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.
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.
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.
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.
In theory, employers are all generally familiar with the “interactive process” and the need to provide disabled employees with reasonable accommodation absent undue hardship. But in practice are employers actually complying with these legal obligations? Maybe not, says the EEOC.
On May 9, 2016, the EEOC issued a strong reminder to employers about their legal obligations under the Americans with Disabilities Act related to accommodation of disabled employees. According to the EEOC, it continually receives complaints that indicate employers may not be fully aware of their legal obligations: "For example, some employers may not know that they may have to modify policies that limit the amount of leave employees can take when an employee needs additional leave as a reasonable accommodation. Employer policies that require employees on extended leave to be 100 percent healed or able to work without restrictions may deny some employees reasonable accommodations that would enable them to return to work. Employers also sometimes fail to consider reassignment as an option for employees with disabilities who cannot return to their jobs following leave."
The EEOC has recently taken a particularly close look at employer leave policies to ensure they are not so inflexible as to foreclose the possibility of a leave of absence being provided as an accommodation.
So what exactly is a “reasonable accommodation”? Generally, a reasonable accommodation is “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” But what this means in any given situation will necessarily depend on a number of factors, including for example the particular position held by the employee, the particular restrictions the employee’s disability places on his/her ability to perform that job, and the projected duration of the restrictions. Perhaps for one employee reasonable accommodation means providing a leave of absence after he/she has already exhausted any leave available under the Family and Medical Leave Act so that the employee is able to recover from a serious health condition before returning to work. Or perhaps it means allowing an employee to return to work from a leave of absence in a light duty capacity while he/she completes recovery. For another it could mean moving an employee’s work location to an area where he/she has easy access to a restroom, or restructuring an employee’s marginal (or non-essential) job duties so he/she does not have to lift items over a certain weight.
It is also important to remember that although it will never be deemed “reasonable” for an employee, as an accommodation, to be excused from having to perform the essential functions of his/her job, whether something actually is an essential function is not always intuitive. For example, is it an essential function of a firefighter’s job to be physically able to fight fires? Perhaps not. In Stone v. City of Mount Vernon, the Second Circuit Court of Appeals reversed a decision granting summary judgment to the employer in an ADA lawsuit filed by a former fire department employee, holding that there was a genuine issue of material fact warranting a trial regarding whether fire suppression was an essential function of the job. Or is heavy lifting necessarily an essential function of a manual laborer’s job? Again, perhaps not (according to the 1993 decision of the U.S. District Court for the Northern District of New York in Henchey v. Town of North Greenbush).
A key take-away when dealing with accommodation issues is that there is no one-size-fits-all approach. That is why it is so important for an employer to engage in the “interactive process” with the employee and find out exactly what his/her limitations are and whether there is an accommodation that can reasonably be provided to enable the employee to perform the essential functions of his/her job. It may be that the interactive process reveals there is no accommodation that can be provided without imposing an undue hardship on the employer, or that will enable the employee to perform the essential functions of his/her job. If that is the case, accommodation need not be provided under the law. But the employer will not know that unless and until it engages in the interactive process and finds out.
Following predetermined policies and rules might seem to be the essence of fairness. But when it comes to accommodations of disabilities, employers who follow rules too inflexibly can get into trouble. One rule that employers should always follow is to engage in good faith in the “interactive process.”
Attendance point systems undoubtedly have appeal. These policies -- often referred to as "no fault attendance policies" because they assign points to absences regardless of the cause -- take the subjectivity out of attendance-related corrective action. However, to be legally compliant, an attendance point system must make allowances for legally protected absences.
You may be thinking -- "how could this be discrimination? We're treating disabled employees the same as all other employees." Well, the ADA requires you to not only treat qualified individuals with disabilities the same as you would nondisabled employees, it also requires that you provide reasonable accommodations -- modifications or adjustments to the way things usually are done that enable a qualified individual with a disability to enjoy an equal employment opportunity. Among the possible accommodations envisioned by the EEOC? Modifying or changing policies.
