How much extra leave is reasonable for an employee who has exhausted FMLA but is not yet capable of returning to work? Does an employer have to keep the absent employee’s job open?  What medical evidence is needed?   How much interactive dialogue is enough?  What about an employee is who is unreasonable and/or demanding?

A recent opinion from the Eighth Circuit provides helpful guidance about these and other problems employers face when deciding whether extended medical leave is a reasonable accommodation for an employee with a serious medical condition who is not yet capable of returning to work. See Brunckhorst v. City of Oak Park Heights, (8th Cir. 2/4/2019).

Continue Reading Eighth Circuit Case Provides Guidance on How to Handle the Vexing Problem of Extended Medical Leave as a Reasonable Accommodation

Publisher’s Note:  Today’s guest post is provided by Brandon Underwood, one of my colleagues at Fredrikson & Byron, P.A.   Hopefully Brandon will catch the blogging bug and continue to post….

The Americans with Disabilities Act (ADA) forbids medical examinations and inquiries in employment.  But not all of them.  Instead, an examination or inquiry’s permissibility, and scope, turns primarily on when it occurs.  Too early, and the examination violates the ADA.  Too late, and it may as well.

Continue Reading Court Finds Employer’s Inquiry about Health Conditions of New Employees Absorbed in Merger Complies with ADA

A divided panel of the Iowa Court of Appeals recently ruled that the rules of construction in the ADA as amended in 2008 apply to the Iowa Civil RIghts Act when determining what constitutes a disability (Knudsen v. Tiger Tots Community Child Care Center, No. 2-1011, 1/9/13). Although Knudsen is a public accommodation and not an employment case, the opinion is nonetheless very significant.   It shows at least one appellate panel’s willingness to adopt the ADA Amendments by judicial fiat. The Iowa legislature has not amended the ICRA to adopt the changes Congress made to the ADA in 2008 (effective January 1, 2009). 

The plaintiffs in Knudsen are parents of a child with a tree nut allergy. Their child was refused admission to a child care center because the center did not have sufficient staffing levels to deal with the extra care demands of a child with that kind of medical condition.  The trial court granted summary judgment to the defendants because the nut allergy was not a “disability” under the ICRA.

The court reversed the summary judgment because the trial judge had not evaluated whether an episodic condition like a tree nut allergy would substantially limit a major life activity when active.    Notably, coverage for episodic conditions has existed only since the ADAAA became effective January 1, 2009.   But the ICRA has never been amended.   In holding that the ADA amendments apply, the court relied upon several pre-2009 cases holding that a federal analytical framework applied to disability cases under the ICRA. 

Judge Vogel dissented from the majority’s decision. She argued the only reason the pre-2009 cases relied upon the federal disability framework is because of similarities between the ADA and ICRA that then existed. After the 2009 ADA amendments, however, the federal law was no longer similar in many respects.    Judge Vogel concluded that it is not the court’s role to change the definition of disability under the ICRA simply because federal law changed.   That is up to the legislature.

Fortunately, this panel’s opinion is not the end of the story.   A certified question is presently pending before the Iowa Supreme Court on this very issue.   In Stotler v. Delavan, Inc., U.S. District Judge Gritzner asked the Iowa Supreme Court to answer the following question:

In the absence of any applicable amendment to the Iowa Civil Rights Act (ICRA) regarding claims of disability discrimination, will the Iowa courts adopt the structure of the revised federal law enacted by Congress in the 2008 Americans with Disabilities Act Amendment Act (ADAAA), specifically 42 U.S.C. §§ 12101 and 12102, and federal regulations promulgated thereunder, when reviewing disability discrimination claims under the ICRA?

It would be tempting for the Iowa Supreme Court t to simply adopt the ADA Amendments (as the Court of Appeals did in Knudsen).    It would certainly make cases easier to litigate, particularly those that assert claims under both federal and state law.  Hopefully, the court will resist that temptation.   The ADA Amendment substantively changed the nature and extent of that law’s coverage.  The Iowa legislature has expressed no intention to expand the scope of the ICRA in a similar manner.  

Not following the federal ADA in this case would also open the door to re-evaluting whether federal precedent should be followed in other types of discrimination claims under the ICRA..  The courts have for years ignored the real substantive differences between federal and state discrimination laws, and it is time to revisit those decisions.

This week we are trying out a new feature on our Blog.  A weekly round-up of important, interesting, practical, or funny employment law information and news posted in blogs or otherwise on the world wide web during the past week.  Please contact us with any information or feedback.  Here we go for the first edition:

The Des Moines Register reports that key information was withheld from the Iowa Civil Rights Commission in connection with its investigation of racial bias by Iowa Workforce Development.    The investigation is part of a class action lawsuit alleging the Agency engaged in a pattern of failing to hire black applicants over a number of year.

New ADA Regulations coming soon.   The Washington Labor & Employment Wire notes that the EEOC voted to publish a Notice of Proposed Rule making.  Once the proposed regulations are published, there is a 60 day period for comments from the public.   The EEOC press release on the subject is here.    The EEOC has also published a Q&A document concerning the proposed rule making.

 EFCA Report discusses the many high profile politicians that have addressed the AFL-CIO constitutional convention this week.  Senator Specter (D-Pa) discussed a revised EFCA that would eliminate the controversial "card-check" feature of the bill.  However, the revised EFCA would still contain the binding arbitration provision and enhanced penalties for unfair labor practices that business interests strongly oppose.   In addition, while it eliminated card check, the proposed compromise bill shortens dramatically the time period between a petition for election and the actual election, thus reducing the time an employer would have to mount a campaign opposing the union.

Most sexual harassment cases involve female employees complaining about males, but occasionally it is the other way around.  The EEOC announced it is pursuing claims against a South Carolina Time Share resort because of alleged sexual harassment by a female supervisor of a male subordinate.  

For another example of the impact of internet social media on workplace litigation, see this post at the Delaware Employment Law Blog.

Ross Runkel’s LawMemo Employment Law Blog contains a link to a 79 page report issued by the U.S. Chamber of Commerce concerning what changes to expect the Obama NLRB. 

Finally, in light of the recent  public outbursts, tantrums, or otherwise offensive remarks Serena Williams, Rep. Joe Wilson (R., S.C.), rapper Kayne West, and other public figures, Work Matters Blog contains a thoughtful post about the art of the apology and how it can contribute to more civil behavior both in and out of the workplace. 

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.

 

 

 

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

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.

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.