Posts Tagged ‘ADA’

Fragrance Sensitivity in the Workplace

Thursday, April 6th, 2017

Scent aversions or fragrance sensitivities as they’re more commonly known can cause significant issues in the workplace.

People with a fragrance sensitivity can have a variety of reactions from sneezing/runny nose to severe migraines and asthma attacks.  Sensitivity can be triggered by anything from perfumes/colognes, room fragrances, cleaning materials or cosmetics. Although fragrance sensitivity in and of itself might not be covered under the Americans with Disability Act (ADA) some conditions may be triggered by fragrance sensitivity (such as asthma or migraines) or an employee’s fragrance sensitivity may disrupt one or more life activities.  Therefore, employers are cautioned to handle fragrance sensitivities appropriately to ensure compliance with ADA, and it just makes sense if there is an easy fix to have your employees comfortable.

There are numerous options for helping an employee with a fragrance sensitivity, all of which, need to begin with having an open conversation with the employee suffering from the sensitivity issue.

Find out if the employee is aware of specific triggers (a specific perfume or room deodorizer) and work to eliminate the trigger. Some employers find that having conversations with staff or emailing a memo asking employees to refrain from using specific products is the best resolution for the issue.

Provide a well-ventilated work space for the employee. This may mean moving an employee to an office with more air-flow available or a private office where the employee can close the door if needed.

Allow for “fresh air” breaks

Consider a “fragrance-free policy” in the office. Sample language may include:

“This is a fragrance-free office. Please help us to accommodate our co-workers and clients who are chemically sensitive to fragrances and other scented products. Thank you for not wearing perfume, aftershave, scented hand lotion, and or similar products.”

Of course, there may be cases when you cannot accommodate a fragrance-free workplace, such as chemicals used in the course of an employee’s daily work, etc. CAI suggests handling each request regarding a fragrance sensitivity on a case by case accommodation.

CAI offers HR, compliance & people development solutions for more than 1,100 North Carolina employers. Learn how CAI can help your company build and engaged, well-managed and low-risk workplace.

Emily’s primary area of focus is providing expert advice and support in the areas of employee relations and federal and state employment law compliance as a member of the Advice & Resolution team for CAI. Additionally, Emily advises business and HR leaders in operational and strategic human resources areas such as talent and performance management, employee engagement, and M&A’s. Emily has 10+ years of broad-based HR business partnering experience centering around employee relations, compliance & regulatory employment issues, strategic and tactical human resources, and strong process improvement skills

Don’t Underestimate the Power of Job Descriptions in ADA Legal Challenges

Thursday, September 3rd, 2015

CAI’s Advice and Resolution team member Pat Rountree shares valuable information regarding job descriptions and compliance with the ADA

Pat Rountree, HR Advisor

Pat Rountree, HR Advisor

The terminology essential functions of the job has been around since the Americans with Disabilities Act (ADA) became law in 1993.  However, the significance of making sure that you have current job descriptions for each position that lists the essential duties, physical, and mental requirements greatly increased with the recent amendments to the ADA.  Also, technology advances have resulted in a faster pace of job change over the last several years.

Employment law attorneys continue to stress that job descriptions that identify the essential functions of the job are the first line of defense when employers are trying to defend undue hardship decisions on inability to make accommodation, and terminations for inability of employees to do the job.

At the most recent CAI/Ogletree Employment and Labor Law Update, Attorney Gretchen Ewalt recommended that employers use the employee performance review time to go over the job description with the employee annually and determine if changes need to be made to accurately reflect the current job responsibilities.

Another recommendation in light of recent case law is to document in the job description if the job requires the employee to be present at the worksite and to document the reasons why.  It may sound ridiculous—of course attendance at work is required.  However, with requests for accommodation to work from home, it is important to document when actual presence at work is required as in the EEOC vs. Ford Motor Company.  The employee, a resale buyer, requested to work from home as an accommodation, but the employee’s lack of availability for impromptu meetings on important issues was an undue hardship for the employer.  The court sided with the employer and noted in their decision, in most jobs, especially those involving teamwork and a high level of interaction, the employer will require regular and predictable on-site attendance from all employees.  To read the full court decision, see http://www.ca6.uscourts.gov/opinions.pdf/15a0066p-06.pdf.