Not surprisingly, the EEOC now has employers with attendance point systems in its sights. In fact, the EEOC has brought legal action against a number of employers who maintain attendance point systems that fail to except out legally protected absences.
By way of example, last week, the EEOC announced a $1.7 million settlement with Pactiv LLC, an Illinois-based employer. According to the EEOC, Pactiv maintained policies under which attendance points were issued for medical-related absences. In addition to paying $1.7 million, Pactiv also agreed to revise and distribute a new attendance policy that will not assess points for disability-related absences. As noted by the EEOC District Director -- "Employers need to get this message: Inflexible, strictly enforced leave policies can violate federal law. . . . As an employer, make sure you have exceptions for people with disabilities and assess each situation individually."
Review your attendance policy to ensure it does not provide for the assignment of points (or corrective action) when an absence is legally protected. If it does, work with labor and employment counsel to revise your policy to bring it into compliance.
Educate supervisors and others involved in the administration of your attendance policy.
On April 20, 2015, the Equal Employment Opportunity Commission (“EEOC”) issued a proposed rule to amend the regulations and interpretive guidance implementing Title I of the Americans with Disabilities Act (“ADA”) as it relates to employer wellness programs. The EEOC also issued a Fact Sheet for Small Business and a Q&A regarding the proposed rule.
By way of background, Title I of the ADA prohibits employment discrimination on the basis of disability. This non-discrimination provision applies to compensation and other terms, conditions, and privileges of employment, including fringe benefits, whether or not administered by the employer. It also limits the medical information that employers may obtain from employees and applicants. The ADA, however, does permit employers to conduct medical examinations and inquiries, including voluntary medical histories, when it is part of a voluntary employee health program. The EEOC’s proposed rule is intended to provide guidance to employers on the extent to which the ADA permits employers to offer incentives to employees to promote participation in wellness programs that are employee health programs.
What is a wellness program and when would it be considered an employee health program?
A wellness program is a program or activity that is typically offered through employer-provided health plans to help employees improve their health with the goal of lowering health care costs. Wellness programs often encourage employees to become more active, quit smoking, eat better, etc., by offering monetary or other rewards or incentives for doing so. Some wellness programs obtain medical information from employees by asking them to complete health risk assessments or undergo biometric screenings.
According to the proposed rule, a wellness program could be considered an employee health program if it is reasonably designed to promote health or prevent disease. In other words, it must: (1) have a reasonable chance of preventing disease and improving the health of participating employees; (2) not be overly burdensome; (3) not be a subterfuge for violating the ADA or other employment discrimination laws; and (4) not be highly suspect in the method chosen to promote health and prevent disease.
When would participation in a wellness program be considered voluntary?
A wellness program that includes disability-related inquiries or medical examinations would be considered voluntary as long as the employer: (1) does not require employees to participate; (2) does not deny access to health coverage or limit the extent of benefits for employees who do not participate; (3) does not take adverse action, retaliate against, interfere with, coerce, intimidate, or threaten employees who do not participate in the program or who do not achieve certain outcomes; and (4) provides written notice to employees (when the wellness program is part of a group health plan) that describes the medical information that will be obtained, the purposes for which it will be used, who will receive it, and how it will be safeguarded.
Does the use of incentives to encourage employees to participate in a wellness program render it involuntary?
No. The EEOC takes the position in its proposed rule that the use of incentives, whether in the form of reward or penalty, will not render the program involuntary as long as the maximum allowable incentive available under the program does not exceed 30 percent of the total cost of employee-only coverage. For example, if the total cost of employee-only coverage is $5,000, the maximum incentive for an employee under the plan cannot exceed $1,500. This is consistent with the maximum allowable incentive amount under the Health Insurance Portability and Accountability Act (“HIPAA”) and the Affordable Care Act health-contingent wellness programs.
Will medical information gathered as part of an employee’s participation in wellness programs be kept confidential?
Yes. The EEOC proposes adding a new subsection to its regulations relating to confidentiality to ensure that medical information collected through participation in employee health programs will only be provided to employers in aggregate terms and will not disclose (or be reasonably likely to disclose) the identity of any specific employee.
