Tag: ADA

Does Asking About Employee’s Alcohol Use Violate the ADA?

In Lansdale v. UPS Supply Chain Solutions, Inc., No. 16-4106 (July 23, 2019), the United States District Court for the District of Minnesota concluded that a jury had sufficient evidence to find that an employer’s discharge of an employee for suspected corporate credit card abuse following an investigation in which the employee was asked about his alcohol use and drinking habits did not constitute disability discrimination in violation of the Americans with Disabilities Act (ADA) or corresponding state law.

Background

The employer had a policy prohibiting employees from using corporate credit cards for personal purchases and providing inaccurate expense reports. Following an audit that revealed discrepancies between the employee’s corporate credit card expenses and expense reports, the employer conducted an investigation. During the investigation, the employer interviewed the employee, who indicated that he had used his corporate card for personal charges in order to hide his alcohol consumption from his wife. During the interview, the employer asked the employee several questions about his drinking habits and how his drinking affected his health and family.  The following morning, the employer discharged the employee.

The employee contended that he had been asked impermissible disability-related questions and that his employment had been terminated based on his responses. Under the ADA, an employer “shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”

Analysis

The court found that the jury had been provided sufficient evidence to find that, even if the questions posed to the employee had been disability-related inquiries, the inquiries had not caused the termination of his employment; rather, the employee’s acknowledgement that he had used his corporate credit card for personal use was a sufficient evidentiary basis for a jury to find that this admission by itself was the reason for the termination.

Additionally, while alcoholism may constitute a disability under the ADA and corresponding state laws, this case confirms that an employee so claiming must still establish that he or she had an impairment that substantially limited one or more major life activities, or that the employer regarded him or her as having such an impairment, and that it was a motivating factor in the termination decision.

Conclusion

Here, the court found that a reasonable jury, weighing the credibility of the witnesses—in  particular, the employee’s own testimony about his alcohol consumption and how it impacted him, his wife’s testimony that he drank nightly, and his doctor’s testimony that he drank more than what was recommended (though the doctor never applied any diagnostic criteria or noted any serious concerns)—could have found that the employee failed to prove that he suffered from an impairment that substantially limited one or more of his major life activities, that the employer regarded him as having such an impairment, and that it was a motivating factor in the termination decision. In the end, the employee’s belated attempts to claim a disability to excuse his corporate credit card and expense report abuses were insufficient to establish a disability discrimination claim.

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more ADA questions see the Labor & Employment Law page on the National Law Review.

No Soup for You!

An 11-year-old boy required to eat his homemade, gluten-free chicken sandwich outside a restaurant on a school field trip will get to take his case to trial.

The boy sued the owner of the Shields Tavern in Colonial Williamsburg for violating the Americans with Disabilities Act and Virginia law. The tavern offered to make the boy a gluten-free meal, but the boy and his father declined. The boy suffers from a serious gluten allergy, and had gotten ill from cross contamination at other restaurants. The tavern then asked the family to eat outside, citing a public health concern.

In a divided decision, the Fourth Circuit allowed the case to proceed to trial. The court found factual issues remained about whether the boy’s gluten allergy created a disability, and whether his request to eat his own food was necessary, reasonable, and would fundamentally alter the nature of the restaurant, which tries to create a historic colonial experience for visitors.

Judge J. Harvie Wilkinson III wrote a blistering dissent, accusing the court of establishing an “almost per se rule” that forces restaurants “to give up control over their most valuable asset: the food they serve.” Read the opinion here: J.D. v. Colonial Williamsburg Found., No. 18-1725 (4th Cir. May 31, 2019).

©2011-2019 Carlton Fields, P.A.
Post By David A. Karp of Carlton Fields
Read more about Disability Rights on the National Law Review Civil Rights page.

Your Presence Is Required: Employee Unable to Travel to Job Site Was Not “Qualified” Within the Meaning of the ADA

In recent years, particularly with technology making it easier for employees to work remotely, courts have struggled to determine whether onsite attendance is an essential job function under the Americans with Disabilities Act (“ADA”).  This question is often dispositive because only qualified individuals—those who can perform a job’s essential functions with or without a reasonable accommodation—are protected by the ADA.  A federal court in South Carolina recently ruled that an employee who could not get to his worksite for a six-month period could not perform the essential functions of his job and thus his employer did not run afoul of the ADA in terminating his employment.  Dunn v. Faithful+Gould Inc., Case No. 6:15-cv-04382 (June 18, 2018).