Obviously with the advance of technology, working from home may be a reasonable accommodation for some jobs.  However, for those jobs that require person-to-person contact on the job, it is important to document.

How long has it been since you actually reviewed job descriptions with incumbents to determine that they are still valid?

Considerations in determining essential functions include:

  • The importance of the function to the overall job
  • The number of employees available to perform it
  • The time spent on the function
  • The degree of skill required

Other kinds of evidence that EEOC will consider include:

  • The actual work experience of present or past employees in the job
  • The consequences of not requiring that an employee perform a function
  • The terms of a collective bargaining agreement.

For additional guidance on this topic, please reach out to CAI’s Advice and Resolution team at 919-878-9222 or 336-668-7746.

Drugs, Alcohol and the ADA

Thursday, March 12th, 2015

Advice and Resolution Team Member John Gupton shares helpful information about the ADA and what the law allows in regard to drugs and alcohol.

John Gupton, General Counsel and HR Advisor

John Gupton, General Counsel and HR Advisor

In general, the Americans with Disabilities Act (ADA) prohibits covered employers from discriminating against a “qualified individual with a disability” in regard to job applications, hiring, advancement, discharge, compensation, training, or other terms, conditions, or privileges of employment. The ADA requires employers to make “reasonable accommodations” to the known physical or mental limitations of an otherwise qualified individual with a disability, unless to do so would impose an “undue hardship” upon the employer.

The ADA specifically allows employers to prohibit the use of alcohol or illegal drugs in the workplace and require that employees not be under the influence. Employers may test for the use of illegal drugs under the ADA. Employers also may maintain and enforce rules prohibiting employees from being under the influence of alcohol in the workplace and may conduct alcohol testing for this purpose if they have a reasonable belief that an employee may be under the influence of alcohol at work.

While current illegal drug users and alcoholics who cannot safely perform their jobs are not protected by the ADA, those who have been rehabilitated or are participating in a supervised rehabilitation program and are not currently using drugs or who are erroneously regarded as engaging in the illegal use of drugs, are covered. Thus, an employer may be required to make reasonable accommodation to recovering alcoholics, for example, by allowing time off to attend Alcoholics Anonymous meetings.

For more information about the ADA, go to http://j.mp/dis-d. If you have questions about the ADA, please contact a member of CAI’s Advice and Resolution team at 919‑878‑9222 or 336‑668‑7746.

Key Learnings from 5 Different Areas of State and Federal Employment Law

Thursday, May 22nd, 2014

PPT Slide ELLU 2014More than 430 HR professionals and company executives attended CAI’s 2014 Employment and Labor Law Update. Participants traveled to the McKimmon Center in Raleigh for the two-day event on May 14 and May 15 to receive the latest updates in state and federal law.

Knowledgeable attorneys from Ogletree Deakins, as well as an expert from CAI, shared important changes in the law at the conference. Topics the presentations covered included workplace investigations, FMLA, wage and hour issues, the ADA, and more.

Below is some of the information, which covers five different areas of employment law, discussed at the conference:

Expect more aggressive investigative tactics from the EEOC:

  • The EEOC is making extensive requests for information not germane to the charge at hand
  • Increased threats and uses of subpoenas
  • Increased demand for on-site investigations
  • During on-site investigations, EEOC increasing demands to review signage, personnel files and make general employee inquiries unrelated to charge
  • Increased demands for on-site tours and witness interviews
  • Aggressive behavior in settlement negotiations

Enforcement Trends in Immigration Law:

  • There’s nothing random about audits from ICE
    • Most audits are lead-driven and are discovered by a tip-line complaint, local law enforcement data sharing, and federal agency data sharing
  • Avoid these common I-9 mishaps:
    • Using a wrong or outdated I-9 form
    • Not completing Section 1 or 2 in the specified time frame
    • A new hire did not sign Section 1
    • Someone else completes Section 1 but they do not have a Preparer or Translator Certification
    • Hire date is missing
    • Employer’s address is incomplete

Updates in the ADA:

  • Leave as a reasonable accommodation
    • Granting a leave of absence may be considered a reasonable and required accommodation under the ADA if no other sufficient reasonable accommodation is available
    • Maximum leave policies don’t satisfy the ADA. However, that doesn’t mean you can’t have one. You will just have to consider the ADA before discharging an employee for exceeding the maximum
    • An accommodation is “reasonable” if it “seems reasonable on its face, i.e., ordinarily in the run of cases”—in other words—if it appears feasible or plausible