While we await issuance of a final rule, here are a few steps that employers can take to ensure that their wellness programs comply with the ADA:
Confirm that wellness programs are reasonably designed to promote health or prevent disease.
Audit the incentives offered under wellness programs to ensure that they do not exceed 30 percent of the total cost of employee-only coverage.
Ensure that employee participation in wellness programs is voluntary.
Provide reasonable accommodations to enable employees with disabilities to participate in wellness programs and earn whatever incentives are offered.
Ensure that medical information is maintained in a confidential manner, which includes training employees on handling confidential medical information, encryption of electronic medical information, and prompt reporting of breaches.
Establish a written notice to employees regarding the collection of medical information.
Do not deny health insurance or limit the extent of benefits to employees who choose not to participate in wellness programs.
Do not take adverse action, retaliate against, interfere with, coerce, intimidate, or threaten employees who do not participate in wellness programs or who do not achieve certain outcomes.
Over the past few months, the media has reported extensively about several incidents of domestic violence involving professional athletes. While these high-profile cases generate huge attention, it is important to remember that domestic violence is a problem of epidemic proportion. The Center for Disease Control and Prevention reports that 1 in 4 women and 1 in 10 men have experienced physical or sexual violence or stalking by an intimate partner. Only a small fraction of these cases involve millionaire athletes. Whether it is obvious or not, domestic violence impacts workplaces across the United States on a daily basis. When this happens, an employer is often left struggling with the question of how – if at all – it should acknowledge and react to an employee’s sensitive and highly personal situation. While the nature of the problem makes it impossible to predict every issue that might arise, the following questions are frequently asked by employers when domestic violence affects their workplace. Question:Do any job protections exist for domestic violence victims?Answer: Yes. In several states, including New York, domestic violence victim status is a protected category, meaning that an employer cannot take adverse job actions against an individual on that basis. While federal law does not expressly provide this same protection, Title VII of the Civil Rights Act (Title VII) makes it unlawful for an employer to treat an employee differently due to sex-based stereotypes, such as the assumption that there will inevitably be “distractions” in the workplace if a female employee is involved in an incident of domestic violence. This is not to say that domestic violence victims are insulated from employment actions taken for legitimate work deficiencies or other non-discriminatory reasons. It does mean, however, that an employer will be expected to prove that a challenged action occurred for a non-discriminatory reason. It is also important to remember that the Americans with Disabilities Act (ADA) and analogous state laws prohibit discrimination on the basis of covered physical or mental impairments. Those same laws also require employers to provide disability-related accommodations, which could include modifying certain job responsibilities or employment policies, unless doing so would cause an undue hardship to the business. Although an incident of domestic violence would not itself implicate these laws, the accompanying physical and emotional harm could constitute a disability resulting in employee coverage. Question:Is an employer required to provide victims of domestic violence time off from work?Answer: The New York Penal Law makes it a misdemeanor offense for an employer to penalize the victim of a crime who, after giving advance notice, takes time off from work to appear in court as a witness, consult with a district attorney, or obtain an order of protection. In addition, the federal Family and Medical Leave Act (FMLA) grants eligible employees up to 12 weeks of unpaid leave to recover or receive treatment for serious health conditions, which could include counseling for any physical or psychological conditions resulting from domestic violence. The ADA and equivalent state laws may also require that some amount of unpaid leave be offered as a form of reasonable accommodation. An employer would also be expected to grant domestic violence victims time off from work pursuant to internal leave policies if leave is normally available to employees experiencing other types of personal matters. Question:Is an employer obligated to ensure a safe workplace for domestic violence victims?Answer: The Occupational Safety and Health Administration considers workplace violence to be an occupational hazard which can be prevented or minimized with appropriate precautions. Included within the agency’s definition of workplace violence is violence by someone who does not work at a given location, but who has a personal relationship with an employee. Under the Occupational Safety and Health Act’s “General Duty Clause,” employers are required to provide a place of employment that is free from recognizable hazards that cause or are likely to cause harm to employees. An employer that has experienced acts of workplace violence – or is on notice of threats, intimidation, or other indicia to show a potential for workplace violence – is required under the general duty clause to implement feasible abatement measures. Question:What if my employee is not the victim, but is the person accused or found guilty of engaging in criminal acts often associated with domestic violence?Answer: New York and many other states make it unlawful for an employer to discipline, discharge, or take other adverse action against an employee who was accused of a crime if the charges have been dropped, dismissed, or otherwise resolved in the employee's favor. At least in New York, that same protection is not afforded to pending charges, but an employer motivated by mere allegations that an employee has perpetrated a crime could nevertheless find itself defending against claims of discrimination on other grounds. This includes a claim that the challenged action was the result of an employer policy or practice which adversely impacts one or more groups protected by Title VII, as addressed in recent enforcement guidance issued by the Equal Employment Opportunity Commission. If the accused employee belongs to a union, additional protections may be afforded under a collective bargaining agreement provision requiring “just cause” prior to disciplinary action. In regards to criminal convictions, several states restrict an employer’s ability to fire an individual because he or she has been convicted of a crime. In New York, an employer considering such action must evaluate eight factors, such as the nature of the offense, the time elapsed, the age of the individual when the offense occurred, and any evidence of rehabilitation. Only after evaluating these factors will an employer be in a sufficient position to determine whether a direct relationship exists between the offense and the job, or whether the person’s employment involves an unreasonable risk to property or safety, either of which would provide a defense to a discrimination claim based on a prior conviction. For either arrests or convictions, an employer should investigate the underlying facts to determine if an individual’s conduct justifies termination or some other employment action. Failure to do so may hurt the employer’s chances of successfully defending against allegations of discrimination, prevailing at arbitration, or avoiding negligent hiring or retention claims. In sum, employers must become familiar with the various legal obligations that arise when an employee is involved in domestic violence, either as the victim or the accused. If the employee is known to be suffering the effects of an abusive relationship, the employer should be prepared to grant leave or make other work-related adjustments to facilitate the employee's physical and emotional recovery or participation in the legal process (including obtaining an order of protection). If the employee is accused or convicted of a violent or threatening act, the employer should determine if the underlying conduct impairs his or her continued employment, recognizing that the law generally disfavors employment actions taken because of an individual’s arrest or conviction record. In either situation, merely ignoring the problem is never a good strategy.
Two months ago, many Americans were unfamiliar with the term “Ebola." It’s amazing how quickly things can change. Today, you cannot turn on your television or read a news article without hearing or seeing reference to this medical epidemic. The questions/answers set forth below are intended to assist employers with their own preparedness, as well as quell any potential workplace pandemonium in response to this outbreak. Of course, employers who operate in a healthcare setting will have additional obligations and issues to address beyond what is discussed here. Q: What is Ebola? Ebola Hemorrhagic Fever, referred to as Ebola, is a rare disease caused by a viral infection that can afflict both humans and nonhumans. If not properly treated or left totally untreated, Ebola can have potentially fatal consequences. According to the Centers for Disease Control ("CDC"), Ebola is spread through direct contact with blood or bodily fluids (i.e., saliva, mucus, sweat, tears, urine/feces, etc.) of an individual who is displaying symptoms of the virus. Ebola is not an airborne disease so the risk of transmission is relatively low if an individual has not been in close contact with the bodily fluids of an infected person. The most common symptoms associated with the onset of Ebola are: fever, fatigue, muscle pain, headache, and sore throat. As the illness progresses, infected individuals may also exhibit additional symptoms, including, but not limited to: nausea, vomiting, diarrhea, a rash, and impaired organ function(s). The initial symptoms typically manifest themselves within 2 to 21 days following exposure to the virus. Q: What employment laws should employers generally keep in mind in connection with this Ebola outbreak? Ebola is not simply a medical issue. If employers are not careful in how they prepare for and respond to this outbreak, the following employment-related laws could be implicated:
Americans With Disabilities Act (“ADA”) – e.g., disability-related inquiries, medical examinations, regarding employees as being potentially disabled, etc.;
Occupational Safety & Health Act (“OSHA”) – e.g., adhering to OSHA directives and guidelines regarding cleaning and decontamination, use of personal protective equipment ("PPE"), following blood-borne pathogen standards, complying with hazard communication requirements, other circumstances that may fall within the General Duty Clause, etc.;
Title VII of the Civil Rights Act (“Title VII”) – e.g., ensuring that employment actions and decisions do not result in discrimination, harassment, or retaliation on the basis of race, ethnicity, or national origin;
Family and Medical Leave Act (“FMLA”) – e.g., ensuring proper notification to employees of their FMLA leave rights and proper designation of FMLA leave, where applicable; and
National Labor Relations Act (“NLRA”) – e.g., respect employees’ rights to lawfully discuss and raise safety concerns regarding Ebola in the workplace.
