Americans with Disabilities Act

Employee Benefits Issues Implicated by Incentivizing Employees to Obtain the COVID-19 Vaccine

March 16, 2021

By Daniel J. Nugent

Many employers are grappling with the decision of whether to provide an incentive (e.g., a cash payment, other form of financial incentive or increased time off) to employees to encourage them to receive the COVID-19 vaccine. Employers wishing to implement a COVID-19 vaccine incentive program should be aware that such a program will likely be considered a “wellness program” which implicates a myriad of legal issues, including issues under the Americans with Disabilities Act (ADA), Genetic Information Nondiscrimination Act (GINA), and Health Insurance Portability and Accountability Act (HIPAA).

Read More >> Employee Benefits Issues Implicated by Incentivizing Employees to Obtain the COVID-19 Vaccine

EEOC Issues COVID-19 Vaccination Guidance

December 18, 2020

By Nicholas P. Jacobson and Nolan Kokkoris

On Wednesday, December 16, the Equal Employment Opportunity Commission (EEOC) released new guidance (the Guidance) for employers regarding COVID-19 vaccinations. While the Guidance offers some insight for employers who are considering offering vaccinations to employees or requiring that employees get the COVID-19 vaccination, a number of questions still remain unanswered. The following are some key takeaways from the Guidance.

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The EEOC Supplements Its Guidance on the Application of Disability Discrimination Laws to COVID-19 Issues

September 23, 2020

By Peter H. Wiltenburg

The COVID-19 pandemic has placed employers in a difficult position when it comes to complying with the Americans with Disabilities Act (ADA) and the Rehabilitation Act. New protocols for maintaining workplace safety necessitate inquiries about employees’ health that present privacy pitfalls. Moreover, widespread teleworking early in the pandemic has created new questions about reasonable accommodations as workplaces have reopened. On September 8, 2020, the Equal Employment Opportunity Commission (EEOC) supplemented its existing FAQs to provide additional guidance on some of these issues. The full guidance, including the recent additions, is available here. The most notable points from the September 8 additional guidance are summarized below.

Read More >> The EEOC Supplements Its Guidance on the Application of Disability Discrimination Laws to COVID-19 Issues

Supreme Court Applies "Ministerial Exception" to Teachers at Religious Schools

July 20, 2020

By Theresa E. Rusnak

On July 8, 2020, the Supreme Court analyzed the ministerial exception for employees who allege employment discrimination claims for the first time in nearly a decade when it issued its decision in Our Lady of Guadalupe School v. Morrissey-Berru. The decision, which was issued in two combined cases on appeal before the Court, confirms the general principle under the First Amendment to the U.S. Constitution that religious institutions must retain the right to select, supervise, and, if necessary, remove an employee who qualifies as a "minister" without interference by secular authorities. The Court construed the definition of “minister” broadly in holding that the ministerial exception applied to two teachers at religious schools who had filed employment discrimination claims pursuant to the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA) respectively.

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EEOC Issues New Guidance on COVID-19

April 20, 2020

By Theresa E. Rusnak

On April 17, 2020, the Equal Employment Opportunity Commission (EEOC) issued updated guidance on COVID-19 in the workplace. The EEOC has been releasing information on the pandemic for employers since mid-March, and the most recent updates to the guidance primarily focus on how employers should accommodate employees during the pandemic as well as how to return individuals to work once the pandemic subsides.

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An Employee Has COVID-19. Now What Do I Do?

March 19, 2020

By Gail M. Norris

There is a lot of information available on the internet regarding an employer’s obligations in preparing for and dealing with the COVID-19 pandemic.  As a responsible employer, your organization has likely taken many steps to prepare for some of the work-related fall-out from this pandemic.

Still, if and when the first confirmed case of a COVID-19 infection in one of your employees occurs, it is normal to experience a momentary “panic freeze” about what to do.  This blog post lays out the basic rules to follow and resources to check.

Read More >> An Employee Has COVID-19. Now What Do I Do?

The Sound of Silence: Seventh Circuit Holds That Undocumented Misconduct is Still Misconduct

August 5, 2019

By Howard M. Miller

If you’ve had occasion to converse with a management-side employment lawyer (and somehow survived it), it seems the edict of documenting performance issues is tattooed on his/her forehead. I must confess in my own supervisor training I have warned that, in essence, “if it’s not in writing, it did not happen” (at least for purposes of trying to get a case dismissed on a motion for summary judgment). I still believe that documentation is always the safest course, but can an employer still fire an employee for a series of undocumented incidents and avoid having to go to trial when the employee disputes them? The Seventh Circuit has answered this question in the affirmative.

Read More >> The Sound of Silence: Seventh Circuit Holds That Undocumented Misconduct is Still Misconduct

A Higher Hurdle Imposed for ADA Plaintiffs in the Second Circuit

May 14, 2019

By Richard S. Finkel

It just became a bit more difficult for plaintiffs within the jurisdiction of the Second Circuit Court of Appeals (which includes New York) to succeed on disability discrimination claims brought against their employers under the Americans with Disabilities Act (“ADA”).