Dunn worked as a chief scheduler for Faithful+Gould (“FG”) from 2011 until his termination in August 2014.  For the first eighteen (18) months of his employment, Dunn worked remotely from his house because no local office had been established.  In 2013, a local office was formed, and Dunn changed supervisors.  Dunn’s new supervisor did not allow Dunn or other schedulers to work from home.  In the summer of 2014, Dunn had two epileptic seizures.  According to his doctor, Dunn had no restrictions and could return to work, but he could not drive for six months because South Carolina law prohibits someone from driving within six months of an epileptic seizure.  Dunn requested that he be permitted to work from home until his driving privileges were restored.  While FG was willing to allow Dunn to work from home one day a week for a four-week period while Dunn figured out a long-term transportation solution, FG refused to allow Dunn to work from home daily for an extended period.  In September 2014, Dunn’s employment was terminated after he exhausted all leave available under the FMLA and company policy.

Despite the fact that Dunn’s job description made no reference to onsite attendance and despite the fact that he worked from home for the first eighteen months on the job, the court concluded that onsite attendance was an essential function of Dunn’s job.  The court gave significant weight to the judgment of Dunn’s supervisor that onsite attendance was essential and Dunn’s statements to his doctor that he could not perform his job from home.  The court also noted that Dunn’s job had changed, and while onsite attendance may not have been essential during his first eighteen months on the job, it was at the relevant time.  The court rejected Dunn’s argument that FG should have granted him extended leave as a reasonable accommodation while he waited the six months to be able to legally drive again.  The court ruled extended leave was not a reasonable accommodation because it would have required FG to reallocate Dunn’s essential job duties to other employees for an extended period of time.

Dunn illustrates well the case-by-case analysis required in determining whether a job function such as onsite attendance is essential and that the essential nature of a function can actually change over time.  Thus, in considering potential accommodations, employers should always conduct an individualized assessment to determine whether any job function, including onsite attendance, is an essential function of a particular position.

Dunn is consistent with the Sixth Circuit’s en banc decision in EEOC v. Ford Motor Company, discussed in a previous blog.

 

Jackson Lewis P.C. © 2018
This post was written by Jonathan A. Roth of Jackson Lewis P.C. 

Lawsuits Against Overtime Rule, Voluntary Wellness Program, ADA: Employment Law This Week – October 3, 2016 [VIDEO]

Employment, DOL, Overtime RuleStates, Businesses File Lawsuits Against Overtime Rule

Our top story: The U.S. Department of Labor (DOL) is facing a fight over its new overtime rule. Effective December 1, the new overtime rule will raise the minimum salary threshold required for white-collar exemptions under the Fair Labor Standards Act to $913 per week, more than doubling the current threshold. But Texas and Nevada are leading 21 states in a lawsuit challenging the DOL’s updated rule, and more than 50 business groups, including the National Retail Federation and the U.S. Chamber of Commerce, have brought a separate challenge. At the same time, the U.S. House of Representatives voted to delay the effective date of the new regulation by six months. These challenges are based on concerns that the new salary threshold would mean a big increase in costs for employers and oversteps the DOL’s authority. Kristopher Reichardt, from Epstein Becker Green, has more.

“This was obviously a coordinated effort to attack the new overtime regulations on multiple fronts. Both suits take slightly different paths to achieve the same objective. . . . The Eastern District of Texas, a conservative jurisdiction, is somewhat known for moving its docket along quickly, which is important to any challenge, since the new rules take effect in just two months, despite some congressional attempts to delay the rule until June 1 of next year. . . . Employers should absolutely continue to prepare for the overtime rule going into effect on December 1. It’s unlikely that these lawsuits would delay or stop these rules. Employers should expect that they will go into effect.”

Court Finds That Voluntary Wellness Program Does Not Violate the ADA

An employer’s voluntary wellness program survives an Equal Employment Opportunity Commission (EEOC) challenge. A lighting manufacturer in Wisconsin requires an anonymous health risk assessment in order to participate in its health plan. The EEOC filed suit against the company, claiming that the program violated restrictions in the Americans with Disabilities Act (ADA). The district court found that the program did not violate the ADA. But perhaps more importantly, the court deferred to the EEOC’s regulation stating that wellness programs are not covered by the ADA’s “safe harbor” and can violate the ADA if the exams are not voluntary.