Updates in NC Legislation—Bills of Interest:

  • House Bill 846: Job and Education Privacy Act– would prohibit employers and colleges from requiring individuals to disclose access information to personal social media and email accounts
    • Passed the house on May 16, 2013 and is in the senate; eligible for consideration in the 2014 session
  • House Bill 872: Protect NC Right-To-Work – declares it unfair trade practices for any contract to require a contractor or sub-contractor to use unionized labor. Contracts involving federal funds would be exempt
    • Passed in the House on May 2, 2013 and is in the senate; eligible for consideration in 2014 session

The NLRB is cracking down and scrutinizing company rules in several business areas, including social media:

  • Avoid the following in your company social media policy to stay on good terms with the NLRB
    • Prohibiting discussion of wages, benefits, and other terms and conditions of employment
    • Prohibiting anyone from sharing confidential information without clarifying the definition
    • Prohibiting “no-disparagement” or words of “negative impact”
    • Vague restrictions about inappropriate conversations
    • Prohibiting the use of trademarks or company logos

For additional information on CAI’s conferences, please go to https://www.capital.org/eweb/DynamicPage.aspx?site=cai&webcode=cai-training-conferences.

 

Know What Regulations To Consider For Your Corporate Wellness Plan

Thursday, August 22nd, 2013

The post below is a guest blog from Twyla Hutchins, RN, BSN, COHN-S who serves as Health Management Officer for CAI’s employee benefits partner, HCW Employee Benefit Services.

Twyla-HutchinsAs more companies add wellness programs to keep healthcare claim costs down, they should consider what compliance regulations need to be followed for successful program implementation. Otherwise, workplace wellness plan savings can vanish due to penalties resulting from a failure to follow the rules.

There are a few key rules to remember when setting up and monitoring a corporate wellness program that can reduce the likelihood of violations allegations for employers. Here is an overview of what to factor into an employee wellness program.

Americans with Disabilities Act (ADA)

The ADA prohibits employment discrimination against disabled individuals and limits the circumstances in which an employer may require physical examinations or answers to medical inquiries. For wellness plans to comply with ADA guidelines, voluntary medical exams and inquiries are permitted if:

  • Participation in the program is voluntary;
  • Information obtained is according to the confidentiality requirements of the ADA; and
  • Information obtained is not used to discriminate against an employee.

The gray area here is determining exactly how “voluntary” is defined, as the Equal Employment Opportunity Commission (EEOC), which oversees ADA complaints, has not issued formal guidance. However, if the wellness program requires an employee to complete a health risks assessment to become eligible for the group, the health plan would violate the ADA. Additionally, a wellness program that complies with HIPAA’s wellness regulation may not meet the requirement of the ADA.

COBRA

COBRA allows employees who lose their health benefits to choose to continue benefits provided by their group health plan for limited periods of time under certain circumstances. For wellness programs that provide physical examinations, cholesterol screenings, flu shots and similar benefits that qualify as medical care, these offerings can trigger the program to be a group health plan and thus incur COBRA responsibilities for participants.

Internal Revenue Code (IRC) Taxation

If you are offering incentives to reward employees who reach or surpass certain wellness plan goals, some may be considered taxable income, such as cash or gift cards. Other incentives may avoid taxation, including lower employee premium contributions, smaller deductibles for employees, and employer contributions to company savings and retirement accounts.

Incentives such as cash and prizes are considered taxable unless they qualify as “de minimis” in value by the Internal Revenue Service. As with the EEOC and the “voluntary” designation, what qualifies legally as “de minimis” is unclear, with amounts ranging from $10-$50 in gifts being offered by businesses with wellness programs that they believe fit this definition.

State Laws

North Carolina is one of 31 states with a lawful products protection law prohibiting discrimination against employees who use products such as tobacco outside the workplace. Employers can prohibit smoking on company property, however, as well as refuse to provide smoking breaks or other accommodations to smoking employees.

If an employer uses a wellness program that is part of an employee welfare benefit plan subject to the Employee Retirement Income Security Act (ERISA), then North Carolina’s lawful products law may be preempted. Employers that are considering charging tobacco users a higher premium for health insurance should be aware of these issues.