Q: May an employer take the temperature of an employee whom the employer believes may have been exposed to the Ebola virus? In most cases, taking an employee’s temperature would constitute a medical examination under the ADA. Employers are not permitted to conduct medical examinations in the workplace, unless the particular examination is job-related and consistent with business necessity. Does the possible spread of Ebola in the workplace meet this standard? The CDC has issued a plethora of guidance and information concerning Ebola; however, the Equal Employment Opportunity Commission (“EEOC”), the federal agency whose guidance employers would rely upon in connection with workplace issues stemming from this outbreak, has yet to do so. As a result, the most analogous guidance that employers can refer to was issued by the EEOC in 2009 in connection with the H1N1 pandemic. We can infer from the 2009 EEOC guidance that an employer may be able to lawfully take an employee’s body temperature if the following conditions are present: (1) the Ebola outbreak becomes sufficiently widespread or pandemic (as determined by the appropriate federal, state, and local health authorities); or (2) an employee exhibits symptoms consistent with Ebola and there are other contributing factors – i.e., recent travel history, likelihood of exposure, etc. – to support an employer’s need to conduct this type of medical examination under the ADA. Q: To what extent may an employer ask an employee about his/her travel plans? Employers may inquire about an employee’s travel plans, provided that any such inquiries are narrowly-tailored. In this regard, employers may be permitted to ask whether the employee is traveling to a destination where the Ebola virus is prevalent or whether the employee has had contact with any individuals who may have been exposed to the Ebola virus. Employers should be mindful that inquiries into an employee’s travel plans, to the extent any are made, should be done on a consistent, non-discriminatory basis. Q: May an employer ask an employee who has returned from recent travel to West Africa (or another Ebola-afflicted region) to remain out of the physical workplace for a reasonable period of time (e.g., 21 days)? It depends on the circumstances. In general, the ADA prohibits employers from excluding an individual from the workplace for medical reasons, unless he/she poses a direct threat to himself/herself or others. Therefore, an employer may only instruct an employee to stay away from the workplace if the employer has reason to believe that the employee’s presence constitutes a risk. The governing standard here is one of reasonableness. For example, if the employee has traveled to a region where the virus is prevalent and exhibits symptoms of Ebola upon return to the United States, this could provide sufficient justification for the employer to temporarily keep the employee out of the workforce until either the virus incubation period has expired or the employee’s symptoms subside. In making this individualized assessment, employers must be careful not to regard or otherwise perceive an individual as being disabled based solely on an individual’s travel history or the presence of flu-like symptoms. Likewise, employers must also exercise discretion when seeking additional information from employees, so as not to elicit information regarding other potential medical conditions which would run the employer afoul of the ADA. Q: What recourse does an employer have if an employee refuses to come to work for fear of being exposed to the Ebola virus? OSHA standards require employers to maintain a workplace free from hazardous conditions that could otherwise lead to death or serious injury. Accordingly, an employee may have the limited ability to remove himself/herself from the workplace if he/she reasonably believes that there is a condition or other circumstance that that could cause significant harm. According to the CDC, the risk of transmitting the Ebola virus is relatively low, and there are only a handful of confirmed cases of Ebola presently in the United States. Therefore, at this juncture and without the presence of other factors (as noted above), there is little reason to believe that Ebola presents an imminent and serious danger to employees in most workplaces. An employee simply cannot refuse to come to work without articulating a rational and substantiated concern. Consequently, an employer has the ability to discipline employees who refuse to come to work and lack an objective, reasonable basis to justify their absence. Q: What short-term practical measures should employers consider implementing in the workplace? While different employers may choose to implement different cautionary measures depending on the nature of their business, the one universal and perhaps most effective way to approach this situation is to remain calm, objective, and level-headed. In other words, don’t panic. Once employers have committed to addressing the outbreak in this manner, they may also wish to consider the following:
Educate the workforce. Lack of information or misinformation spawns unnecessary hysteria. The more employees know about Ebola and how it is transmitted, the better equipped they will be to approach this outbreak in a pragmatic and reasonable fashion.