Truthful Statements Protected Under NLRA, Even if Disparaging

Technically truthful statements are protected under the National Labor Relations Act (NLRA), even if they’re disparaging. A group of DirecTV technicians were fired after appearing on a local news station discussing a new company pay incentive. The incentive was tied to convincing customers to let DirecTV use landlines to track viewing habits. A split D.C. Circuit affirmed a National Labor Relations Board ruling in favor of the employees, finding that the technicians’ comments were based in truth and thus fell under the protection of the NLRA. Therefore, the company must reinstate the technicians.

Tip of the Week

To celebrate Global Diversity Awareness Month, we’re bringing you a diversity-focused “Tip of the Week” each episode in October. With us this week is William A. Keyes, IV, President of the Institute for Responsible Citizenship, with some advice on growing a diverse culture by demanding excellence.

“One of the things I notice is that the brightest young African-American men are often ignored when it comes to great opportunities. Now, you probably find that surprising, but that’s been my observation. . . . So, my argument is that for a top-tier company that is saying that it’s committed to attracting top talent of color, if you’re going to do that, you should really commit to it, state that commitment, and settle for nothing less. Having done that, you really take care of your retention problems, because you bring in people who are really talented. You set a high bar for them, high standards for achievement that you expect for them to meet, they do so. Not only do you retain them, but you create a culture that is attractive to other people who also want to pursue excellence.

ARTICLE BY George Carroll Whipple, III of Epstein Becker & Green, P.C.

©2016 Epstein Becker & Green, P.C. All rights reserved.

Rights of HIV-Positive Job Applicants and Employees

Job ApplicantsHIV infection is a disability under the Americans with Disabilites Act. What rights and responsibilities does an employer have in relation to HIV-positive applicants and employees? The EEOC recently clarified its position concerning HIV-positive individuals in the workplace in a press release, as well as documents addressing the rights of HIV-positive workers, including the right to be free from discrimination and harassment, and guidance to physicians in facilitating accommodations for those individuals.more

An HIV-positive applicant/employee can generally keep his or her condition private, unless he or she is requesting a reasonable accommodation, or if there is objective evidence (not based on “myths or stereotypes”) that he or she may be unable to do the job or poses a safety risk. Employers do not have to retain employees who are unable to perform, or who pose a “direct threat” to safety, defined by the EEOC as a significant risk of substantial harm even with a reasonable accommodation.

Of course, the applicant or employee is free to choose to reveal his or her status in response to an employer affirmative action program, and the employer may ask medical questions after a job offer has been made, but before employment begins, if everyone entering the same job category is asked the same questions. An employee may also have to discuss his or her HIV status with an employer in order to establish eligibility under other laws, such as the FMLA.

Physicians are reminded that nothing in the ADA alters legal and ethical privacy obligations to patients, and that they should disclose medical information to an employer only if and as authorized by the patient in a signed release. For example, a patient may request that his or her healthcare provider not disclose a specific diagnosis, in which case the physician may state, generally, that the patient has an “immune disorder,” rather than stating that he or she is HIV-positive. Providers may need to discuss an alternative accommodation with the employer, if an initially proposed accommodation would be too difficult or costly.

During FY2014, the EEOC resolved almost 200 charges of discrimination based on applicant/employee HIV status, obtaining more than $825,000.00 for those individuals.

ARTICLE BY Jami K. Suver of Steptoe & Johnson PLLC

© Steptoe & Johnson PLLC. All Rights Reserved.

EEOC Releases New Guidance on Rights of HIV-Positive Employees Applicable to Health Care Providers and Employers

In December 2015, the Equal Employment Opportunity Commission (EEOC) released new guidance for job applicants and employees with HIV infection that is particularly applicable to employers in the health care industry.  This guidance is applicable not only to applicants and current employees with HIV infection, but also to physicians and other health care providers who treat individuals with HIV infection to the extent their assistance is requested in obtaining workplace accommodations.

The first publication, “Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA,” discusses rights provided under the Americans with Disabilities Act (ADA).  Although the guidance is directed to applicants and employees with HIV infection, there are key takeaways for employers.  First, the EEOC emphasizes the workplace privacy rights of those with HIV infection, but reminds individuals that in certain situations an employer may ask medical questions about their condition.  Second, HIV infection should be treated as a disability and HIV-positive individuals are protected against discrimination and harassment at work because of the condition.  Finally, those with HIV infection may have a legal right to reasonable accommodations at work, which may include altered break and work schedules, changes in supervisory methods (e.g., written instructions from a supervisor), accommodations for visual impairments, ergonomic office furniture, unpaid time off (e.g., for treatment), and reassignment to a vacant position.