HIPAA

Rules for the Health Insurance Portability and Accountability Act of 1996 (HIPAA) require that, a group health plan may not discriminate against any individual or dependent because of a “health factor.” Health factors include health status, medical condition (including both mental and physical illness), claims experience, receipt of healthcare, medical history, genetic information, evidence of insurability, and disability. A group health plan may vary benefits, however, including premiums based on whether an individual has met the standards of the wellness program, if the wellness program itself meets certain requirements.

This is a tricky distinction to make, and the rules of what qualify continue to change. HCW is developing tools and a webinar to explain further the impact of HIPAA and its new rules that go into effect on Jan. 1, 2014. These items will be available in the near future.

Be cognizant of all these regulations and how they can affect your employee wellness program. If you need more immediate information on any of these considerations, contact HCW at (919) 403-1986 or visit us online.

7 Things You Should Know From the 2013 Employment and Labor Law Update

Thursday, June 6th, 2013

2013ELLU-FlashCAI hosted its annual Employment and Labor Law Update at Raleigh’s McKimmon Center on May 22 and May 23. More than 430 people attended the conference to hear the latest updates in state and federal law.

Attorneys from Ogletree Deakins imparted important information to conference attendees about issues currently facing employers. Some of the topics included health care reform, unemployment insurance reform, North Carolina legislative updates, and wage and hour audits.

Below is a list of some of the pertinent information shared at the conference that company leaders should know:

Health Care Reform

1) The “pay or play” mandate of the Affordable Care Act  applies to “Applicable Large Employers”

  • An “Applicable Large Employer” is an employer with 50 or more full-time employees
  • “Employer” includes all entitles within the same controlled group of entities, including parent-subsidiary relationships and brother-sister relationships.

2) According to the “pay or play” mandate of the Affordable Care Act, Applicable Large Employers can choose to:

  • “Pay” by not offering coverage to all of their full-time employees and their dependents  OR
  • “Play” by offering coverage to their full-time employees and their dependents

3) Penalties Associated with the “pay or play” mandate include:

  • “’No Coverage‘ penalty”: Employer fails to offer coverage to all full-time employees and their dependents AND one or more full-time employees purchases coverage through the Exchange AND is eligible for premium tax credit or subsidy
    • § Penalty is $2,000 per full-time employee excluding the first 30 full-time employees
  • Employers that choose to “play” can still be subject to a penalty if they offer “Inadequate Coverage.” For example:
    • § Employer offers coverage to all of its full-time employees and their dependents but that coverage is NOT “affordable” OR does not provide “minimum value”
    • § Any full-time employee purchases coverage through the Exchange and receives a subsidy or tax credit

Complying with the Americans with Disabilities Act (ADA)

4) The ADA prohibits discrimination against qualified individuals with a disability, and it requires employers to make reasonable accommodations for disabled individuals where no undue hardship results for the employer.

5) Employee must be a qualified individual with a disability, meaning:

  • Must meet qualification standards for position
  • The individual must be qualified to perform the essential functions of the job with or without reasonable accommodation
  • Employers do not need to eliminate essential job functions

Workplace Violence

6) Workplace violence is any act of aggression, or threat of an act, that threatens the safety, security, or well-being of an individual who is at work or on duty.

  • One in six violent crimes occurs at work, including 7 percent of all rapes, 8 percent of all robberies and 16 percent of all assaults

7)  Workplace bullying is defined as repeated infliction of intentional, malicious, and abusive conduct that interferes with a person’s ability to do his/her work and is substantial enough to cause physical or psychological harm and a reasonable person would find hostile or offensive.

  • There is a strong correlation between bullying and violence
  • 43 percent of bullying comes from coworkers
  • 25 percent of bullying targets have protected status (other than gender)
  • 80 percent of bullying targets are women

If you are interested in attending CAI’s next Employment and Labor Law Update in 2014, please contact an Account Manager at 919-878-9222 or 336-668-7746.

Asperger’s Syndrome in the Workplace

Thursday, October 25th, 2012

The following is a guest post from Michael John Carley, the Executive Director for the Asperger Syndrome Training & Employment Partnership (ASTEP) and the author of “Asperger’s From the Inside-Out.”

