Recently in Disability Category

November 26, 2014

What the EEOC plans to tell employers about wellness programs

The U.S. Equal Employment Opportunity Commission is obsessed with wellness programs.

Or, as the EEOC likes to describe them "'so-called' wellness programs." And not in a "yay, so-called wellness programs are super" kinda way.

No, in recent months, the EEOC has initiated litigation against companies (example, example, example) claiming that they violate the Americans with Disabilities Act and the Genetic Information Non-Disclosure Act by both requiring medical examination and penalizing employees who decline to participate.

Back in May 2013, one of the panel experts invited to speak at an EEOC public meeting on wellness programs lamented that, while the ADA allows employers to ask for medical information in connection with voluntary wellness programs, the meaning of "voluntary" merits further clarification.

EEOC Commissioner Lipnic too stressed that the EEOC has a "responsibility where possible to let stakeholders know the Commission's position on these important questions."

And Senate Republicans, well, they don't exactly see eye-to-eye with the EEOC on this issue.

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And so the EEOC has announced (here), that in February 2015, it will provide wellness-program guidance to employers "to address numerous inquiries EEOC has received about whether an employer that complies with regulations implementing the final Health Insurance Portability and Accountability Act (HIPAA) rules concerning wellness program incentives, as amended by the Affordable Care Act (ACA), will be in compliance with the ADA."

The EEOC believes that its new guidance "will benefit entities covered by title I of the ADA by generally promoting consistency between the ADA and HIPAA, as amended by the ACA, and result in greater predictability and ease of administration," while imposing "no new or additional risks to employers."

As former EEOC Chair Berrien recognized at the EEOC's public meeting in May, there has been "broad, bipartisan support for the expanded use of wellness programs to reduce health insurance and healthcare costs." So, hopefully, the EEOC can strike a reasonable balance between the intent of these programs and federal anti-discrimination laws.

November 7, 2014

Accommodating a disabled employee generally does not require displacing another

The Americans with Disabilities Act requires that companies provide a reasonable accommodation to an employee with a disability, if doing so will allow the employee to perform the essential functions of the job.

The ADA contemplates a number of different types of reasonable accommodations. One such accommodation is a transfer into an open position for which the disabled employee is qualified. But what happens when there is no vacancy. Must an employer bump another non-disabled employee to accommodate the one with the disability?

As an Ohio federal court reminds us in this recent opinion that the answer is no, unless special circumstances exist:

Arthur claims that special circumstances exist here, and that ASI should have given him another employee's job, and transferred that employee to the machining job Arthur was offered. ...But Arthur has not shown that ASI permitted employees whose jobs were eliminated [like Arthur's] to "bump" other regular employees out of their jobs. The only evidence in the record shows that ASI's internal transfers were to open positions, or to positions that were filled with temporary employees. And Arthur has not identified any open positions or positions occupied by temporary employees, in any of the departments that he contends he should have been transferred to, such as operating a forklift or working in the rackroom.

What are the special circumstances that may arise? A pattern and practice of bumping employees could suffice. An established seniority system is another example. But absent special circumstances, disabled employees enjoy the same rights as other employees, no more; no less.

November 5, 2014

85,000 reasons to nix inflexible employee-leave policies

Just go ahead, and kill them dead!

But before I get to that, I want to quickly plug our free event next week on November 12, 2014. I'll give you four reasons to attend:

  1. Chai R. Feldblum, Commissioner, U.S. Equal Employment Opportunity Commission
  2. Richard F. Griffin, Jr., General Counsel, National Labor Relations Board
  3. Harry I. Johnson, III, Board Member, National Labor Relations Board
  4. Free breakfast

Sure, I'll be on the panel too, but do any of you really want to see me? Besides, I wouldn't want to destroy the mystique of our intimate blogger-reader relationship? I imagine many of you now breathless, picturing an erudite, chiseled, scholar; the blogging prose, typos, and grammar mistakes dripping from my two-typing fingers, as I....I'll stop talking now. 

Details on the event are here. A few tickets still remain. RSVP fast!

After the jump, back to reality. Kill! Kill! Kill! (the policies...)

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November 3, 2014

Under the ADA, is talking an essential job function for an HR Specialist?

Whether a department of many, or just one, your job as an HR professional has you juggling many balls. You're running an open enrollment, conducting a workplace investigation, recruiting, wage-setting. Cot' damn, you're busy!

To get those tasks done, you'd better have the gift of gab.

Or not.

Is verbal communication an essential function for a Human Resources Specialist? A federal court just examined this question under the Americans with Disabilities Act.

Click through for the answer...