The second publication, “Helping Patients with HIV Infection Who Need Accommodations at Work,” informs physicians about their HIV-positive patients’ rights to reasonable accommodations at work.  While the guidance effectively coaches health care providers to advocate for their patients’ rights to accommodation, the EEOC reminds providers that that their legal and ethical obligations are not altered by the ADA.  Thus, providers should only disclose the medical information if requested by the patient and an appropriate release is signed.  Further, providers are reminded not to overstate the need for a particular accommodation in case an alternative accommodation is necessary.

Health care entities should be aware that, in its press release regarding the guidance, the EEOC continues to take the position that HIV-positive employees, even in health care settings, should not be excluded from jobs unless they pose a “direct threat” to safety, a strict standard under the ADA.  The EEOC—following CDC guidance—has said that “HIV-positive health care workers who follow standard precautions and who, except in specified circumstances do not perform specially defined exposure-prone invasive procedures, do not pose a safety risks in their employment based on HIV infection.”  For example, says the EEOC, an HIV-positive phlebotomist who draws blood does not pose a direct threat to patient safety based on her HIV-positive status if she follows standard precautions.

The EEOC guidance makes clear that HIV infection is a disability under the ADA.  Employers should be aware that applicants and employees have a right to privacy and, in most situations,  need not reveal the exact diagnosis of their medical illness. Employers should not unnecessarily inquire about the exact illness diagnosis if it is not needed for the purposes of determining reasonable accommodations.  Most importantly, health care employers should not use stereotypes or misinformation in evaluating patient safety implications for those employees with HIV infection.  Even in safety sensitive positions, an HIV-positive health care employee generally poses no safety risk when using standard precautions.  Health care employers should make sure that their front-line supervisors are also aware of the rights of their subordinates who may have HIV infection.

Article By Nathaniel M. Glasser & Jonathan K. Hoerner of Epstein Becker & Green, P.C.
©2016 Epstein Becker & Green, P.C. All rights reserved.

Death Threats against Co-Workers Defeat Employee Disability Discrimination Claim, Federal Court Rules

A depressed employee who was fired for threatening to kill his co-workers was not a qualified individual entitled to protection under the Americans with Disabilities Act, as the employee could not perform essential job functions, with or without an accommodation, a federal appeals court in San Francisco has ruled, affirming judgment in favor of the employer. Mayo v. PCC Structurals, Inc., No. 13-35643 (9th Cir. July 28, 2015). The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

Background

Timothy Mayo was a welder for PCC Structurals, a manufacturer of specialized aircraft parts. Mayo was diagnosed with major depressive disorder in 1999, but medication and treatment enabled him to continue working without incident until 2010, when he began to feel he was being bullied by his supervisor. Mayo told three different co-workers that he wanted to kill the supervisor. He told one co-worker that he felt like bringing a shotgun to work and “blowing off” the heads of the supervisor and another manager. He told another co-worker that he wanted to “bring a gun down and start shooting people.” Mayo said he wanted to start shooting at 1:30 p.m., because by that time all of his supervisors would be at the worksite, thereby presenting him with a maximally target-rich environment.

Mayo’s co-workers reported the threats to the employer. When questioned, Mayo told an HR representative that he “couldn’t guarantee” he would not carry out the threats. PCC immediately suspended Mayo and called the police. The police took Mayo into custody for six days on the basis that he was an imminent threat to himself and others. After his release from police custody, Mayo spent two months on Family and Medical Leave Act and Oregon Family Leave Act leave. Mayo’s psychologist and a nurse practitioner cleared him to return to work and suggested that Mayo be assigned a different supervisor. Instead, PCC terminated Mayo’s employment.

Mayo brought an Americans with Disabilities Act case against PCC, arguing that his threats were the result of his diagnosed major depressive disorder and that PCC Structurals failed to accommodate him (by following the suggestion of his doctor that he be assigned a different supervisor).

The District Court granted summary judgment to the employer, holding that Mayo could not establish a prima facie case of disability discrimination. Mayo was unable to show he could perform the essential functions of his job with or without a reasonable accommodation and, therefore, he was not a “qualified individual” under the ADA.