1 in 88 are the new rates for autism spectrum prevalence. So if the math holds true (and whether you know it or not), if you’re a large company you already have many people with Asperger’s Syndrome (AS) working for you. They may be (a) disclosed, (b) diagnosed but undisclosed, or (c) they may not even know themselves that they have AS. But no matter what, their spectrum-specific challenges may be presenting as issues for managers, if not on the desks of your HR staff.

What to do? Well, there’s a lot you can and will want to do, as many of these folks have remarkable abilities that can help your company grow.  And as more and more young people with AS are earning college degrees, it might soon become a large enough portion of the workforce that is hard to ignore.

What is AS?

Asperger Syndrome is a hidden disability that is part of what is now referred to as the autism spectrum. While no two individuals with AS will ever present as alike, AS is often identified by social awkwardness, difficulties with eye contact, motor skills differences, and an oddly-exhibited use of the spoken word. But I, as an adult with AS, can state that internally it simply feels like a difference in processing thoughts, emotions, and experiences. Luckily, most individuals with AS also have average to above-average IQs and exhibit a remarkable attention to detail, especially if it pertains to a special interest of theirs. Furthermore, they’re loyal and don’t shop their resumes around very much.  If they’re happy where they are, you may have a dedicated employee for life.

Possible strengths include:

  • Attention to detail
  • Good concentration on routines and procedures
  • Memory for facts and figures
  • Logical approach to tasks
  • Honesty
  • The aforementioned loyalty

Possible challenges include:

  • Social interactions
  • Intense focus on limited interests
  • Literal-mindedness
  • Inflexibility
  • Anxiety
  • Troubles with empathy

Now That I Think About It, I Believe My Company Could Have Some Workers with AS. But What Should I Do?

Well, maybe nothing, especially if everything’s working out just fine. But if there are some problematic employees whom you suspect might have AS, there is much that you can do.

First off, you likely do not need to have them disclose, though that is always easier because that allows you to work with the employee rather than around them regarding solutions. And you should never tell someone you suspect they might have AS (as it’s against the law to do so in the workplace). But disclosed or undisclosed, you do need to manage them differently.

Are the new management strategies that difficult to learn? No, as they all mostly revolve around communicating more clearly.

Three Key Concepts: Hidden Curriculum, Executive Functioning, and Sensory Issues

Hidden Curriculum

The Hidden Curriculum is information that you have learned instinctively, but that someone with AS has to be taught. It includes understanding non-verbal behavior, such as tone of voice and body language. Many people also refer to this as the unwritten rules of social interaction. The notion of what is socially appropriate and inappropriate, or the ability to understand what another person might be thinking . . . these lessons often escape the individual with AS. So if you find yourself thinking things like “I shouldn’t have to tell him…,” or “Doesn’t he know that…” then chances are you’re dealing with a Hidden Curriculum issue.

Solutions revolve around being clear, such as:

  • Establishing rules (such as “never comment on the physical appearance of someone else”). Rules are clear for folks like us, and preferred as they require no reading between the lines
  • Writing down what the expectations are of the employee with a given task
  • Limiting your use of idioms, soliloquys or sarcasm (it might go over some of our heads)
  • A very detailed job description

Executive Functioning

These are the mental processes that allow us to put into practice what intelligence we have. These difficulties can be identified through challenges with organization, multi-tasking, time-management, and prioritization and can result in some individuals appearing slow, or even less intelligent than they really are. While many individuals with AS can visibly hyper-focus on a task, others with Executive Functioning challenges can appear the opposite given the same task.

Solutions revolve around being clear, such as:

  • Writing down what the expectations are of the employee with a given task
  • A very detailed job description
  • Flexible work hours
  • Mentoring
  • Going slow when verbally outlining tasks and priorities
  • Encouraging employees to take notes
  • Additionally confirming as an afterword that the employee understands the tasks assigned

 Sensory Issues

People on the autism spectrum frequently navigate at least one atypical issue having to do with the five senses. For some, a sensitivity to certain types of lighting can produces headaches, certain sounds might make others have to cover their ears, and many people—though they might appreciate deep-tissue contact, such as in a hug—truly do not react well to light touch, as in an unexpected tap on the shoulder.

