese" and therefore a "health risk". Those with high BMIs can face increase cost and eligibility barriers for certain employee benefits.

Individual insurance policies for life, disability and medical insurance almost universally use underwriting procedures that take into account BMI as a basis for determining insurability and premium. A survey by the Texas Office of Public Insurance Counsel found that insurance company individual health plan underwriting guidelines used BMI as a basis to deny coverage, charge a higher premium, and offer less coverage. The California Insurance Commission has made comments alerting consumers about BMI as a basis for insurance denial.

Some group health plans are community rated and not subject to medical underwriting. These plans calculate premium based on the expected claims of the community not the individual employer group. Other group health insurance programs can be subject to medical underwriting in which BMI analysis and other factors will be used to price the coverage for the group. An employer with a compliment of employees with potential for high claims (including high BMI) will face higher premiums or denial. Likewise, self-insured medical plans that utilize stop loss coverage may undergo medical underwriting where BMI will be factored into the rate for reinsurance.

Group health plan wellness program incentives may be keyed to BMI targets for premium discounts and other incentives. The availability of incentives to those with high BMI is subject to limitations including situations when it is "unreasonably difficult" or "medically inadvisable" for a participant to attempt to achieve the BMI standard.

ADA Amendments may Open the Door for Nicotine Addiction Claims

Today’s smokers [are] more addicted to nicotine according to a new study, which notes that 73% of those trying to quit are “highly dependent”. The Center for Disease Control and Prevention estimates that 20.2% of Americans are smokers. Pennsylvania has a slightly higher rate of smoking at 21.5 % with 51.9% attempting to quit. Many of these smokers are also employees.

Smokers are feeling the heat in the workplace through smoke-free workplace policies. Jon Hyman at the Ohio Employer’s Law Blog has a post asking Are there legal risks with smoking bans?  He notes that pushing back on these employer initiatives are  29 states which have enacted laws protecting employees who smoke from discrimination.

Pennsylvania has no law protecting smokers from discrimination. To the contrary, Pennsylvania’s new Clean Indoor Air Act mandates smoke-free workplaces and precludes employees from smoking indoors. However, the law allows employers to prohibit smoking anywhere on company property; it does not prevent the continuation of outdoor smoking areas. Employers are left with the sometimes delicate task of crafting a policy concerning outdoor smoking and monitoring the break schedules of employees who wish to smoke. In addition, many wellness programs have targeted smoking with cessation programs coupled with both financial incentives and penalties.

The Americans with Disabilities Act was recently amended to expand the definition of “disability” to the point that it may encompass nicotine addiction. The few ADA cases on “smoking” as a disability have not recognized a claim based on the pre-amendment definition of disability. However, the rationale for denying disability status to “smoking” or “nicotine addiction” is squarely predicated on the remedial nature of the condition exempting it from coverage of the ADA as expounded in Sutton v. United Airlines, Inc. The ADA Amendments expressly abrogated Sutton.  In the only published case of which I am aware, the court in Brashear v. Simms set forth the following rationale in dismissing a smoker’s ADA claim:

…[E]ven assuming that the ADA fully applies in this case, common sense compels the conclusion that smoking, whether denominated as “nicotine addiction” or not, is not a “disability” within the meaning of the ADA. Congress could not possibly have intended the absurd result of including smoking within the definition of “disability,” which would render somewhere between 25% and 30% of the American public disabled under federal law because they smoke. In any event, both smoking and “nicotine addiction” are readily remediable, either by quitting smoking outright through an act of willpower (albeit easier for some than others), or by the use of such items as nicotine patches or nicotine chewing gum. If the smokers' nicotine addiction is thus remediable, neither such addiction nor smoking itself qualifies as a disability within the coverage of the ADA, under well-settled Supreme Court precedent.

Pennsylvania employers can and must adopt policies prohibiting smoking in the workplace. However, employers may well be required to reasonably accommodate nicotine-addicted employees much as they would need to do so with other addictions, like drugs and alcohol. The scope of such accommodations must be explored. Section G of the EEOC’s Guidance on Applying Performance Standards to Employees with Disabilities may prove helpful.

 

UPDATE:  How will this new wrinkle weigh in the mix: Under Obama will smoking become  "cool" again?