The ADA prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability in regard to . . . the hiring, advancement, or discharge of employees.”  An employer also may face liability if it refuses to provide a reasonable accommodation to an employee with a disability and that employee can demonstrate that he or she can perform the essential functions of his or her job if provided with such an accommodation.  A plaintiff advancing either type of claim is required to demonstrate a causal connection between his or her disability and the adverse employment action.  Until now, the employee litigating his or her claim within the Second Circuit had that causal connection examined under a “mixed motive” analysis.

However, that recently changed in Natofsky v. City of New York, decided on April 18, 2019.  In that case, the Second Circuit Court of Appeals held that the same standard should be used to analyze disability discrimination claims brought under the Rehabilitation Act of 1973 (which applies to federal employers and employers operating programs or activities that receive federal financial assistance) and disability discrimination claims brought under the ADA.  The Court determined that, under both statutes, a plaintiff must prove “that discrimination was the but-for cause of any adverse employment action."

The Court’s adoption of the “but-for” standard means that ADA plaintiffs now face the same hurdle that employees advancing ADEA claims and Title VII retaliation claims face.

Read More >> A Higher Hurdle Imposed for ADA Plaintiffs in the Second Circuit

“Brute Reason” or Lack of Nuance: Seventh Circuit’s Twin Holdings That a Long Term Leave is Not a Reasonable Accommodation May Not Be a Panacea in Other Jurisdictions

November 29, 2017

By Howard M. Miller

In one of his more pithy lines, Oscar Wilde wrote, “I can stand brute force, but brute reason is quite unbearable.  There is something unfair about its use.  It is hitting below the intellect.”  Oscar Wilde, The Picture of Dorian Gray.

For employers dancing on the head of the ADA’s pin of reasonable accommodations, the Seventh Circuit’s two decisions holding that a multi-month leave of absence is not a reasonable accommodation under the Americans with Disabilities Act is like a tropical breeze in the dead of winter.  The brute reason of the opinions is compelling, but will other circuits find the per se rules established in them simply too rigid?

In the first case, Severson v. Heartland Woodcraft, Inc., the employer granted an employee with a chronic back condition 12 weeks of leave under the Family and Medical Leave Act.  Two weeks before the leave expired the employee informed the employer, Heartland, that he needed surgery on the date his leave was set to expire with a recovery period of at least two months.  Heartland notified the employee that his employment would be terminated at the end of his FMLA leave, but that he could reapply for a position when he was medically cleared.  The employee sued and the Equal Employment Opportunity Commission submitted an amicus brief on his behalf.  The Seventh Circuit directly addressed and expressly rejected the EEOC’s position that a long term leave of absence can and should be considered a reasonable accommodation.  In so ruling, the Court erected a monument to brute reason:

Perhaps the more salient point is that on the EEOC’s interpretation, the length of the leave does not matter.  If, as the EEOC argues, employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute — in effect, an open-ended extension of the FMLA.  That’s an untenable interpretation of the term ‘reasonable accommodation.’

Just a few weeks later, the Seventh Circuit, in Golden v. Indianapolis Housing Agency, addressed the issue again, this time on particularly heartbreaking facts.  The plaintiff had taken 16 weeks of leave due to ongoing treatment, including a mastectomy, for breast cancer.  Despite the fact pattern that seemed to be undeniably sympathetic to the plaintiff, the Court followed its prior decision in Severson, holding:

While we sympathize with Golden’s plight, clear circuit precedent controls this case.  Under Severson . . . an employee who requires a multi-month period of medical leave is not a qualified individual under the ADA or the Rehabilitation Act.

There was, however, a concurrence with the Court’s own brute reason.  Judge Rovner concurred that the Court was bound by Severson, but argued:

The ADA, by its terms, is meant to be flexible and to require individualized assessments of both the reasonableness of an employee’s requested accommodation and the burden on employers.  Holding that a long term medical leave can never be part of a reasonable accommodation does not reflect the flexible and individual nature of the protections granted employees under the Act.

Employers outside of the Seventh Circuit’s jurisdiction would be wise to pay careful attention to the concurrence in Golden and consider whether the views expressed by Judge Rovner may win the day in other circuits.  Right now, the Severson/Golden majority decisions are only binding in the Seventh Circuit, and have no applicability to local disability statutes such as the New York City Human Rights Law which permits open-ended long term leaves as reasonable accommodations.  In New York, employers must still engage in the interactive process with employees who request leaves beyond the FMLA period.  Going through that process and being able to articulate an undue hardship that may result from granting a multi-month leave is still the law and best practice in New York.

