Tag Archives: ADA

Does Your Workplace Wellness Program Comply With Existing Laws?

Contributed by Allison Sues, May 23, 2017

The National Business Group on Health’s Eighth Annual Survey on Corporate Health recently revealed the growing prevalence of workplace wellness programs. Many such programs are expanding their aim to not only better the physical health of employees, but also to improve employees’ emotional health and financial security.

employee wellness

Words “Employee Wellness” with a red circle around it

Employers should be cautious that health and wellness programs, particularly those dealing with the physical and emotional health of employees, do not run afoul of existing laws. Many employers offer employees health promotion and disease prevention activities, commonly including programs aimed at smoking cessation, weight management, and physical activity challenges. Any wellness program that asks participants to provide personal medical information or submit to health testing should comply with the Americans with Disabilities Act (ADA), Genetic Information Nondiscrimination Act (GINA), and the Health Insurance Portability and Accountability Act (HIPAA).

Looking closer at the ADA, it generally prohibits employers from making disability-related inquiries or requiring employees to submit to medical exams. The statute exempts wellness programs from this prohibition, stating that employers may “conduct voluntary medical examinations, including voluntary medical histories that are part of an employee health program available to employees at that worksite.” 42 U.S.C. § 12112(d)(4)(B). EEOC regulations confirm that wellness programs must be voluntary, confidential, and reasonably designed to promote health or prevent disease.  29 C.F.R. § 1630.14 (d)(1)-(4).

  • Wellness programs must be used only to improve the health of participating employees. A wellness program is reasonably designed to promote health or prevent disease if it has a reasonable chance of bettering the health of participants, is not overly burdensome, and is not a subterfuge for violating the ADA or any other law.
  • Employers must be able to show how they utilize any collected medical information to better participants’ health. A wellness program will raise suspicion if it collects employee health information through questionnaires, testing, or screening without providing any results, follow-up information, or advice designed to improve the participant’s health.
  • Wellness programs that collect employee health information must be voluntary. This means that employees may choose not to participate in the wellness program without suffering any retaliation or adverse action, including denial of coverage under a group health plan.
  • An incentive-based program may still be deemed voluntary. Use of a financial reward, financial penalty, or other incentive to encourage participation in a wellness program does not render the program involuntary if the maximum incentive does not exceed regulatory thresholds. For employers offering a group health plan, incentives must not exceed thirty percent of the total cost of coverage for the employee (including both contributions from employer and employee).
  • Employers must provide employees with notification about the wellness program. The notification must describe all personal medical information that will be collected and how it will be used. The notification must also explain what measures the employer will take to ensure the information is not improperly disclosed.

Website Accessibility

Contributed by Debra Mastrian, February 21, 2017

Website accessibility continues to be a hot topic. Hundreds of businesses throughout the country have been sued in the past few years for failing to have accessible websites.  Retail businesses have been the primary target; however, financial institutions and now, the healthcare industry, are receiving threatening letters from high profile law firms, alleging that the businesses’ websites are not “accessible” and in violation of the Americans with Disabilities Act (ADA). The law firms threaten to file suit if the businesses do not make their websites compliant with the Web Content Accessibility Guidelines Version 2.0 Levels A and AA (“WCAG 2.0 AA”), created by the World Wide Web Consortium, and demand a settlement, including payment of attorneys’ fees.

The ADA does not currently have an accessibility standard that private companies must comply with regarding websites. However, the federal agency charged with ADA enforcement – the United States Department of Justice (DOJ) – has stated its position that Title II and Title III of the ADA requires public and private entities that have websites to make their websites accessible to individuals with disabilities. Although no final regulation has been issued, and none is expected until 2018 at the earliest, the DOJ has initiated a number of enforcement actions against private companies and public entities.  In settling enforcement actions, the DOJ has generally required compliance with WCAG 2.0 AA. It remains to be seen if the enforcement actions will continue under President Trump’s administration, however, businesses must still take heed because of the threat of lawsuits by private law firms.

cloud-computer-tablet-phoneThere are steps businesses can take to reduce the risk of being sued or having liability, including:

  • Educate yourself and IT employees regarding WCAG 2.0 AA standard
  • Retain a website accessibility consultant/vendor to review your website using the WCAG 2.0 AA standards
  • Redesign and/or update your website to conform with WCAG 2.0 AA
  • Set up regular monitoring of your website for compliance with WCAG 2.0 AA and ensure that all new content is reviewed for accessibility before being added to the website
  • Adopt an internal website accessibility policy that includes a reporting mechanism for any complaints, issues or suggestions about accessibility to your website and online banking services
  • Distribute your website accessibility policy to technical support staff and vendors
  • Train employees on accessibility and current WCAG 2.0 AA standard
  • Put a statement on the homepage of your website (or a link to the statement) about your commitment to website accessibility, solicit feedback, and include contact information for reporting problems
  • Add alt-text, captions and other features that make your website more accessible  to individuals using screen reader or other assistive technology
  • Require vendors providing website, apps, online banking, advertising or other services, to make their products and services “accessible” in conformance with the ADA and WCAG 2.0 AA
  • Have a written agreement with vendors, who are providing website redesign, updates or monitoring, which includes compliance with WCAG 2.0 AA accessibility standards in the scope of the work being performed and request a rep and warranty regarding accessibility
  • Review indemnification provisions in vendor agreements to determine if the vendor agrees to indemnify you for claims resulting from the vendor’s negligence or failure to comply with WCAG 2.0 AA or ADA website accessibility standards

If you receive a demand letter, you should promptly report the demand letter to your insurance agent or applicable insurance companies. Employment practices liability (EPL) policies may provide coverage for website ADA claims brought by third parties. Media liability or cyber security policies may also apply, depending upon the policy coverage and exclusions.  Additionally, since the demand letter is a threat of litigation, you should implement a legal hold to preserve and protect all potentially relevant documents and information. Importantly, demand letters must be taken seriously. Failing to appropriately address may result in costly litigation. That being said, it is important to understand that settling with a private litigant does not insulate the business from litigation by the DOJ or other private litigants.

Website accessibility is an evolving area of law. Businesses should be aware of the issues and understand their potential exposure to threats of litigation.

Website Accessibility Lawsuits Under Title III of the ADA – Are you Exposed?

Contributed by Michael Wong, October 18, 2016

The Americans with Disabilities Act (ADA) not only provides employment protections and accommodation rights to qualified individuals with disabilities in the workplace, it also requires reasonable accommodations in “places of public accommodation.” Places of public accommodation include businesses that are open to the public and fall within one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors’ offices. The ADA’s mandate extends to newly constructed or altered places of public accommodation including privately owned, nonresidential commercial facilities such as factories, warehouses, and office buildings.

17103126_sTraditionally, Title III has meant that businesses with brick and mortar locations had to remove physical barriers to provide equal access and opportunities to individuals with disabilities (i.e. installing wheelchair ramps or elevators, accessible restrooms, and handicap parking spaces). However, courts and the U.S. Department of Justice (DOJ) over the past few years have interpreted Title III to also require accessible public websites.

Even though the DOJ has not issued guidelines or standards for web accessibility for private businesses, it has been seeking to enforce Title III against private businesses. Moreover, over the past few years, more and more private litigants have been sending demand letters and filing lawsuits against businesses. Indeed, several have become “professional litigants” in this area, much like we have seen with the Fair Credit Reporting Act (FCRA). The number of cases filed alleging violations of Title III has more than doubled over the past few years.

While relief under Title III of the ADA is limited to injunctive relief (i.e. business is ordered to shut down website or make it accessible), successful litigants can recover their attorneys’ fees and costs. Additionally, some state laws provide for additional monetary damages. For example, in California the damages are up to three times the amount of actual damages, but not less than $4,000, plus attorneys’ fees and costs. It is noteworthy that California has taken some steps to address “high-frequency litigants” and exempted certain businesses from the full minimum $4,000 statutory damages. However, the potential exposure and liability for a Title III website accessibility claim is real.

What do businesses need to know and do?

First and foremost, check whether your websites are accessible. Though the DOJ has not issued formal regulations, it has recognized Version 2.0 of the Web Content Accessibility Guidelines (WCAG 2.0) published by the World Wide Web Consortium (W3C) as an appropriate standard. Next, promptly remediate any deficiencies identified in your websites. Note that sometimes it is more cost effective to create a new website than to make an old website accessible. Third, be on the lookout for further guidance. The DOJ has indicated its intent to issue a proposed rule regarding website accommodation. Finally, consult with qualified counsel on ways to limit exposure to potential accessibility lawsuits and how to respond to a demand letter or lawsuit alleging a violation of Title III.