Also, the concept of stimming—involuntary or semi-voluntary body movements, sometimes including the production of noises—can be viewed as sensory issues as stims are usually deployed as a result of environmental factors (the most well-known is the way some more-challenged autistic people flap their hands). Though potentially alarming to those with no experience with this population, stims generally are a healthy way to combat stresses, and are often an expression of pleasure, not anxiety. Furthermore, most college-educated spectrum graduates have long since learned how to cloak these behaviors.

Solutions revolve around simple, atmosphere adjustments, such as:

  • Flexible work hours
  • Lighting adjustments
  • Workspace adjustments such as moving their workspace to a quieter space in the office
  • Working from home (less simple, but a true solution for a dedicated employee with more serious sensory challenges)

With the Hidden Curriculum, Executive Functioning, and Sensory Issues there is the potential for added anxiety as one tries to navigate a social world (yours) that confuses them. Allowing for breaks, so the person can find a quiet room or go for a walk, will truly help to ease the stress caused by emotional, sensory, or executive overload.

Train, Train, Train

Businesses rightly won’t hire or attempt to retain employees with AS if they don’t have the confidence that they can make the relationship work. Trainings—be it for managers, HR staff, or recruiters—is tantamount to a company successfully increasing its cultural competence.

In Summary

If you look back at the solutions for managing and better accommodating those three key areas, you should see the (sometimes repeated) emphasis on clear communication. While perhaps time-consuming for managers, the expense pales in comparison to other accommodations. And what manager wouldn’t become a better manager for his non-AS colleagues if he or she learned to communicate better?

And did I mention that some of us are quite intelligent, honest, and loyal?

Michael John Carley can be reached at mjcarley@asperger-employment.org

Photo Source: Victor1558

4 Things Employers Should Know About the ADAAA

Tuesday, April 17th, 2012

Congress passed the Americans with Disabilities Act Amendments Act  (ADAAA) in 2008 with the intent to focus trials on whether discrimination occurred instead of whether an impairment is a disability under the Americans with Disabilities Act (ADA). With the burden of proof now shifted to the employer, it is important for HR departments to be aware of and up to date with the act’s revisions. Knowing the details of the ADAAA will help your organization stay compliant with the law and avoid a lawsuit and accompanying fees.

Here are four things you should know about this act—

1. The definition of a disability is broader.

The original ADA stated that a disability was anything that substantially limits a major life activity. Now that the list of “major life” activities has expanded, more employees are covered under the revised act and can potentially claim a disability.

2. Mitigating factors do not determine whether an employee has a disability.

Under the ADAAA, mitigating measures, which can reduce or eliminate a disability’s effect can’t be considered when an employer or a court is determining whether an employee has a protected disability. Eye glasses are the one exception to this rule.

3. The definition of “reasonable accommodation” is unchanged.

The act clarifies that only individuals who have an impairment that limits a major life activity and a record of the impairment are eligible to receive reasonable accommodation. It is important to note that employers have flexibility under this section of the act. They are not required to fulfill the employee’s exact request if suitable alternatives are available.

4. Documenting is your best protection.

As with most human resources situations, documenting all steps in your process is key to protecting yourself against an unfavorable lawsuit outcome. Before making any reasonable accommodations for your employees, you should request from them documentation by a medical professional affirming their disability. Document all the steps you take in ensuring that your company is doing its best to accommodate employees without undue hardship on its end.

With the ADAAA in full effect, employers should review their handbook policies regarding disabilities and requesting reasonable accommodation. Your company’s employee handbook should include the new definition of a disability. Training your managers with direct reports on how to adequately respond to disability mentions and accommodation requests will also help you stay out of the courthouse.

Labor and employment lawyers from Ogletree Deakins will discuss the ADAAA in more detail at CAI’s 2012 Employment and Labor Law Update on May 2 and May 3. In addition to a review of the ADAAA, conference presenters will give participants updates on the most recent news and changes in state and federal employment laws. Additional topics include: workers’ compensation, healthcare reform, FLSA exemptions and more. Register for the conference today: www.capital.org/lawupdate.

Photo Source: Leo Reynolds

Tackling ADA and FMLA at the 2011 Triad Employment Law Update

Tuesday, December 6th, 2011

CAI hosted its annual Triad Employment Law Update at the Koury Center in Greensboro on November 9.  More than 150 HR professionals and company executives attended the conference to receive important updates on the latest developments in state and federal employment laws and regulations.