EEOC Issues Final Enforcement Guidance on Retaliation and Related Issues

September 29, 2016

By Sharon A. Swift
On August 25, 2016, the U.S. Equal Employment Opportunity Commission issued its final “Enforcement Guidance on Retaliation and Related Issues.”  Along with the final guidance, the EEOC issued a Q&A publication and a Small Business Fact Sheet. Since 1998, the Supreme Court and lower courts have issued a number of significant rulings regarding employment related retaliation.  The guidance illustrates where the EEOC is in agreement with lower court rulings and, significantly, where the EEOC’s interpretation of the law differs from that of the courts.  It should come as no surprise that the EEOC takes a broad view of the protections afforded by the anti-retaliation provisions of the EEO laws it enforces.  The final guidance offers employers insight into how the EEOC will handle retaliation charges and suggests “promising practices” for employers to follow to avoid such charges.  Some issues of note include: The EEOC takes an expansive view of protected participation activity. The basic premise of “retaliation” has not changed.  Retaliation occurs when an employer takes a materially adverse action against an individual because the individual engaged in protected activity.  Protected activity includes participating in an EEO process (participation activity) or opposing discrimination (opposition activity). Both the courts and the EEOC recognize that participating in administrative proceedings or lawsuits to enforce rights under the EEO laws is protected participation activity.  However, the EEOC goes a step further, taking the position that participation in an employer’s internal complaint process is also protected participation activity.  This is significant because participation activity is so broadly protected.  Indeed, an employee need not have a reasonable good faith belief that discrimination actually occurred for participation activity (i.e., filing an internal complaint) to be protected.  According to the EEOC, even complaints made in bad faith or which contain false or malicious allegations are protected participation activity.  Further, it is the EEOC’s position that employers can be liable for retaliation if they discipline an employee for such bad faith actions taken in the course of participation. A wide range of actions are considered "materially adverse." Relying on Supreme Court precedent, the EEOC makes clear that in the context of a retaliation claim, a much broader range of employer actions will be considered “materially adverse” than in the context of a discrimination claim.  For purposes of a retaliation claim, a materially adverse action is “any action that might well deter a reasonable person from engaging in protected activity.”  Work-related threats, warnings, reprimands, negative or lowered performance appraisals, and transfers to less prestigious or desirable work or work locations all likely meet this standard.  Note, however, that an employer’s actions need not be work-related to be considered “materially adverse actions.”  According to the EEOC, prohibiting only employment-related actions would not be effective in preventing retaliation because the employer could retaliate by taking action not directly related to the employee’s employment or by causing the employee harm outside of the workplace. The EEOC lists the following examples of materially adverse actions:  disparaging an employee to the media, making false reports to government authorities, filing a civil action, threatening reassignment, scrutinizing work or attendance more closely, removing supervisory responsibilities, requiring re-verification of work status or initiating action with immigration authorities, terminating a union grievance process, and taking or threatening to take adverse action against a close family member. There is a lower standard for actionable "retaliatory harassment." The EEOC recognizes that sometimes retaliatory conduct is characterized as “retaliatory harassment.”  The standard for establishing “retaliatory harassment” differs significantly from the standard for establishing a discriminatory harassment claim.  To constitute unlawful retaliation, harassing conduct does not have to be severe or pervasive enough to create a hostile work environment.  If the alleged harassing conduct is reasonably likely to deter protected activity, it would be actionable retaliation, even if not sufficiently severe or pervasive enough to create a hostile work environment. The ADA's interference clause is interpreted more broadly than the anti-retaliation clause. In addition to retaliation, the Americans with Disabilities Act prohibits interference with the exercise of ADA rights.  According to the EEOC, the interference clause is much broader than the anti-retaliation clause, “reaching even those instances when conduct does not meet the ‘materially adverse’ standard required for retaliation.”  However, the EEOC notes that in its view, the interference provision does not apply to any and all conduct an individual finds intimidating.  Rather it only prohibits conduct that is reasonably likely to interfere with the exercise or enjoyment of ADA rights.  Examples of such conduct include:
  • Coercing an individual to forego an accommodation to which they are entitled;
  • Intimidating an applicant from requesting an accommodation for the application process by indicating they would not be hired as a result of the request;
  • Threatening an employee with termination if they do not “voluntarily” submit to a medical examination or inquiry otherwise prohibited by the ADA;
  • Issuing a policy purporting to limit an employee’s rights to invoke ADA protections (e.g., a fixed leave policy that states “no exceptions will be made for any reason”);
  • Interfering with a former employee’s right to file an ADA lawsuit by stating that a negative reference will be given if a suit is filed; and
  • Subjecting an employee to unwarranted discipline, demotion, or other adverse treatment because the employee assisted a co-worker in requesting a reasonable accommodation.
The guidance includes some suggested "promising practices" for employers. The final guidance includes “promising practices” which the EEOC posits may help reduce the risk of violations.  However, the EEOC is careful to advise that adopting these practices will not insulate an employer from liability or damages for unlawful actions.  The “promising practices” include:
  • Maintaining written policies which include examples of retaliation, steps for avoiding actual or perceived retaliation, a complaint procedure, and a clear explanation that engaging in retaliation will result in discipline, up to and including termination;
  • Training all managers, supervisors, and employees on the anti-retaliation policy;
  • Establishing a process for reminding the parties and witnesses involved in an EEO matter of the anti-retaliation policy, and providing advice to managers and supervisors alleged to have engaged in discrimination on how to avoid engaging in retaliatory conduct or conduct which may be perceived as retaliatory;
  • Following up with employees, managers and witnesses while an EEO matter is pending to ask if there are any concerns regarding potential or perceived retaliation; and
  • Reviewing proposed employment actions, preferably by a designated human resource or management official, to ensure that employees and witnesses are not subject to retaliation.