Blanket Exclusion Policies Continue to Draw EEOC’s Ire

Contributed by Suzanne Newcomb, August 30, 2016

Last week the EEOC filed suit against an Arizona car dealership for rescinding its offer to an applicant who tested positive for a substance banned by the company’s drug policy. The drug screen itself was legal. The ADA specifically allows employers to screen applicants and employees for illegal drug use. It was the employer’s policy of excluding anyone who tested positive for certain substances without first inquiring whether the substance was legally prescribed to treat a disability that prompted the EEOC to file suit. Notably, the EEOC filed suit on behalf of this particular applicant as well as all others who are similarly situated.

Discrimination-2In a press release the EEOC’s Pheonix Regional Attorney explained that drug tests, though legal, “cannot be used to discriminate against qualified people with disabilities.” She cautioned employers to “be mindful that they may need to make exceptions to drug use policies as a reasonable accommodation.”

The EEOC has taken a similar stance against strict application of maximum leave policies. As is noted in the EEOC’s guidance on leave as a reasonable accommodation published earlier this year, reasonable accommodation “can include making modifications to existing leave policies and providing leave when needed for a disability, even where an employer does not offer leave to other employees.” In some situations this can mean extending leave beyond that which is protected by the Family and Medical Leave Act. The EEOC’s May 2016 guidance on leave as a reasonable accommodation can be found here.

The Arizona case involves prescription medication, not illegal drugs. The plain language of the ADA allows employers to act on the basis of current use of illegal drugs. Employers may also inquire about an individual’s ability to safely perform the essential functions of the position. However as prescription drug abuse continues to plague the American workforce, the line between prescription medication and illegal drugs becomes less and less clear.

Bottom line, the ADA requires employers to engage in an interactive process to determine whether reasonable accommodation will allow the individual to perform the job safely. This mandate extends to all phases and facets of the employment relationship. Blanket rules that do not provide for an individualized assessment of whether reasonable accommodation is possible are rarely defensible.

Sixth Circuit Decision Reminds Us That ADA Plaintiffs Must Reconcile Social Security Benefits Finding of Total Disability to Establish ADA Failure to Accommodate Claim

Contributed by Allison Sues, August 2, 2016

On July 28, 2016, the Sixth Circuit Court of Appeals issued an unpublished decision that analyzed an Americans with Disabilities Act (ADA) failure to accommodate a claim involving an employee who had applied for and received social security benefits for her disability. This case provides a helpful reminder on how employers should handle ADA plaintiffs who allege that they can return to work with accommodation but elsewhere represent that they are totally disabled from working.

Social Securty Disability BenefitsIn Stallings v. Detroit Public Schools, Case No. 15-2428, the court affirmed the district court’s grant of summary judgment in favor of the school district on a former teacher’s failure to accommodate claim. A classroom teacher suffered from an arthritic knee and requested various, and sometimes conflicting, accommodations seeking to avoid classroom work. The school district did not accommodate her by removing classroom work from her duties and the teacher felt compelled to resign. She then applied for and received social security benefits. In her social security benefits application, the plaintiff asserted that she was completely incapable of working.

By following the United States Supreme Court’s decision in Cleveland v. Policy Management Systems Corp., the Sixth Circuit determined that a statement of total disability in a social security benefits proceeding does not foreclose a plaintiff’s ability to show that she is a qualified individual under the ADA, meaning that she can perform the essential functions of her job with or without an accommodation. The Cleveland case instructs that plaintiffs must be given an opportunity to offer a sufficient explanation for the apparent contradiction. Cleveland reasoned that an employee can both be deemed totally disabled under social security law, which does not take reasonable accommodations into consideration, and a qualified individual under the ADA, where an employee who is totally disabled from working without an accommodation may be able to return to work with accommodation.

In Stallings, the plaintiff was unable to reconcile the contradiction between the finding of total disability in her social security proceedings and her assertion that she was a qualified individual under the ADA. The plaintiff argued that she could have completed the essential functions of her job with a reasonable accommodation – a four-month leave – but she had represented to the Social Security Administration that her disability was an ongoing condition and would prevent her from working for a period of no less than twelve months.

This case serves as a helpful reminder to employers that an employee’s statement of total disability – whether in social security proceedings, a Family and Medical Leave Act request, or even a doctor’s note – may not be considered the final word on whether that employee is a qualified individual under the ADA. However, the contradiction must be overcome by the employee’s ability to return to work with an accommodation.