The sold-out conference featured presentations from law firm and conference partner Constangy, Brooks and Smith, LLP. Presentation topics ranged from correctly calculating compensable employee work hours to knowing how employees’ use of social media affects organizations.

Robin Shea, attorney and partner for Constangy and a conference favorite, presented information on two pertinent employment regulations: The Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA).

As a regular presenter at the Triad Employment Law Update, Robin says, “The conference is a great, cost-effective, and enjoyable way to ensure that your company is up to date on the latest developments in labor and employment law.”

Evaluations from the conference showed that guests enjoyed the speakers because they were knowledgeable, provided great information and kept them engaged. Multiple conference attendees commented positively on Robin’s presentation. She tried to keep her focus on the practical side of staying compliant while also making sure to entertain her audience. Knowing that employers have many questions related to ADA and FMLA, Robin avoided being overly legalistic and technical when she presented.

“Before the ADA Amendments Act (ADAAA) changes took effect in January 2009, the ADA had become almost a dead letter — it applied to such a narrow population of individuals that employers didn’t have to worry much about ADA compliance. Now that the definition of ‘disability’ has expanded so dramatically, the ADA has become extremely significant, and employers are rusty in applying it,” Robin said when asked why employers have so many questions related to the two acts.

She warns employers against punishing employees for absences that qualify as FMLA events 99.99 percent of the time. If a company does decide to take action for the remaining .01 percent, Robin suggests consulting an employers’ association or legal counsel beforehand.

Robin says the most important concept for understanding the ADA is that virtually every employee is “disabled” according to the definition found in the law.

“Be sure to consider all requests for reasonable accommodations. ‘Consider’ does not mean ‘grant,’ but do not reject any accommodation request out of hand,” she says about staying compliant.

Employers need to be aware of all the components that make up FMLA and the new ADA. Robin says that the federal government is looking for new test cases, so companies should handle these employee occurrences seriously and properly. She says that if you are not sure on what to do, ask for help before you do anything irreversible.

Constangy lawyers shared additional information on subjects important to employers. They also answered specific workplace questions from conference participants in the “Ask an Attorney” segment of the event.

“In our current regulatory and litigation climate, the value of this [conference] cannot be overemphasized” Robin says.

For more information on recent updates on FMLA and ADA or other employer related laws, please contact a member of CAI’s Advice and Counsel at 919-878-9222 or 336-668-7746. To get details on the next Triad Employment Law Update, please contact an account manager at the numbers above.

Photo Source: D. Begley

Employers, Don’t Be Overzealous with Your Wellness. Beware of the ADA and Everything Else.

Tuesday, November 1st, 2011

The post below is a guest blog from Robin Shea who serves as Partner for Constangy, Brooks & Smith, LLP, CAI’s Partner for the 2011 Triad Employment Law Update.

Do you want a healthy workforce? Of course! But don’t overdo it. A too-aggressive wellness program may make your company sick in the long run.

Employers and their insurance companies love wellness programs. They result in reduced premiums as well as (presumably) fewer big-money claims because they encourage employees to take better care of themselves.

Many employers offer “carrots” to employees to participate in wellness programs. There is no legal problem with “positive” incentives as long as certain requirements are met.

But some employers wield a “stick” as well. They actually penalize employees who refuse to participate. The City of Chicago has recently announced a wellness program that will require employees to pay $50 a month to opt out. That’s a lot of money for most people. Can penalties like this cause problems for employers? The issue isn’t settled, but I have some concerns. 

1. The ADA. First, the Americans with Disabilities Act (even the “old” version) does not allow employers to ask for medical information from current employees unless the request is “job-related and consistent with business necessity.” This usually means that there has to be a job-related problem that might be related to a medical condition, or perhaps a doctor’s note saying that the employee cannot perform his or her duties because of a medical condition. The employer generally cannot ask for medical information without a reason. Even when there is a good reason to ask, the medical inquiry must be confined to the work-related issue.

(For example, if an employee in a heavy-lifting position claims a bad back, the employer cannot require him to get a complete physical.)

The ADA does have an exception for medical information collected pursuant to a voluntary wellness program. But if the employer is hitting individual employees for as much as $50 a month if they decline to participate, how “voluntary” is that program?