ADA Amendments expand Disability Coverage

President Bush will sign legislation amending the Americans with Disabilities Act, which overwhelmingly passed through Congress. The ADA Amendments Act is designed to convey Congressional intent that “the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”

The goal of expanding the coverage of the ADA is achieved by changing the definition of “disability” to:

  • Prohibit the consideration of measures that reduce or mitigate the impact of impairment—such as medication, prosthetics and assistive technology—in determining whether an individual has a disability under the law.
  • Cover workers whose employers discriminate against them based on a perception that the worker is impaired, regardless of whether the worker has a disability.
  • Clarify that the law provides broad coverage to protect anyone who faces discrimination on the basis of a disability.

Congress expressly reversed several Supreme Court decisions that restricted the scope of the ADA. Congress rejected the standard that ameliorative effects of mitigating measures must be considered in determining whether a person is disabled found in Sutton v. United Air Lines, Inc. Congress also rebuked the Court in its restrictive interpretation of “disability” by rejecting the terms “substantially limits ” and “significantly restricted” because the terms as outlined in Toyota Motor Mfg, Kentucky, Inc. v. Williams are too narrow.

 

The ADA amendments will  refocus disability discrimination lawsuits downplaying the examination of whether an employee meets the definition of disability.  Daniel Schwartz of the Connecticut Employment Law Blog discusses the practical impacts.

EEOC Guidance Addresses Employee Performance and Conduct Issues Under the ADA

On September 3, 2008, the EEOC issued "a comprehensive question-and-answer guide addressing how the Americans with Disabilities Act (ADA) applies to a wide variety of performance and conduct issues."  The guidance contains a brief introductory section that includes some general legal requirements and definitions and then sets forth 30 questions and answers on various ADA-related subjects, including performance, conduct, and attendance issues, dress codes, drug and alcohol use, and confidentiality. Included within the EEOC's answers are numerous points of generally applicable "practical guidance."

The EEOC's new guide does not have the legal effect of federal regulations or change the ADA's existing accommodation and discrimination requirements. It does, however, contain a useful resource on an often difficult and complicated issue, namely what to do when an employee's performance or conduct problems may be, or are, caused by a disability. Among the guidance provided by the EEOC are the following:

 

Job Performance

 

  • An employee with a disability may be required to meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job. Lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation.  However, a reasonable accommodation may be required to assist an employee in meeting a specific production standard.
  • An employer should evaluate the job performance of an employee with a disability the same way it evaluates any other employee’s performance.
  • If an employer gives a lower performance rating to an employee, and the employee responds by revealing she has a disability that is causing the performance problem, the employer still may give the lower rating. If the employee states that her disability is the cause of the performance problem, the employer should follow up by making clear what level of performance is required and asking why the employee believes the disability is affecting performance. If the employee does not ask for an accommodation, the employer may ask whether there is an accommodation that may help raise the employee’s performance level.
  • Ideally, employees will request reasonable accommodation before performance problems arise, or at least before they become too serious. Although the ADA does not require employees to ask for an accommodation at a specific time, the timing of a request for reasonable accommodation is important, because an employer does not have to rescind discipline (including a termination) or an evaluation warranted by poor performance.

Conduct Problems

 

  • If an employee’s disability does not cause the misconduct, an employer may hold the individual to the same conduct standards that it applies to all other employees. In most instances, an employee’s disability will not be relevant to any conduct violations.
  • If an employee’s disability causes a violation of a conduct rule, the employer may discipline the individual, if the conduct rule is job-related and consistent with business necessity and other employees are held to the same standard. The ADA does not protect employees from the consequences of violating conduct requirements, even where the conduct is caused by the disability.

Attendance

  • An employer may have to modify its attendance policies for employees with a disability as a reasonable accommodation, absent undue hardship.
  • Although employers may have to grant extended medical leave as a reasonaable accommodiation, they have no obligation to provide leave of indefinite duration.  Granting indefinite leave, like frequent and unpredictable request for leave, can impose an undue hardship on an employer's operations.

Business Websites Face Americans with Disabilities Act Accommodations Claims

Target Corp. has agreed to pay $6 million in damages to plaintiffs in California unable to use its online site as part of a class action settlement with the National Federation of the Blind. The issue centers on the Americans with Disabilities Act’s requirements that retailers and other public places to make accommodations for people with disabilities. Target had argued that the ADA covered only physical spaces. The California court held that the ADA covers an online retailer’s website. Websites can be made more accessible through screen-reading software that converts text into speech for visually impaired access. The court certified the case as a class action before it settled.

