Over the past several years, health care entities have increasingly become the target of private and government plaintiffs complaining of disability discrimination. A crescendo of litigation has engulfed the health care industry—and most notably of late, “drive-by” litigation attacking the perceived failure of health care entity facilities and websites to accommodate the needs of persons with disabilities consistent with the requirements of the Americans with Disabilities Act (ADA).

Read the full article below or here: The Rising Tide of ADA Litigation Against Health Care Entities (©Copyright 2018, American Health Lawyers Association, Washington, DC. Reprint permission granted.)

Continue Reading The Rising Tide of ADA Litigation Against Health Care Entities

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.

Continue Reading EEOC v. Flambeau, Voluntary Plans, the Insurance Safe Harbor, and the Future of Wellness Programs

Written by Michael Arnold

The EEOC released its updated enforcement guidance on pregnancy discrimination yesterday — the first time it’s done so in more than 30 years. You can access the guidance and related documents here.

Continue Reading The EEOC Releases Updated Enforcement Guidance on Pregnancy Discrimination and Related Issues

Written by Michael Arnold

The Equal Employment Opportunity Commission – the agency responsible for enforcing most of the federal discrimination laws – is preparing to issue new guidance addressing an employer’s obligation to reasonably accommodate pregnant workers. Will the guidance offer a new interpretation of the law or just cement what we already know?

Continue Reading EEOC Will Release Enforcement Guidance Addressing an Employer’s Obligation to Reasonably Accommodate Pregnant Workers; Employers Should Continue to Pay Careful Attention to These Accommodation Requests

Written by David Katz

Yet another federal court judge, the Honorable Stephen N. Limbaugh, Jr. of the Eastern District of Missouri, recently ruled, in Whittaker v. America’s Car-Mart, Inc., that an employee’s severe obesity could constitute a “disability” under the Americans with Disabilities Act.

Continue Reading Another Judge Finds that Obesity May be a “Disability” Under the ADA

Written by Martha Zackin

On Wednesday June 8, the EEOC will hold a public meeting to examine the use of medical leaves of absence as “reasonable accommodation” for employees’ disabilities.

Over the past few years, the EEOC has taken an increasingly aggressive position against inflexible leave of absence policies that provide for automatic termination of employment when an employee does not or cannot return to work at the end of a specified maximum leave period, such as when the employee has exhausted available FMLA leave.  Targets of the EEOC’s ire have included UPS, Princeton HealthCare System, JP Morgan Chase & Co., Sears Roebuck & Co., and United Airlines.  More recently, in January 2011, the EEOC entered into a consent decree with SUPERVALU INC., American Drug Stores LLC, and Jewel Food Stores (“Jewel-Osco”), pursuant to which Jewel-Osco was required to pay a class of 110 individuals a total of $3,200,000, as well as to provide extensive training and other significant non-monetary relief.

It is reasonable to assume that the upcoming public hearing is the first step towards further regulation of employers’ administration of medical leaves of absence, which likely will require that employers provide leave as a reasonable accommodation under the ADA in a broader set of circumstances than now considered by employers.

The timing of the hearing is interesting, in that it follows close on the heels of the effective date of new regulations implementing the Americans with Disabilities Act Amendment Act of 2008 (the “ADAAA”).  Those regulations, like the ADAAA itself, are designed to simplify the determination of who has a “disability” and make it easier for individuals to establish that they are protected by the ADA. Taking the new, expansive definition of “disability” under the ADAAA together with the EEOC’s position on leaves of absence as reasonable accommodation for disabilities, could result in circumstances where an employee is entitled to leave under the ADAAA but not under the Family and Medical Leave Act.

Stay tuned for an update following the public hearing.