Remind employees about proper infection control practices (i.e., regular hand washing, sneezing/coughing etiquette, minimizing handshakes and other similar forms of contact where possible, etc.).
Follow OSHA guidance regarding cleaning and decontaminating work surfaces that may contain or have been exposed to blood or bodily fluids.
Consider whether telecommuting would be an effective infection control strategy for an employee who may need to remain out of the physical workplace due to Ebola-related concerns.
Review and consider whether any business that needs to be conducted abroad (to areas impacted by Ebola or close in proximity thereof) can either be postponed or conducted remotely.
Routinely monitor the workplace to prevent discrimination, harassment, and retaliation against employees as a result of this outbreak.
It remains to be seen just what type of impact the Ebola epidemic will have on workplaces in the United States. However, what is abundantly clear is that this situation is constantly changing. What may seem reasonable today may need to be modified tomorrow. As a result, employers must continue to be flexible in their approach to this outbreak and, where necessary, revise their strategies moving forward.
The Affordable Care Act creates new incentives to promote employer wellness programs. However, employers should not rush to establish such programs without first considering the implications of the Americans with Disabilities Act. Why? The Equal Employment Opportunity Commission has not yet issued guidance on how employers may structure their wellness programs to avoid violations of the ADA, despite placing this issue on its Semiannual Regulatory Agenda in May 2014. In fact, the EEOC does not anticipate that any administrative direction on this issue will be forthcoming in the immediate future. Despite a lack of guidance, the EEOC is actively pursuing litigation in this area. In this regard, the EEOC recently filed two cases against employers, claiming that their wellness programs violated the ADA.
In the first case, the EEOC filed a complaint against Orion Energy Systems, Inc., alleging that through its voluntary wellness program, Orion required an employee to submit to medical examinations and inquiries that were not job-related or consistent with business necessity in violation of the ADA. According to the EEOC, Orion’s wellness program required employees to complete multiple medical history forms and submit to blood work. One employee, Wendy Schobert, objected to participation in the wellness program. She asked whether participation was voluntary and whether the medical information would be maintained in a confidential file. The EEOC claims that Orion’s personnel director and Ms. Schobert’s supervisor told Ms. Schobert not to express any opinions about the wellness program to her co-workers. Ultimately, Ms. Schobert decided to opt out of Orion’s wellness program. As a result, the EEOC asserts that Orion failed to pay Ms. Schobert’s insurance premium costs because she did not participate in the wellness program and subsequently terminated her employment.
In the second case, the EEOC filed a complaint against Flambeau, Inc. Similar to the Orion case, the EEOC alleges that the employer’s wellness program violated the ADA by requiring employees to submit to medical examinations and inquiries that were neither job-related nor consistent with business necessity. Specifically, Flambeau’s wellness program required employees to complete biometric testing and a health risk assessment. As part of this process, employees needed to disclose their medical histories and submit to blood work and measurements. Flambeau covered approximately 75% of the health insurance premiums for employees who completed this voluntary process. One employee, Dale Arnold, was not able to complete the biometric testing and health risk assessment as scheduled because he was on a medical leave of absence. According to the EEOC, Mr. Arnold tried to complete the biometric testing and health risk assessment when he returned from his medical leave, but Flambeau did not permit him to do so and instead terminated his health insurance coverage. Since Mr. Arnold could not afford to pay the entire premium cost for his health insurance under COBRA, his health insurance was canceled.
