March Madness presents one of those occasions where your employees’ diets and exercise may fall by the wayside, and by the wayside, we mean potentially off a cliff. And when this happens, your workforce is increasing not just their weight and risk of disease, but it may also increase your cost to employ them. The productivity time you’re losing when they stop working to watch the games is nothing compared to the loss of productivity and increased health care costs due to poor health.
The EEOC recently published guidance for mental health providers describing their role in an employee or applicant’s request for a reasonable accommodation under the Americans with Disabilities Act (“ADA”). While the guidance is primarily aimed at providing information to mental health providers, it also presents the EEOC’s pronouncements on some fundamental precepts on the ADA and the reasonable accommodation process, which should interest employers and practitioners alike.
The obligation to accommodate a disabled employee is an ongoing one; a doctor’s note may not be a prerequisite to engage in the interactive process – those are two important lessons that employers should take away from a recent decision by a California Federal district court.
The employer community was sent into a frenzy with the Department of Labor’s release on May 18, 2016 of its final white-collar overtime regulations. Just two days before however, the Equal Employment Opportunity Commission also released its own final regulations regarding employer wellness programs.
Last month, a California state appellate court issued a decision that, as the dissent characterized, went “where no one has gone before.” In Castro-Ramirez v. Dependable Highway Express, Inc., the court held that California’s Fair Employment and Housing Act (FEHA) – California’s anti-discrimination law – requires an employer to provide a reasonable accommodation to a nondisabled employee who associates with a disabled person. This troubling and broad interpretation of the law, which effectively would import a caregiver accommodation requirement into the law, has certainly captured the attention of employers even outside this jurisdiction.
My colleague Tyrone Thomas, was quoted in the Bloomberg BNA article entitled Managing Bias Risks While Increasing Workplace Diversity in which he analyzes the threat of reverse racism claims arising from employer diversity efforts. Thomas notes that diversity strategies should be tailored to the workplace and provides steps for employers to develop well-crafted diversity plans. The article outlines examples of reverse bias claims, methods to avoid these risks, and employers’ options in implementing diversity strategies.
Last month, a district court in Wisconsin dealt a blow to the EEOC and the future of its proposed ADA wellness program regulations. In EEOC v. Flambeau, Inc., the court held that that an employer did not violate the Americans with Disabilities Act by requiring its employees to participate in a wellness program, including by undergoing health risk assessments and biometric screenings, as a precondition of participating in the employer’s health insurance plan.
Is passing gas now protected by our anti-discrimination laws? Over the past several years, we have written extensively (here, here, here and here) about the possibility of obesity discrimination lawsuits becoming the next wave of disability discrimination litigation, and now we have a new test case in New Jersey, and this time with a unique twist or two: a terminated employee claiming that his “extreme gas,” symptomatic of surgery related to his “disability” of obesity, led to his alleged unlawful termination, and the employee’s wife (who also happens to be his co-worker) claiming in a federal lawsuit that she was constructively discharged because of her association with her obese husband. Continue Reading Something is Rotten at the Pork Roll Company … and it’s not the Pork Rolls: Flatulent Employee (and his Wife) Bring Claims for Disability Discrimination
Over the course of a career many workers experience the displeasure of dealing with a difficult supervisor — the type of individual whose mere presence in the workplace is a source of dread and whose name inspires feelings of fear and loathing whenever it appears on a subordinate’s caller ID or the sender line of an email. But according to the California Court of Appeals, the apprehension this situation engenders does not qualify as a disability and does not give rise to a cause of action under California’s Fair Employment and Housing Act.
Employers are generally aware of the obligation under the Americans with Disabilities Act to engage in an “interactive process” with employees who require accommodations in order to perform their duties, but identifying the point at which this obligation is met is far from an exact science. In two recent decisions, the Second and Eleventh Circuit Courts of Appeal clarified that an employer must only offer a reasonable accommodation that does not unduly burden business operations, and need not continue to provide more generous accommodations or investigate alternative accommodations that an employee has not proposed.