The case has important implications for retailers who may now face class action lawsuits. Employers that rely on a web-based application and recruiting processes should also examine their websites for compliance with the ADA’s employment provisions which require accessibility and accommodation in the hiring process.   A recent OFCCP Directive sets forth the agency's policy on review of employer websites where applications are solicited:

Effective immediately, all compliance evaluations shall include a review of the contractor's online application systems to ensure that the contractor is providing equal opportunity to qualified individuals with disabilities and disabled veterans. The review should include whether the contractor is providing reasonable accommodation, when requested, unless such accommodation would cause an undue hardship. In this directive, the term "online system" shall include, but not be limited to, all electronic or web-based systems that the contractor uses in all of its personnel activities.

Benchmarking against the Federal Government's EEO Performance

The EEOC released its Annual Report on the Federal Workforce for Fiscal Year 2007 (period October 2006 to September 2007).  For those employers who may be benchmarking against the federal government, it seems to me that the government performs at a level that the EEOC would never accept from other employers. Here is a sampling of report’s findings:

·         The federal government employs almost 2.6 million workers of which 56.8% are men and 43.2% are women.

·         The federal workforce’s demographic composition is 7.8% Hispanic or Latino; 65.8% White; 18.4% Black or African American; 6% Asian; 0.2% Native Hawaiian/other Pacific Islander, 1.7% American Indian/Alaskan Native; and 0.2% reported 2 or more races.

·         Hispanic or Latinos, Whites, women and persons of Two or More Races remained below their overall availability in the national civilian labor force, as reported in the 2000 census (CLF).  Black or African Americans, Asians, Native Hawaiian/Other Pacific Islanders, American Indian/Alaska Natives and men remained above their overall availability in the CLF.

·         Federal employees and applicants filed 16,363 complaints alleging discrimination.

·         Unlawful discrimination was found in 2.8% of the 7,673 cases that were closed on the merits.

·         85% of federal agencies provided their EEO staff with required training.

·         58% of federal agencies have an Anti-Harassment Policy.

The good news is that the government is evaluating its EEO performance and publishing the results.

Violence in the Workplace: A Legal Perspective

HR professionals are reminded of their workplaces’ vulnerabilities every time an episode of workplace violence is reported in the media like this morning’s headline “6 dead in plastics factory shooting rampage.”  The scope of the problem set out in statistics. There were 5734 workplace fatalities reported to OSHA (2005 is the last year statistics are available). Assaults and Violent Acts accounted for 792 workplace fatalities.

Media accounts typically report about the “warning signs” that were missed and speculate on how the incident may have been prevented. There are, of course, psychological tests and assessment tools that are predictive of violent behavior, but there are significant legal restrictions on their use. Assessments that are not "medical tests" may be used on a pre-employment basis, but should not be used as the principal reason for a hiring or promotion decision.

There is no profile of a potential workplace violence perpetrator; however, there are traits when coupled with at risk situations that increase the likelihood of violent behavior. Sheryl and Mark Grimm of the Workplace Violence Headquarters have developed a Formula for Workplace Violence that includes a list of traits as follows:

  • Previous history of violence, toward the vulnerable, e.g., women, children, animals
  • Loner, withdrawn; feels nobody listens to him; views change with fear
  • Emotional problems, e.g., substance abuse, depression, low self-esteem
  • Career Frustration, either significant tenure on the same job of migratory job history
  • Antagonistic relationships with others
  • Some type of obsession, e.g., weapons, other acts of violence, romantic/sexual, zealot (political, religious, racial), the job itself, neatness and order.

There is a major legal distinction made between an employer's treatment of an applicant with a potentially violent personality and addressing employee conduct that expresses violent behavior. The EEOC has stated that its position on the distinction between perception and conduction in its  Enforcement Guidance for Individuals with Psychiatric Disabilities :

34. When can an employer refuse to hire someone based on his/her history of violence or threats of violence?

An employer may refuse to hire someone based on his/her history of violence or threats of violence if it can show that the individual poses a direct threat. A determination of "direct threat" must be based on an individualized assessment of the individual's present ability to safely perform the functions of the job, considering the most current medical knowledge and/or the best available objective evidence. To find that an individual with a psychiatric disability poses a direct threat, the employer must identify the specific behavior on the part of the individual that would pose the direct threat. This includes an assessment of the likelihood and imminence of future violence.