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October 29, 2014

HR CHEATSHEET: When an employee texts you from an Ebola quarantine tent

Five minutes ago, after taking the obligatory selfies and between games of Candy Crush, one of your employees texted (because, calling in, as if!) from an Ebola quarantine tent to alert you that she will be out of work for 21 days, while under observation for Ebola.

As an employer, what are your obligations? What workplace laws are implicated?

And, of course, because half of you are thinking it, can you just fire her?

Because this post has nothing to do with clicks or SEO -- nothing whatsoever -- click through for the answers...

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Continue reading "HR CHEATSHEET: When an employee texts you from an Ebola quarantine tent" »

October 28, 2014

Tweet today with the EEOC about the Americans with Disabilities Act #EEOC4NDEAM

I'll be at the SHRM Lehigh Valley Annual Conference today presenting "What's Hot at the EEOC...and How to Avoid Getting Burned!" with the EEOC's Mary Tiernan.

If you're at the conference, stop by with pizza and beer and say hello with pizza and beer.

However, if you can't make it, Domino's delivers, and you still want to get your Equal Employment Opportunity learn on, then there's this from the from the EEOC:

The U.S. Equal Employment Opportunity Commission (EEOC) will hold a live Twitter chat on Tuesday, Oct. 28, from 2:00 to 3:00 pm (EDT). In commemoration of National Disability Employment Awareness Month (NDEAM), the interactive online forum will focus on the federal government as a model employer of people with disabilities. EEOC Chair Jenny Yang and Commissioner Chai Feldblum will answer questions during the hour-long chat. 
Members of the public are encouraged to participate by submitting questions using the hashtag #EEOC4NDEAM. The EEOC invites queries regarding the hiring, promotion and retention of people with disabilities in the federal government and suggestions on how agencies can increase the number of people with disabilities in the federal workforce.

Here's my question: "When will the #EEOC issue guidance on leave as a reasonable accommodation? #EEOC4NDEAM #HurryUpAlready #PrettyPlease #DorkiestPrettyPleaseEver"

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October 23, 2014

Court gives cold shoulder to frostbite as an ADA disability

See that lede right there! That's journalism, baby!

After the jump, let's talk about what it means to have a disability under the Americans with Disabilities Act Amendment Act.

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Continue reading "Court gives cold shoulder to frostbite as an ADA disability" »

October 7, 2014

Remember that a duty to accommodate may exist after childbirth

Seems one employer may not have received the memo. Now, the EEOC is taking aim. More on this and some tips for employers to avoid pregnancy-accommodation traps, after the jump...

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September 19, 2014

A company so concerned about an employee with cancer....it fired her?!?

That ain't legal, yo.

I'll tell you why after the jump...

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September 10, 2014

EEOC takes on fitness-for-duty medical releases; how to avoid the crosshairs.

Congratulations!

Your fitness-for-duty employee medical examinations are job-related or consistent with business necessity. So, they pass muster under the Americans with Disabilities Act. But, what about the medical information you request from employees in connection with those exams? 

Oh yeah, there's that too...

Ask for too much info and you might you be violating not only the ADA, but also the Genetic Information Non-Discrimination Act.

Rut roh! More after the jump...

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Continue reading "EEOC takes on fitness-for-duty medical releases; how to avoid the crosshairs." »

September 8, 2014

Apparently, the ADA requires accommodating an employee's anger issues with a Shih Tzu named "Sugar Bear"

Hey, I don't make this stuff up. I just blog about it.

More after the jump...

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August 21, 2014

Yes, you can fire an employee who discloses a disability at his termination meeting

Filed under: duh!

More on this one after the jump...

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August 13, 2014

An employer-defendant argued that cancer -- CANCER!!! -- is not an ADA disability

How do you think that worked out? (I've got a pretty good guess too).

After the jump, let's see if we're right.

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August 8, 2014

Court says having to pee uncontrollably is not an ADA disability

Talk about a pissed-off plaintiff. 

I'll be here all week. (Thank God it's Friday).

More on this interesting Americans with Disabilities Act decision after the jump...

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Continue reading "Court says having to pee uncontrollably is not an ADA disability" »

August 7, 2014

Guess why dude lost his ADA failure-to-accommodate claim. (Hint: he didn't ask for one).

When the new amendments to the the Americans with Disabilities Act took effect in 2009, the law became more employee-friendly by expanding the definition of what constitutes a disability.

That said, the law doesn't (yet) require an employer to have a sixth sense about whether a disabled employee requires a reasonable accommodation.

Generally, an employee has to ask for it. Or, as we find out after the jump, an ADA failure-to-accommodate lawsuit is pretty much doomed.

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Continue reading "Guess why dude lost his ADA failure-to-accommodate claim. (Hint: he didn't ask for one)." »