Until the EEOC provides further guidance on this issue, employers should ensure that their wellness programs are truly voluntary. Moreover, employers should make sure to avoid either significant penalties for employees who choose not to participate and/or significant rewards for employees who do participate in these programs. Finally, any medical information that employers obtain through a wellness program should be kept confidential and should not be used as a basis for making employment decisions involving the employee.
On July 14, 2014, the U.S. Equal Employment Opportunity Commission ("EEOC") issued its Enforcement Guidance on Pregnancy Discrimination and Related Issues. The purpose of the Enforcement Guidance is to explain the EEOC’s current interpretations of the Pregnancy Discrimination Act of 1978 ("PDA") and the interplay between the PDA and the Americans with Disabilities Act ("ADA"). This interplay is important because although pregnancy by itself is not a disability under the ADA, it is often accompanied by one or more medical impairments which would entitle an employee to the ADA’s protections.
Perhaps the most significant take-away from the new Enforcement Guidance concerns those situations when the PDA and ADA do not overlap, i.e., when pregnant employees do not have ADA-covered disabilities. The EEOC’s interpretations make clear that it views pregnancy as a preferred status for enforcement and litigation purposes, such that pregnancy alone can give rise to certain job protections that would not be afforded to comparable non-pregnant co-workers.
As an amendment to Title VII of the Civil Rights Act of 1964, the PDA prohibits discrimination on the basis of an applicant's or employee’s pregnancy, childbirth, or related medical conditions. It requires that women affected by pregnancy be treated the same as non-pregnant employees who are “similar in their ability or inability to work.” Courts generally interpret this to mean that employers need not adjust their normal policies and practices to accommodate work restrictions caused solely by pregnancy. This is unlike under the ADA, which affirmatively requires that employers reasonably accommodate otherwise qualified individuals who are unable to perform the essential functions of their jobs due to disabilities.
Despite earlier court decisions, the EEOC Enforcement Guidance instructs that employers must generally honor work restrictions for pregnant employees, even if no ADA-covered condition exists to require a workplace accommodation. Similarly, if an employer provides light duty assignments to employees who experience on-the-job injuries (as many employers do to lower workers’ compensation costs), it is the EEOC’s position that pregnant employees must be given the light duty option. This is the EEOC's view even if light duty work is not available to similarly situated employees whose job restrictions result from an injury suffered outside of the workplace.
The EEOC issued its Enforcement Guidance less than two weeks after the U.S. Supreme Court decided to hear the case of Young v. UPS, Inc. The Fourth Circuit held in Young that the PDA does not require pregnancy-related accommodations or light duty assignments since this would effectively grant non-disabled pregnant employees preferential treatment relative to co-workers who are not otherwise covered by the ADA or an employer’s light duty policy (such as an individual who suffered a temporary, off-the-job injury) – a result which was never intended by Congress. Critics view the Enforcement Guidance as an attempt by the EEOC to politicize a question of judicial interpretation in advance of the Supreme Court ruling.
The Enforcement Guidance also describes the EEOC’s position on other pregnancy-related issues affecting the workplace, which will be discussed in a future blog article. In the meantime, as we noted in our January 2, 2013, blog post, the issue of accommodating pregnancy-related limitations will continue to be one of the EEOC’s top enforcement priorities. Accordingly, prudent employers should evaluate their internal policies and practices for compliance with current legal standards, and ensure that those policies and practices are being applied in a consistent and non-discriminatory manner.
The EEOC has also issued a Questions & Answers to summarize its new Enforcement Guidance, as well as a Fact Sheet for Small Businesses.