What is happening in employment law? We will be providing you with quick employment law updates on a bi-monthly basis in a new series called “The Bubbler.” It will let you know what’s what and who’s who in the continually-evolving, ever-important, hard-to-keep-track-of employment law world. The Bubbler delivers current events and other important news to our readers without the time or the interest to piece through the recent legislation, the ever-growing release of regulations and other agency guidance and the lengthy court decisions. We’re your colleagues at the water cooler who tell you just enough to pique your interest (but then provide links to satisfy your curiosity). Enjoy!
As our readers know, we have been monitoring decisions regarding the ability of employers to take disciplinary action against employees for using marijuana at work (like this decision here). The most recent high court to weigh in on this topic is the Massachusetts Supreme Judicial Court, which looked at whether an employer may violate that state’s anti-discrimination law when it fires an employee because of a failed drug test based on the employee’s use of medical marijuana. The Court concluded that employers must accommodate medical marijuana users in the normal course under these circumstances to avoid a violation of that law. We discuss this important new decision – Barbuto v. Advantage Sales and Marketing, LLC – below.
In a decision that will provide some solace to employers asked to permit remote work as a reasonable accommodation under the Americans with Disabilities Act, the United States Court of Appeals for the Fifth Circuit recently held that the ADA did not require the Louisiana Attorney General’s Office to permit a litigation attorney to work from home indefinitely. In Credeur v. State of Louisiana, No. 16-30658 (5th Cir. June 23, 2017), the court determined that the employer did not fail to accommodate the attorney’s disability in violation of the ADA by denying her request to work remotely because it considered regular on-site attendance an essential function of her job and the statute and regulations required the court to “give the greatest weight to the employer’s judgment” on this issue.
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.