Iowa Employment Law Blog : Iowa Employment Lawyer & Attorney : Patrick Smith : Bradshaw Fowler Proctor & Fairgrave Law Firm : Des Moines, Central IA Discrimination & Labor Law

The EEOC has revised its "Equal Employment Opportunity is the Law" poster.    The poster was revised to reflect new federal employment laws, including the ADA Amendments, and the Genetic Non Discrimination in Employment Act ("GINA").  Employers can either obtain a new poster, or a supplement their existing poster.   The new posting is mandatory effective November 21, 2009.  Up to ten posters can be obtained from the EEOC free of charge, or can be printed from the EEOC's website.

The FMLA Blog reports on amendments to the FMLA the president signed this week.   Among the changes: military care giver leave will now apply to for veterans of the Armed Forces under certain circumstances.  In addition, Qualifying Exigency Leave is expanded to cover members of the regular military who are deployed to a foreign county.  Under existing law, such leave applied only for covered military members in the Reserves or Guard.

The best way to avoid workplace problems--avoid bad hires in the first place.  Two posts this week on HR Daily Advisor (here and here) identify five steps for gathering critical background information about prospective employees without breaking the bank, and while respecting the privacy rights of the applicant. 

A woman in Missouri sued Wal-Mart and other establishments under the ADA for denying access to her Bonnet Macaque monkey.   The Plaintiff claimed the monkey was trained to assist her with anxiety and agoraphobia, and she could not function in public unless the monkey was with her. The U.S. District Court in the Western District of Missouri granted summary judgment  to the defendants, finding that Plaintiff was not disabled, nor was her monkey a "service animal" under the ADA for which the establishments were required to provide reasonable accommodation.

This Bud's for you.  A former Chief of Communications at Anheuser-Busch (now Anheuser Busch in Bev)  filed a lawsuit against the company for gender discrimination.   The former executive claims the company maintains gender bias in pay and promotions, excludes women from social networks, and promotes few women to top jobs and committee posts.   Most shocking to any viewer of beer commercials is this allegation:  that the company fostered a locker room and frat party atmosphere in the workplace.  

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We have provided links before to  EEOC's Guidance to employers concerning compliance with the ADA during a pandemic.  Now that we seem to officially be in the midst of one, it is a good time to revisit what is permissible for an employer to do help contain the spread of H1N1.

Section III (B) of the EEOC document contains guidance on what employers can do during a pandemic.   Some of the very practical questions addressed include the following:

1.  May an employer send an employee home who displays influenza like symptoms?  Answer: yes; if there is a pandemic asking such workers to go home is not a disability related action.  Even if there was no pandemic, if the influenza resulted in a direct threat to the health or safety of the employee or others, the employee may be sent home.

2.  How much information can an employer request from employees who report feeling ill or call in sick?  Answer: employers may ask if the employee is feeling influenza like symptoms, such as chills or a fever and a cough or sore throat.   Any information obtained through such an inquiry must be treated as a confidential medical record. 

3.  May an employer require employees to wear personal protective equipment (e.g. face mask, gloves, or gowns)?  Answer: yes, however, it must be noted that if a person needs a reasonable accommodation to wear such equipment (e.g. non-latex gloves), the employer should provide these, absent undue hardship.   

4.  May an employer compel its employees to obtain influenza vaccine?  Answer: employees may be entitled to exemptions from mandatory vaccination because of a disability, or because of a sincerely held religious belief.   Whether or not the employee is exempt would depend upon if not taking the vaccine would be a reasonable accommodation of the disability or religious belief.

It is important to note that it is the pandemic condition that gives employers the right to make certain inquiries.  If there is not a pandemic situation, or if you are unsure, you should seek advice from your employment counsel before taking any action relating to H1N1. 

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The biggest news this week is the EEOC's release of the proposed regulations for the ADA Amendments Act of 2009.   This post from Jackson Lewis provides some of the highlights.   Note that these are proposed regulations.  There is a 60 day period during which the EEOC will receive comments.  After considering the comments, the EEOC will publish the final regulations and the date the regulations will become effective.   Stay tuned for more information and analysis.

Pop quiz: how many new federal employment laws have been passed by the 111th Congress in 2009 and signed into the law by the President?  Answer: one (the Lilly Ledbetter Fair Pay Act signed into law January 29, 2009). 