EEOC Issues Final Rules on Wellness Plans

Contributed by Suzanne Newcomb, May 23, 2016

The EEOC has finalized 2 rules relevant to employer wellness programs. The Final Rules, which can be found here and here, amend existing regulations implementing the Americans With Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (“GINA”), respectively, and specifically address employer-sponsored wellness programs.

employee wellnessThe ADA prohibits employers from making disability-related inquires or requiring medical examinations, except in limited circumstances. GINA prohibits employers from requesting, requiring or purchasing “genetic information” about employees and their family members, except in limited circumstances. These prohibitions, coupled with the statutes’ expansive definitions of “disability” and “genetic information” have complicated employers’ well-intentioned efforts to implement incentives aimed at promoting health and disease prevention.

Although the Final Rules differ slightly from proposed rules issued last year, there are no major surprises. The Final Rules permit employers to offer incentives to employees who choose to participate in voluntary wellness programs or who achieve certain health outcomes as long as:

  • The program is “reasonably designed to promote heath or prevent disease.” The rule explains that this generally means the program provides useful feedback to employees (or their participating spouses) rather than simply alerting the employer to estimated future healthcare costs;
  • The program is truly voluntary, meaning employees are not required to participate and those who choose not to participate (or who fail to achieve certain goals) are not denied coverage, or subjected to adverse employment actions (i.e. termination, or other on-the-job retaliation);
  • The program may, as part of a “Health Risk Assessment,” offer inducements for an employee or participating spouse to provide information about his or her own  “manifestation of disease or disorder” but may not offer inducements or otherwise request this information specific to the employee’s children;
  • The employees receive notice describing the medical information that will be obtained, the specific purposes for which it is obtained, with whom the information will be shared, and the methods used to prevent improper disclosure;
  • Any incentives offered (financial or in-kind) may not exceed 30% of the total cost (employee-paid plus employer-contributed) of employee-only insurance coverage (or 30% of the cost of the second lowest cost Silver plan for a 40 year old non-smoker if the employer offering the wellness program does not offer health insurance). The 30% limit is applied separately to any incentives offered to the employee and any incentives offered to the employee’s participating spouse. It is not a cumulative total;
  • With limited exceptions, the medical information gathered must be kept confidential and shared with the employer only in an aggregate form not reasonably likely to disclose information specific to any individual employee; and
  • The employer provides reasonable accommodation to allow employees with disabilities equal opportunity to participate in the programs and to earn incentives.

Alcohol Use – Can you regulate and/or discipline an employee for using alcohol outside of work?

Contributed by Mike Wong

Can I regulate and/or discipline an employee for using alcohol outside of work?

While you might think the answer is pretty straightforward – it is NOT.  Attorneys often respond by saying, “it depends.”

If an employee’s use of alcohol (or any other legal product) outside of work is negatively impacting their performance or resulting in them coming to work impaired, then you can issue discipline in line with your policies and procedures for that conduct.

What if it is not impacting their performance and they are not coming to work drunk?

Again the answer is the dreaded – “it depends.” In part, the reason for this is that different states have different laws. For example, in Illinois, Minnesota, Missouri, Montana, Nevada, North Carolina, Tennessee, and Wisconsin employers are prohibited from discriminating against or treating employees different because of their use of legal products. In California, Colorado, New York, and North Dakota employers cannot treat employees differently based on their decision to engage in legal activities.

What if you are not in one of those states?

code of conductIt again depends on the circumstances and what actions the employer is trying to take. In an Informal Discussion Letter from August 28, 2014, the EEOC addressed whether an employer can require employees who are alcoholics, or are perceived to be alcoholics, to permanently abstain from drinking alcohol on or off the job as a condition of continued employment. The EEOC advised that requiring these employees to permanently abstain from drinking would likely violate the American with Disabilities Act (ADA) and constitute discrimination based on alcoholism, which is a recognized disability.

Employers may have a legitimate business interest in ensuring that employees are not impaired during work; however, they generally do not have a legitimate business interest in regulating an employee’s conduct outside of work. When dealing with alcohol and alcoholism there are a few things that employers should remember:

  1. Employers can prohibit employees from using, being impaired by or possessing alcohol in the workplace – i.e. have a drug and alcohol free workplace policy.
  2. Alcoholism is a protected disability under the ADA
  3. The ADA specifically allows employers to hold alcoholics to the same performance and conduct standards as other employees.
  4. Employers can discipline/terminate employees for performance or conduct, in the same manner as other employees, even if the employee claims the performance or conduct was due to alcoholism.
  5. Last Chance Agreements can be used to require an employee to get substance abuse treatment, avoid further workplace problems, be tested for alcohol and not violate the company drug and alcohol policy. However, it should steer clear of any prohibition on alcohol use outside of work.