Expressed Homicidal Ideation in Workplace Bars ADA Discrimination Claim

The Ninth Circuit affirmed the lower court decision. Its holding was straightforward: Mayo was not a “qualified individual” under the ADA because he could not perform the essential functions of his job:

An essential function of almost every job [including Mayo’s] is the ability to appropriately handle stress and interact with others.

The logic of our holding is that compliance with such fundamental standards is an “essential function” of almost every job.

Writing for the panel, Judge John B. Owens stated that threatening the lives of one’s co-workers “in chilling detail” on multiple occasions indicates that an employee cannot appropriately handle stress and interact with others. The Court also held that, even when the threatening comments can be traced back to a disability, such as major depressive disorder, the employee’s inability to handle stress and interact with others renders him unable to perform essential job functions and negates a claim under the ADA.

The Ninth Circuit’s decision brings it in line with several sister Circuits that have held employers cannot be forced to choose between accommodating a disability and creating an unsafe workplace for other employees. The Court said:

The [ADA] does not require an employer to retain a potentially violent employee. Such a request would place an employer on a razor’s edge — in jeopardy of violating the [ADA] if it fires such an employee, yet in jeopardy of being deemed negligent if it returned him and he hurts someone. The [ADA] protects only “qualified” employees, that is employees qualified to do the job for which they were hired; and threatening other employees disqualifies one.

While acknowledging prior cases holding that conduct resulting from a disability “is considered to be part of the disability,” the Ninth Circuit ruled that when it comes to overt threats to kill co-workers, employers have no obligation to “simply cross their fingers and hope that violent threats ring hollow …. [W]hile the ADA and Oregon disability law protect important individual rights, they do not require employers to play dice with the lives of their workforce.”

Addressing Mayo’s claim that PCC Structurals should have reasonably accommodated him by following his psychologist’s suggestion that he be assigned a different supervisor, the Ninth Circuit stated:

Giving Mayo a different supervisor would not have changed his inappropriate response to stress – it would have just removed one potential stressor and possibly added another name to the hit list.

Implications

The Court was faced with a person clearly disabled by major depression who manifested that disability through very specific threats of violence. While being sensitive to the realities of mental illness, the Court ultimately was forced to decide whether safety of the workplace must take primacy over the otherwise extant protections of the ADA for disabled employees. The Ninth Circuit came down on the side of workplace safety. Its ruling can be summarized as “Safety first. ADA second.”

The decision applies only to misconduct that takes the form of violence (or the expression of homicidal or violent ideation in the workplace). The Court did not hold that all forms of employee misconduct fall outside the ADA. Indeed, it emphasized that its holding was limited to “the extreme facts . . . of an employee who makes serious and credible threats of violence.” It stated that employees who are rude, gruff, unpleasant, or anti-social may have a “psychiatric disability” and, thus, be a “qualified individual” under the ADA. Where non-violent misconduct stems from a disability, it will continue to be deemed a part of the disability, requiring employers to attempt accommodation to mitigate future disability-driven misconduct.

ARTICLE BY Andrew L. Pepper of Jackson Lewis P.C.

Jackson Lewis P.C. © 2015

United Airlines to Pay over $1 Million To Settle EEOC Disability Lawsuit

In a case that garnered nationwide attention, air transportation giant United Airlines Inc. has agreed to pay more than $1 million and implement changes to settle a federal disability lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.U.S. Equal Employment Opportunity Commission Seal

The EEOC’s lawsuit charged that United’s competitive transfer policy violated the Americans with Disabilities Act (ADA). The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would impose an undue hardship for the employer. By requiring workers with disabilities to compete for vacant positions for which they were qualified and which they needed in order to continue working, the company’s practice frequently prevented employees with disabilities from continuing employment with United, the EEOC said.

The consent decree settling the suit, signed by Hon. Judge Harry Leinenweber and entered today, requires United to pay $1,000,040 to a small class of former United employees with disabilities and to make changes nationally. United will revise its ADA reassignment policy, train employees with supervisory or human resource responsibilities regarding the policy changes, and provide reports to the EEOC regarding disabled employees who were denied a position as part of the ADA reassignment process.