With all the buzz in the employment law community about the anticipated changes in 2009, some may be surprised by that answer. Employers should not rest on their laurels, however, because there are plenty of bills in the pipeline.   In this post, Dennis Westlind of World of Work blog identifies thirteen employment related bills that were introduced in 2009 and remain pending, including the Employee Free Choice Act (permitting union recognition by "card check", among other things;  Employment Non-Discrimination Act (prohibiting discrimination on the basis of sexual orientation or gender identity); Paid Vacation Act (mandating employers with 50 or more employees to provide paid vacation), and Paycheck Fairness Act (providing for "enhanced enforcement" of equal pay requirements between male and female employees).

Unpaid internships illegal?  In this post, Dallas Mavericks owner Mark Cuban rails against the Federal Wage and Hour Regulations that make the traditional "foot in the door" experience unlawful.  

Is there a looming crisis with wage and hour litigation?  Dan Schwartz at Connecticut Employment Law Blog and Jon Hyman at Ohio Employer's Law Blog show that, despite the buzz about wage and hour suits, the actual number of federal labor cases filed in their jurisdictions has remained steady.    The real concern is that many of these cases are collective actions, which can result in substantial monetary liability.   In May 2009, local convenience store chain Casey's General Stores paid over $11 million to settle two wage and hour collective actions filed by 7,600 former management level employees and 76,000 non-management employees.

Finally, according to the U.S. Department of Justice, the federal government has the right to read even the personal e-mail of its employees.    Notes one commenter on the ABA Journal site: "At least somebody is reading the emails I send to federal government employees…."

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This post in HR Observations (Hat tip: Ohio Employer's Law Blog) explores whether obesity could be the next characteristic to become protected under the anti-discrimination laws.   A group called the "Obesity Action Coalition" complains that discrimination against obese people is widespread.  Employer concern about rising costs associated with employee health coverage, workers' compensation costs,  and an emphasis on employee wellness may also contribute to the perception among the overweight that they have been marginalized in the workplace.

Although obesity is not officially a protected class under the federal discrimination laws or Iowa Civil Rights Act, employers are wise to be alert to weight related conditions that might lead to discrimination claims.   Health problems associated with obesity may protect an employee under the recent amendments to the ADA.   To the extent that gender or age contribute to weight related health conditions, policies or practices that favor fit and healthy employees may adversely impact one gender or age group more than others.   Even an employer wellness program designed to combat obesity could potentially discriminate against those who do not benefit from it.    It remains to be seen whether the EEOC will address obesity in the revised ADA regulations, and whether the Courts are open to expansive interpretations that will, in effect, result in weight becoming a new protected class.

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Earlier this year, we identified the Amendments to the ADA--known as the "ADAAA" --as one of the top human resources challenges of 2009.   The amendments became effective January 1, 2009.   One of the most significant changes in the new law as compared to the old ADA concerns the definition of "disability".   One of Congress intentions in the ADAAA was to overrule several U.S. Supreme Court cases which had interpreted the meaning of "disability" in a narrow way.   The Court's interpretation of "disability" under the old ADA caused many plaintiffs to have their discrimination suits dismissed because they were deemed as not having a disability.  Under the new law, most lawyers believe it will be much easier for a plaintiff to qualify as disabled.

One question that remained unanswered when the law became effective was whether the new definition of disability applied to alleged acts of discrimination that occurred before January 1, 2009. 

Two U.S. Circuit Courts of Appeal have now answered that question: the Fifth and D.C. Circuits.  In both cases, the courts held the ADAAA was not retroactive, and therefore applied only to alleged discrimination occurring after January 1, 2009.   Thus, for the cases based upon alleged discrimination before that date, the old standards still apply.  While other Circuits, including the Eighth, have not weighed in on this subject, it is doubtful any court will apply the law retroactively.    Unless Congress expressly mandates retroactive application of a law, which it did not in the case of the ADAAA, there is a presumption that it applies only to events that occur after the law becomes effective.    

In addition to decisions on this issue from the courts, it will be wise to keep track of the EEOC's new rules interpreting the ADAAA, which are still being developed.  The EEOC takes the position that the law itself is not retroactive, but it may contend that its regulations interpreting the law will be retroactive to January 1, 2009.  Because courts often defer to the EEOC's interpretation the anti-discrimination laws, the EEOC's rules are important to monitor.

We will keep you posted on decisions from other Circuits, as well as developments in the EEOC, addressing this important issue.

Hat Tip:  World of Work

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A recent study of Iowa employers revealed that 51 percent offered some type of health screening to their employees.  Many companies also offer other "wellness" benefits to encourage employees to exercise and adopt healthy lifestyles.   The wellness program of a prominent Des Moines employer was recently profiled in the Des Moines Register (link here). 

Company wellness programs present many benefits for employers and employees, including increased productivity and lower health costs.   Like other benefits, however, there are limitations and restrictions about what can be offered without running afoul of federal and state laws governing health insurance, benefit plans, and discrimination. 

