On April 19, my colleague Andrew Bernstein and I will be discussing the increasingly complex web of federal, state, and local leave and accommodation laws that employers must navigate. As many companies are aware, the federal Family and Medical Leave Act provides up to 12 weeks (and in some cases, up to 26 weeks) of unpaid, job-protected leave to eligible employees and the Americans with Disabilities Act requires employers to provide reasonable accommodations, which may under some circumstances include flexible schedules and leaves of absence, to qualified individuals with disabilities.
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 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 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.
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.
On April 16, 2015, the EEOC published proposed regulations setting forth its position on the use of physical examinations under employment-based wellness programs. This comes as welcome guidance to employers who have implemented, or who hope to implement, workplace wellness programs that include biometric tests or physical examinations as part of the process for providing financial rewards to employees.
Last Friday, the Sixth Circuit Court of Appeals sitting en banc held that telecommuting up to four days a week was not a reasonable accommodation under the ADA for a disabled Ford Motor Co. employee. The decision, EEOC v. Ford Motor Co., provided a win for employers (and a setback for the EEOC) by reversing an earlier decision issued by a divided panel of three Sixth Circuit judges, which had held that telecommuting was a reasonable accommodation for this particular employee.
Written by Alden J. Bianchi
While my entries have focused principally on the employer shared responsibility rules of the Affordable Care Act (ACA), every once in a while an item comes along that nevertheless grabs my attention. The treatment of wellness plans at the hands of the Equal Employment Opportunity Commission (EEOC) is such an item.
Written by Michael Arnold
61 hot dogs in 10 minutes. Let me repeat: 61 hot dogs in 10 minutes. That’s an incredible 6.1 hotdogs per minute! But for competitive eating champion Joey Chestnut, it was just another day at the office. Chestnut took home his 5th consecutive July 4th Nathan’s Hot Dog Eating Contest trophy. What made this one all the more (ful)filling was that Mr. Chestnut found the time just before the starting gun went off to propose to his girlfriend (she said yes). The cocktail hour at that wedding should be really interesting given that this is a man who once ate 12.8 pounds of deep fried asparagus in 10 minutes, 78 matzoh balls in 8 minutes and 141 hardboiled eggs also in 8 minutes. Yum.
Here’s another thing about Joey Chestnut: up until this summer, he had a day job in construction management in San Jose. And I wonder if his employer offered him and his co-workers an opportunity to participate in an employee wellness program, and if so, whether it would have tried to “persuade” Chestnut to participate?