At least two courts have found that “negative reinforcement,” such as Chicago’s, falls under a different exception in the ADA: the section that deals with “bona fide benefit plan[s] that are based on underwriting risks, classifying risks, or administering such risks that are based on or are not inconsistent with state law” and that are not a “subterfuge” to evade ADA compliance.

In one case, decided in 1998, the court upheld termination of an employee for insubordination who refused to provide medical information. In the other, decided this year, the court upheld a biweekly $20 deduction from pay for employees who chose not to participate in the wellness program. In other words, both of these courts found that the “voluntary wellness” exception wasn’t even an issue because wellness programs connected with health insurance plans fell within a completely different exception to the ADA’s prohibitions on medical inquiries.

With all due respect to these courts, I have a question: If every wellness program associated with a health insurance plan is automatically excluded from the ADA’s general prohibition on medical inquiries, then why does the ADA even have the “voluntary wellness” provision? Aren’t these courts effectively reading that provision right out of the ADA?

Another ADA concern I have is the fuzzy line (getting fuzzier every day) between lifestyle choices and actual or “regarded as” disabilities within the meaning of the ADA. If, say, someone who really likes food develops a weight problem, then she may become a “disabled” individual within the meaning of the ADA, and especially as amended by the ADA Amendments Act. It was reported this week that our friends at the U.S. Equal Employment Opportunity Commission (EEOC) filed suit against an employer for terminating a morbidly obese employee because of his obesity. The EEOC is contending that the employee’s obesity is a “disability” within the meaning of the ADA Amendments Act and that the company refused to consider reasonable accommodations, such as transfer to a job with lighter physical demands. (The company has thus far declined to comment, so all we have right now is the EEOC’s side of the story.)

Even alcoholism is a “disability” entitled to an intermediate level of ADA protection.

So there are some reasons I worry about employers who are too “enthusiastic” about promoting wellness. In any event, the ADA isn’t the only law that employers have to worry about.

2. “Lifestyle” or “lawful products” statutes. A number of states have so-called “lifestyle protection” or “lawful products” statutes, which essentially prohibit discrimination against applicants and employees based on lawful activities engaged in, or use of lawful products, during non-working hours. Even the narrower “lawful products” laws protect smokers as well as, presumably, drinkers, gourmands, skydivers (parachutes are “products,” aren’t they?), bungee-jumpers (bungee cords are “products,” aren’t they?), and other individuals who engage in risky but legal behavior. Yes, these laws usually contain exceptions, but employers need to be aware of their existence and make sure that what they’re doing fits into one of the exceptions.

There has been a lot of publicity lately about certain employers who have refused to hire anyone who smokes. One should assume that these employers are in states that do not have “lawful products” statutes. Don’t think that you can do it just because they did. If your friends all jumped in the lake, would you do it, too?

3. The GINA. Title II of the Genetic Information Nondiscrimination Act prohibits employers from “using, acquiring, requiring, or disclosing genetic information” with certain strictly defined exceptions. It also prohibits discrimination against individuals based on their genetic information. The statute defines “genetic information” so broadly that any family medical history information about the individual’s first four degrees of kinship — plus spouses and adopted children — is included.

The GINA has some exceptions for genetic information disclosed in connection with voluntary wellness programs, but the GINA provisions focus on the right of the employee to decline to answer questions that seek “genetic information.” (In other words, the GINA regs say it is all right for a wellness program to request “genetic information” as long as individuals aren’t excluded from the program if they decline to answer questions asking for “genetic information,” the “genetic information” requests are segregated from other requests, clear disclaimers are provided, and other requirements are met.) If the wellness program is not truly “voluntary,” then arguably the GINA’s permissive provisions would not apply.

The moral of the story: don’t be overzealous with your wellness! Reasonable minds differ on this subject, but in light of the ADA(AA), state laws, and the GINA, I recommend that employers keep the focus “positive” and avoid punishing those who continue to burn the candle at both ends.

CAI’s 2011 Triad Employment Law Update, scheduled for November 9 at the Koury Center in Greensboro, will provide additional information on ADA and how to handle the off-duty conduct of employees.  The conference will also provide news and material on several legal topics relevant to employers, including Wage and Hour, Workers’ Comp Reform, FLSA and Immigration. Register today at www.capital.org/triadlaw.