First is the Health Insurance Portability and Accountability Act (HIPAA), which prohibits denying an employee eligibility or charging higher premiums to individuals based upon eight health factors, including health status, medical condition (including both physical and mental illnesses), claims experience, receipt of health care, medical history, genetic information, evidence of insurability (including conditions arising out of acts of domestic violence), and disability.   A summary of the Department of Labor's Guidelines concerning application of HIPAA to wellness programs is here.

In addition, to the extent a wellness program provides rewards to employees (such as reduced health insurance premiums, deductible waivers, etc.), the plan should  be carefully tailored so as to reward participation, and not results.   Some of the criteria for evaluating whether a wellness program is bona fide under the HIPAA regulations include the following:

1. The cost of the wellness program mustn't exceed 20% of the cost of coverage under the group health plan. When calculating the 20%, you must include all of the plan's wellness programs that require individuals to meet a health-related standard.
2. The program must be reasonably designed to promote health or prevent disease.
3. Individuals must have a chance to qualify for the reward at least once a year.
4. The reward must be available to all similarly situated individuals and must provide a reasonable alternative standard for obtaining the reward for individuals for whom it's unreasonably difficult to satisfy the standard because of a medical condition.
5. All group health plan materials that describe the wellness program must disclose the availability of a reasonable alternative standard.

Other laws that may impact wellness programs include the Employee Retirement Income and Security Act (ERISA), which governs employee benefit plans, and the Americans with Disabilities Act (ADA).   For example, the ADA prohibits an employer from inquiring about medical conditions unless the inquiry is job related and a business necessity.   Any information gathered in connection with a wellness program must be truly voluntary to meet ADA requirements, and must be done in a manner so as to preserve the confidentiality of the information and prevent it from being relied upon to make employment or benefit decisions.  Finally, employers are required to offer reasonable accommodation to employees who cannot participate in any aspect of a wellness program because of a disability.

As with many employment decisions, it is wise to consult counsel to ensure your company's wellness program complies with applicable laws and regulations.

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A recent post at Human Resources Executive Online, entitled "Warnings from the Top".  provides an excellent overview of some of the new challenges employers have been presented since the beginning of 2009.   "Like it or not" say the authors, changes are coming, and employers better be prepared.

According to several attorneys the authors interviewed, some of the most pressing new laws and regulations relate to the Lilly Ledbetter Fair Pay Act, the Employee Free Choice Act being debated in Congress, and Amendments to the ADA.    These new laws mean it is time to train--about labor relations issues, what managers can and cannot say about unions; about safety, and about reasonable accommodation.   Now is also a good time to conduct an audit of your company's human resources practices, especially wage and hour compliance issues and compensation practices.  

Iowa employers are not immune from these changes.  Indeed, as discussed in a prior post on Iowa Employment Law Blog, compensation fairness issues may be even more urgent in Iowa because the the State has enacted its own version of the Lilly Ledbetter Act.

We will continue to keep you posted on developments in these important areas of the law.

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As of a couple of day ago, there were 43 reported cases of swine flu--what is now being called "H1N1"--in Iowa.   

Given the continued spread of this virus, employers would be wise to develop plans to deal with H1N1 issues that could affect their employees and their workplace.   The Des Moines Register published an article today  (link here) about the choice many employees make between staying home or going to work when they are sick.    The article suggests that employees who lack paid sick leave are more likely to show up at work when they are sick, thus raising the risk of infection by co-workers and customers.

What should an employer do to protect the health of its employees and customers, while at the same time making sure to comply with employment laws?  The first step is to be informed.  The website pandemicflu.gov provides lots of helpful information and tips to stay abreast of the virus and its spread.

In addition, the EEOC has recently published two articles to assist employers in dealing with H1N1 issues.  The first, ADA Compliant Employer Preparedness for the H1N1 Flu Virus provides guidance on dealing with employee absenteeism and infection control in ways the comply with the disability discrimination laws.    According to the EEOC publication, employers are permitted to gather personal information from employees in connection with pandemic preparation so long as the employer asks broad questions that are not limited to disability related inquiries.   The EEOC even provides a sample questionnaire that complies with the ADA.   In addition, employers may implement common sense infection control procedures without implicating the ADA.

The second EEOC document, entitled Employment Discrimination and the 2009 H1N1 Flu Virus (Swine Flu), cautions employers about national origin discrimination in light of the fact that the h1N1 virus is believed to have originated in Mexico.   The publication also provided helpful links concerning pre-employment physical exams and disability related questions to employees.

We will continue to keep you posted on developments in this area.

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