30. May an employer discipline an individual with a disability for violating a workplace conduct standard if the misconduct resulted from a disability?

Yes, provided that the workplace conduct standard is job-related for the position in question and is consistent with business necessity. For example, nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence, or from disciplining an employee who steals or destroys property. Thus, an employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability. Other conduct standards, however, may not be job-related for the position in question and consistent with business necessity. If they are not, imposing discipline under them could violate the ADA.

OSHA’s General Duty Clause requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” OSHA provides some resources to help employers meet this requirement.

Given the legal limitations confronting employers in their efforts to provide a safe workplace, the following are some suggestions in development of a Violence Program:

  • Establish and communicate a written violence policy
  • Consider pre-employment assessments and background checks
  • Establish an Employee Assistance Program
  • Train supervisors to recognize warning signs of employee violence
  • Recognize "at risk" situations like employee discipline or discharge and plan accordingly
  • Consider professional evaluations of at-risk employees based on objective signs of workplace problems
  • Assess workplace security measures
  • Develop and Communicate a Disaster Management Plan

Employee's Abortion As Basis For Discrimination Claim

A company’s termination of a female worker's employment for missing work in violation of an attendance policy is illegal discrimination if the termination decision is sufficiently related to the woman’s exercise of her right to an abortion. On May 30, 2008, the Third Circuit Court of Appeals issued its decision in Jane Doe v. C.A.R.S. Protection Plus, Inc., and held that:

Clearly, the plain language of the [Pregnancy Discrimination Act], together with the legislative history, and the EEOC guidelines, support a conclusion that an employer may not discriminate against a woman employee because she has exercised her right to have an abortion. We now hold that the [PDA’s] term “related medical conditions” includes an abortion.

The Third Circuit reversed a district court's decision, which granted summary judgment in favor of a company that operated a business insuring used cars. The Third Circuit found that there were issues of fact that must be resolved by a jury, not a judge. 

The decision also noted the following items unique to a pregnancy discrimination case:

  • There are three elements to a prima facie case of pregnancy discrimination to be proven by an employee:
    • She is or was pregnant and her employer knew she was pregnant
    • She was qualified for her job;
    • She suffered an adverse employment action; and
    • A nexus exists between the pregnancy and the adverse employment action that suggests unlawful discrimination.

The legal analysis for pregnancy discrimination claims follows the rubric set forth for Title VII discrimination claims. Set forth below is a brief overview of the analysis as discussed in Jane Doe v. C.A.R.S. Protection Plus, Inc.

Employee's Prima Facie Case:

  • A nexus can be demonstrated by showing that the pregnant employee was treated less favorably that similarly situated non-pregnant employees. Anemployer's more favorable treatment of temporarily disabled non-pregnant workers raises an inference of discrimination.
  • A discriminatory motive can be demonstrated by remarks by a company decision maker critical of pregnancy or abortion and by the temporal proximity between the abortion and the employee’s separation from employment.

Employer's Burden of Production:

  • An employer may defend a discrimination claim by producinga legitimate nondiscriminatory business reason for an employee’s termination. For example, in Jane Doe v. C.A.R.S. Protection Plus, Inc., the employer’s justification for the employee's termination was job abandonment for failing to call in under its absenteeism policy. 

Employee's Burden to Prove Pretext:

  • The employee must then show the justification is a mere pretext for discrimination by evidence that either casts doubt upon the employer’s reason as fabricated or shows that discrimination was the employer’s true motivation. The evidence of record in Jane Doe v. C.A.R.S. Protection Plus, Inc., created a material issue of fact regarding whether C.A.R.S.'s legitimate nondiscriminatory reason was pretextual.

Social views aside, it appears that in the Third Circuit an abortion is now a recognized activity, covered under the PDA, for which an employee cannot be treated differently in the terms and conditions of her employment. Irrespective of an employer's social views, employers must now recognize the differing treatment of employees who have undergone an abortion presents the possibility for claims under the PDA, and most likely the Pennsylvania Human Relations Act.