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.
On January 25, the Seventh Circuit Court of Appeals issued it much-anticipated decision in EEOC v. Flambeau, Inc. This case involved the regulation of employer-sponsored wellness plans and programs. Since 2006, the rules surrounding wellness programs had been modestly well settled—for tax and benefits purposes. But little was known about the impact of the Americans with Disabilities Act (ADA). At issue in Flambeau is which of two ADA provisions—the voluntary employee health program exception or the safe harbor for “bona fide benefit plans”—also apply to wellness plans. The lower court, the U.S. District Court for the Western District of Wisconsin, ruled against the EEOC, applying the more flexible bona fide benefit plan exception. The EEOC appealed.
The Seventh Circuit’s decision on appeal is a model of judicial restraint. (This is the doctrine that holds that cases ought to be decided on the narrowest grounds possible.) Flambeau “won” on appeal only in the narrow sense that it avoided liability. The Court did not reach the statutory or regulatory issues before it. Rather, it disposed of the case on procedural grounds.
The growing prevalence of the Zika virus in the United States has already presented a number of hurdles for employers striving to create a safe and healthy workplace environment for their employees. These concerns are more immediate than ever. The recent and continuing outbreak in Florida and the emergence of state-to-state transmission within the U.S. reinforce the need for employers to stay informed of best practices for minimizing workplace health risks without overstepping critical legal boundaries between employer and employee.
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.
As a recent federal appellate decision confirmed, the Americans with Disabilities Act does not require employers to always accommodate a disabled employee. Instead, it is the employee’s burden to first show that he or she can perform the essential functions of the job with said accommodation. Alternatively, if the employee cannot perform the essential functions of the job, he or she may seek, as a reasonable accommodation, a reassignment to a vacant position as long as the employee is qualified for that position. In both cases, the employer is relieved of the accommodation requirement if it can show an undue hardship would result. It was these essential function and vacancy issues that were the focus of the First Circuit’s opinion in Lang v. Wal-Mart Stores.
The Western District of Washington recently emphasized that the obligation under the Americans with Disabilities Act (“ADA”) to engage in good faith interactive dialogue when seeking an accommodation that will permit an employee with a disability to perform his or her job applies to employees as well as employers. In Huge v Boeing Co. (W.D. Wash. March 4, 2016), following a bench trial the court found the employee had failed to present evidence that her employer, Boeing Co., did not take reasonable measures to accommodate her Asperger’s Syndrome where the record showed the employee repeatedly engaged in obstructive and uncooperative behavior in response to Boeing’s proposed accommodations. Continue Reading Employee’s Failure to Participate in Interactive Process in Good Faith is Fatal to ADA Accommodation Claim, Says Washington Federal Court
Many employers still grapple with the application of certain anti-discrimination laws — such as Title VII and the ADA — to non-U.S. citizen employees working in the United States and U.S. citizen employees working overseas. To determine whether these laws apply, employers should ask themselves the following questions:
The benefits world was set abuzz late last year with Equal Employment Opportunity Commission v. Flambeau, Inc., in which the Federal District Court for the Western District of Wisconsin upheld the validity of Wisconsin-based plastics manufacturer Flambeau, Inc.’s wellness program in the face of a challenge by the Equal Employment Opportunity Commission (EEOC). We provided the details of the case in an earlier post. The EEOC has since appealed the lower court’s decision to the Seventh Circuit. An earlier appellate case, Seff v. Broward County, 691 F.3d 1221 (11th Cir. 2012) reached a conclusion similar to Flambeau.
If the Seventh Circuit affirms the Flambeau decision on appeal, then the Americans with Disabilities Act, as amended by the ADA Amendments Act of 2008 (ADA) will have virtually no impact on wellness programs tied to employer-sponsored group plans in six states: Alabama, Florida, Georgia, Illinois, Indiana and Wisconsin—i.e., the states comprising the Seventh and Eleventh federal appellate circuits. An appeal to the Supreme Court would almost certainly follow, though it’s not clear whether the Court would accept the case in the absence of a split in the Circuits. But if the Seventh Circuit sides with the EEOC, then a confrontation before the Supreme Court is almost assured.
This post explains what is at stake in the EEOC’s appeal of the Flambeau decision and offers some predictions about the likely outcome.
The Zika virus has been the topic of much discussion and anxiety for many weeks. The United States Centers for Disease Control and Prevention (CDC) has now issued travel warnings for more than two dozen countries in the Caribbean, Central America and South America and cases have been reported in at least 13 states and Washington, D.C. This anxiety has, not surprisingly, crept into workplaces, including those with employees that travel to the affected areas. This post addresses some of the employment issues raised by the Zika virus.
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.