Tag Archives: seventh circuit

Contraceptive Mandate Accommodation Requirements Are Holding Strong Despite Recent Supreme Court Opinion

Contributed by Jamie Kauther

There have been very few if any health care policies as controversial as the Affordable Care Act (ACA).  One of its most talked about provisions, the contraception mandate, again made headlines this past month, especially here in the Seventh Circuit.  Unless you were living under a rock or enjoying a tropical vacation without Wi-Fi last July, you’ve heard of Burwell v. Hobby Lobby, 134 S. Ct. 2751 (2014), the Supreme Court decision that held corporations controlled by religious families cannot be required to pay for contraception coverage for their female workers, contrary to the contraception mandate found in the ACA.   This decision sparked the attention of the nation but, although lost in most of the media coverage, was a decision that applied to only a handful of employers.

Just last month, the Supreme Court revived the University of Notre Dame’s challenge to the contraceptive mandate accommodation under the ACA that applies to religious nonprofit organizations (RNO).  This accommodation to the customary mandate requires RNOs to tell the Health and Human Services Department in writing that they object to the mandate on religious grounds and their insurance provider must then provide the mandated contraception coverage.  In its February 2014 decision, Univ. of Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014), the Seventh Circuit upheld the accommodation and denied Notre Dame’s argument that it was unenforceable.   However, just last month the Supreme Court vacated the decision and asked the Court to determine if the subsequent Hobby Lobby decision impacts the outcome.  The parties filed their respective position briefs on April 7th.  The government argued Hobby Lobby has no impact and the accommodation should remain, while faith-based Notre Dame argued it’s a substantial burden against religious beliefs and thus the prior decision must be reversed.

What does this mean for employers?  If you are not a closely held corporation controlled by a religious family (a very small group qualifies), or a RNO (albeit a much larger group), this means nothing.  If you are an RNO, it is important to remember your contraceptive mandate accommodation requirements are still intact.   The Supreme Court did not attack the Seventh Circuit’s decision, it did not waive the accommodation requirement for RNOs, and it did not extend Hobby Lobby to apply to any other employer group.   As such, there should be no change in policy or practice and there should be no expectation that a change is imminent as the Seventh Circuit is anticipated to affirm its prior ruling.

What a Trip – Employee’s Travel to Vegas With Terminally Ill Mother Is Covered By FMLA

Contributed by Beverly Alfon

A few weeks ago, the Seventh Circuit federal appellate court (Illinois, Indiana and Wisconsin) held that an employee’s absence from work was protected by the Family Medical Leave Act – even though she was on vacation with her terminally ill mother in Las Vegas.   Ballard v. Chicago Park District, Case No. 13-1445 (7th Cir. Jan. 28, 2014).

There was no question that Ballard provided daily care to her mother.  However, when she requested FMLA leave to travel with her mother to Las Vegas, Ballard’s employer denied the request.  Ultimately, the employer terminated her for the unauthorized absences that she accrued as a result of the Vegas trip.

The question before the Court was whether or not the family-care provisions of the FMLA entitle an eligible employee to leave “[i]n order to care for” a family member with a serious health condition, even if it is for travel unrelated to medical treatment.  29 U.S.C. § 2612(a)(1)(C).   The Seventh Circuit held that the FMLA broadly refers to “care” and does not limit it by geography or to ongoing “medical treatment”.  The court reasoned that,

“…[the mother’s] basic medical, hygienic, and nutritional needs did not change while she was in Las Vegas, and [Ballard] continued to assist her with those needs during the trip.  In fact, as the district court observed, [Ballard’s] presence proved quite important indeed when a fire at the hotel made it impossible to reach their room, requiring Beverly to find another source of insulin and pain medicine.  Thus, at the very least, Ballard requested leave in order to provide physical care.  That, in turn, is enough to satisfy 29 U.S.C. § 2612(a)(1)(C).”

It should be noted that the Seventh Circuit’s decision is contrary to the positions of the 1st Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island) and 9th Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington), which have held that travel unrelated to medical treatment is not supported by the FMLA.  However, the 7th Circuit Court countered, “[N]one of those cases explain why certain services provided to a family member at home should be considered ‘care,’ but those same services provided away from home should not be.”

Bottom Line:  If you are an Illinois, Indiana or Wisconsin employer and an FMLA-eligible employee seeks leave to care for his/her family member with a serious health condition, that protected leave extends to basic care for the family member – regardless of the location of the care. 

Seventh Circuit Reminds Employers: “100% Healed” Policies Create Huge ADA Risk

Contributed by Jon Hoag

Employers that require employees to be 100% healed, 100% recovered, or to obtain a “full release” before returning to work often have the safety and well being of the impaired/injured employee in mind.  However, if the 100% rule is applied to an employee covered by the ADA, the employer commits a per se violation of the law.  The Seventh Circuit recently addressed this issue and sent a reminder to employers that the ADA requires employers to conduct an individualized assessment of the person and the position held to determine if the person is qualified to perform the job with or without a reasonable accommodation.  A “100% healed” policy simply does not allow for an individualized assessment as required by the ADA, so it constitutes a per se violation of the ADA if applied to a person covered by the Act.

The Seventh Circuit did rule against the employee because the employee could not establish that he had a disability covered by the ADA.  However, it should be noted that the pre-amended version of the ADA applied to the case, so the employee had a heightened burden to establish that he was covered by the ADA.  The Seventh Circuit explained that the per se rule did not apply only because the employee was not covered by the ADA. 

The Seventh Circuit refused to join other circuits that have declared that a “100% healed” policy can be used as circumstantial evidence that the employer “regarded” the employee as substantially limited in the major life activity of work.  The Seventh Circuit believes employers are free to be risk averse and require that its employees are 100% healthy as long as those employees are not covered by the ADA.  Given the low threshold to be covered under the Amended ADA – and the uncertainty of whether the Seventh Circuit’s position will ultimately prevail – employers should take the more prudent course…trash the 100% healed policies and conduct an individual assessment in each and every return-to-work situation.

Read the Seventh Circuit’s decision here.