This resolution concludes a lengthy and complicated lawsuit. Although the EEOC originally filed the lawsuit on June 3, 2009 in U.S. District Court for the Northern District of California – San Francisco, United successfully moved for a change of venue to the Northern District of Illinois. Bound by an earlier precedent which held that a competitive transfer policy similar to United’s policy did not violate the ADA, the lower court dismissed the EEOC’s case in February 2011.  However, in a decision reviewed by the full court, the Seventh Circuit agreed with the EEOC that EEOC v. Humiston Keeling, 227 F.3d 1024 (7th Cir. 2000) “did not survive” an intervening Supreme Court decision, U.S. Airways v. Barnett, 535 U.S. 391 (2002).  The Seventh Circuit reversed the lower court’s dismissal and found that “the ADA does indeed mandate that an employer assign employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to the employer.” The Supreme Court refused United’s subsequent request for review on May 28, 2013. EEOC Appellate Attorney Barbara Sloan handled the appeal and Supreme Court briefing for the agency.

“The appellate court’s decision provided an important clarification regarding an employer’s responsibility under the ADA to provide a reasonable accommodation so qualified employees may lead economically independent lives,” said EEOC General Counsel David Lopez. “I am pleased this major decision also served as a springboard for the strong monetary and non-monetary remedies in today’s resolution.”

EEOC Regional Attorney William Tamayo said, “If a disability prevents an employee from returning to work in his or her current position, an employer must consider reassignment. As the Seventh Circuit’s decision highlights, requiring the employee to compete for positions falls short of the ADA’s requirements. Employers should take note: When all other accommodations fail, consider whether your employee can fill a vacant position for which he or she is qualified.”

EEOC San Francisco Acting District Director Michael Connolly noted, “We commend United for agreeing to make these important companywide changes that will enable employees with disabilities to stay employed at jobs they are qualified to do, as was intended under the ADA’s protections.”

According to the company website, United Airlines has almost 84,000 employees in every U.S. state and in many countries around the world. The air carrier has the world’s most comprehensive route network, including U.S. mainland hubs in Chicago, Denver, Houston, Los Angeles, New York / Newark, San Francisco and Washington, D.C. and operates an average of nearly 5,000 flights a day to 373 airports across six continents.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

ARTICLE BY U.S. Equal Employment Opportunity Commission
© Copyright U.S. Equal Employment Opportunity Commission

Still Waiting for ADA and GINA Guidance on Wellness Incentives

Jackson Lewis P.C.

March is here. The EEOC’s perspective on wellness program incentives is not. Yet again.

In its Fall 2014 regulatory agenda, the EEOC stated it would be issuing in February 2015 amended regulations concerning the size of incentives an employer may offer, yet still have a “voluntary” wellness program under the ADA and GINA.  The EEOC listed these same amendments on its Spring 2014 regulatory agenda. The regulatory agenda is a preliminary statement of priorities under consideration and is not a binding commitment to issue the regulations on the stated date.

The EEOC noted on its agenda that these amendments were needed to address whether an employer’s compliance with HIPAA rules concerning wellness program incentives, as amended by the Affordable Care Act (ACA), also complies with the ADA. The EEOC added that an amendment would also address the size of inducements allowed under GINA “to employees’ spouses or other family members who respond to questions about their current or past medical conditions on health risk assessments.”

The allowed size of wellness incentives matters to the growing number of employers with wellness programs. The ACA has a clear compliance standard for such incentives.  Until 2014, the EEOC had stayed on the sidelines of the wellness incentive debate, not offering any guidance beyond its general view that if the incentive was too large, the program was not “voluntary.”

In 2014, the EEOC sued three employers, claiming the size of their wellness incentives (or penalties, depending on your perspective) transformed otherwise voluntary wellness programs into involuntary programs. In the third case, the EEOC sought to enjoin the company from continuing the incentives in its wellness plan. There was no claim that the incentives violated the ACA standard. Our report on that case is here.

At the oral argument on the injunction hearing, the court asked the EEOC numerous times to define the line between a lawful and unlawful incentive under the ADA and GINA. The EEOC declined to define a specific line. The court denied the EEOC’s injunction request.

More than a year ago, we posted that waiting for the EEOCs guidance on incentives under wellness programs is like waiting for Beckett’s Godot, where Estragon and Vladimir lament daily that Godot did not come today, he might come tomorrow. The waiting continues.

ARTICLE BY

Michael J. Soltis
OF
Jackson Lewis P.C.

DOJ Settlement Suggests Push to Expand ADA Coverage to All Websites and Apps

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The chance of future DOJ investigations justifies companies’ reviews of customer-oriented websites and apps for accessibility.

