Recently, the EEOC issued a Notice of Proposed Rulemaking (NPRM) which would amend the regulations implementing Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) as they relate to employer wellness programs that are part of group health plans. This NPRM related to GINA is an encore, of sorts, to the regulations the Commission proposed earlier this year in the area of wellness programs as they related to the Americans with Disabilities (ADA) Act.
According to a 2011 publication of the Centers for Disease Control and Prevention (CDC), “Mental illnesses account for a larger proportion of disability in developed countries than any other group of illnesses, including cancer and heart disease.” The study noted that an estimated 25% of adults self-reported a mental illness at a projected economic cost of $300 billion as of that date.
I was recently asked if an employer has to assign a qualified employee with a disability to a vacant position as part of the employer’s duty to reasonably accommodate the disability. The employer believed that, if he had a vacant position and the disabled employee was qualified for it, he had to give the job to that employee. While reassignment to a vacant position may be a reasonable accommodation under the ADA, there is no requirement that you must reassign the employee. Let’s see if we can clear up this misconception.
In a recent decision, Jacobs v. N.C. Administrative Office of the Courts (“AOC”), the Fourth Circuit reinstated a disability discrimination lawsuit filed by a court clerk terminated three weeks after requesting an accommodation for her social anxiety disorder.
We have written previously on this blog about the decision of a panel of the 6th Circuit Court of Appeals (which covers Ohio, among other jurisdictions), which determined last year that an employee with irritable bowel syndrome who worked for Ford Motor Company should have been permitted to work from home as a reasonable accommodation to her condition. Not satisfied with the decision, Ford pleaded for a re-hearing by the entire 6th Circuit. Recently, after the 6th Circuit granted that request, the Court reversed course and determined that doing your job at the workplace can be an essential job function.
A few weeks back, my colleague, Joe Leonoro, wrote a blog entry entitled, “U.S. Supreme Court Tackles Pregnancy Discrimination in the Workplace,” which can be found here. In his post, Joe wrote about the United States Supreme Court’s decision in Young v. UPS, in which the Supreme Court overturned the Fourth Circuit’s affirmation of the district court’s grant of summary judgment to UPS in a pregnancy discrimination case. Specifically, the Court found that a question of fact remained as to whether UPS had discriminated against Ms. Young by refusing to allow her a light duty accommodation for the duration of her pregnancy. The Fourth Circuit, acting swiftly, issued its opinion less than one month later in which it again affirmed the district court and dismissed Ms. Young’s claim.
Wellness programs are surging in popularity as employers seek to reduce steadily rising healthcare costs. But could a well-intentioned wellness program end up costing you? With open enrollment for medical plans right around the corner for most employers, now is the time to ensure your wellness program complies with the Americans with Disabilities Act (ADA) and EEOC guidelines. A pair of EEOC complaints filed in Wisconsin should put employers on alert that the agency is placing employee wellness programs under its microscope to determine if the programs potentially violate the Americans with Disabilities Act (“ADA”). These two cases are the first the agency has ever filed over wellness programs.
In April 2014, the Sixth Circuit, in EEOC v. Ford Motor Co., decided that telecommuting may be a reasonable accommodation under the ADA, even if the employer’s business judgment dictates otherwise. The court reversed a grant of summary judgment to Ford on the EEOC’s claim that Ford failed to accommodate an employee’s irritable bowel syndrome (“IBS”) by refusing to let her telecommute most days. However, in September 2014, the court agreed to reconsider that decision, vacating its April 2014 decision and restoring the case to the docket as a pending appeal.
The United States District Court for the Eastern District of Pennsylvania ruled in Riley v. St. Mary’s Medical Center that, while the ADA Amendments Act of 2008 (“ADAAA”) altered the federal standard for proving a disability under the Americans with Disabilities Act and as the Pennsylvania legislature has not enacted a similar amendment to the Pennsylvania Human Relations Act (“PHRA”), the higher, pre-ADAAA standard for proving “disability” will apply to a plaintiff’s PHRA disability claim.