As consumers continue to use the Internet and their smartphones for their shopping in astonishing numbers, especially on this Cyber Monday, a recent Department of Justice (DOJ) settlement agreement raises questions and potential serious implications for any company with customer-oriented websites or mobile applications. The settlement agreement requires Ahold USA., Inc. and Peapod, LLC (Peapod) to make the www.peapod.com website and Peapod’s mobile applications accessible to the disabled, including persons with vision, hearing, and manual impairments. The settlement agreement demonstrates that the DOJ is reviewing and/or monitoring websites and mobile apps for accessibility and remains aggressive in its push to extend the requirements of Title III of the Americans with Disabilities Act (ADA) to all websites and mobile apps—even when the sites are unrelated to actual physical places of public accommodation. According to the settlement agreement, the DOJ concluded that www.peapod.com was inaccessible to the disabled after initiating a “compliance review” authorized by Title III and its implementing regulations.[1] Peapod, however, contested the DOJ’s conclusion that www.peapod.com and Peapod’s mobile apps were not ADA compliant.

The settlement agreement is particularly noteworthy because www.peapod.com is a purely online grocery delivery service, unrelated to a “brick and mortar” physical place of public accommodation. Most courts considering application of the ADA to websites require a website to have a “nexus” to a physical place.[2] In the past, the DOJ has required websites and mobile apps to be accessible—for example, in a March 2014 consent decree with H&R Block. However, unlike the H&R Block consent decree, which involved a website and mobile apps with a nexus to physical places, the Peapod settlement agreement requires that a website and apps with no nexus to a physical place be made accessible to the disabled. The Peapod settlement agreement therefore shows that the DOJ’s Notice of Proposed Rulemaking (NPRM), which is expected in March 2015, may require—in the words of the Abstract for the DOJ’s NPRM—the websites and apps of “private entities of all types,” even “[s]ocial networks and other online meeting places” to comply with the ADA.

The settlement agreement also indicates which standards the DOJ’s regulations eventually may require websites and mobile apps to meet. The settlement agreement requires www.peapod.com and Peapod’s mobile apps to comply with the Web Content Accessibility Guidelines 2.0, Level AA (WCAG 2.0 AA). The DOJ has required compliance with the WCAG 2.0 AA in the past, including in the H&R Block consent decree. The Peapod settlement agreement further requires Peapod to designate a Website Accessibility Coordinator to coordinate compliance with the agreement; adopt a Website and Mobile Application Accessibility Policy; post a notice on its home page on its accessibility policy, which would include a toll-free number for assistance and a solicitation for feedback; annually train website content personnel on conforming Web content and apps to the WCAG 2.0 AA; seek contractual commitments from its vendors to provide conforming content, or (for content not subject to a written contract) seek out content that conforms to the WCAG 2.0 AA; modify bug fix priority policies to include the elimination of bugs that create accessibility barriers; and conduct automated accessibility tests of the website and apps at least once every six months and transmit the results to the government. The settlement agreement, which stays in effect for three years, additionally provides that every 12 months, the Website Accessibility Coordinator must submit a report to the government that details Peapod’s compliance or noncompliance with the agreement. Peapod is not the only entity that will conduct testing under the settlement agreement. At least once annually, individuals with vision, hearing, and manual disabilities will test the usability of the Web pages. Notably, however, the settlement agreement does not impose damages or a civil penalty on Peapod.

There is a chance that the DOJ’s eventual regulations will differ from the standards to which the DOJ requires Peapod to conform. The settlement agreement accounts for that possibility. It states that if the DOJ promulgates final regulations on website accessibility technical standards during the term of the settlement agreement, the parties must meet and confer at either’s request to discuss whether the agreement must be modified to make it consistent with the regulations.

[1]. See 42 U.S.C. § 12188(b)(1)(A)(i) (“The Attorney General . . . shall undertake periodic reviews of compliance of covered entities under this subchapter.”); 28 C.F.R. § 36.502(c) (“Where the Attorney General has reason to believe that there may be a violation of this part, he or she may initiate a compliance review.”).

[2]. See, e.g., Nat’l Fed. of the Blind v. Target Corp., 452 F. Supp. 2d 946, 953–56 (N.D. Cal. 2011).

ARTICLE BY

Anne Marie Estevez
Beth S. Joseph
Christopher K. Ramsey
OF
Morgan, Lewis & Bockius LLP