Working From Home as a Reasonable Accommodation Under the ADA: Credeur v. State of Louisiana

In today’s hyper-connected society, there are an increasing number of employers who have instituted policies permitting their employees to work from home in certain circumstances. The U.S. Court of Appeals for the Fifth Circuit, however, held that is not the case for litigation attorneys.  In-office attendance is an “essential duty” for a litigation attorney in the context of the American with Disabilities Act (ADA).”

Renee Credeur, a litigation attorney working in the Attorney General’s office in Louisiana was granted a temporary accommodation to work from home following a kidney transplant. After approximately six months, her supervisor denied her continuing request to work from home and Credeur filed a lawsuit alleging, among other claims, failure to accommodate under the ADA. The District Court for the Middle District of Louisiana granted summary judgment in favor of the Attorney General’s office and Credeur appealed. Continue reading »

EEOC: Discrimination Based on Sexual Orientation and Gender Identity is Prohibited

In its list of protections against discrimination, Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity. However, the Equal Employment Opportunity Commission (EEOC) interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.

As its legal basis for concluding that sexual orientation and gender identity are covered by Title VII, the EEOC uses Supreme Court case Price Waterhouse v. Hopkins, which holds employment actions motivated by gender stereotyping are unlawful sex discrimination, along with more recent court decisions(Chavez v. Credit Nation Auto Sales, L.L.C.; Baker v. Aetna Life Ins., et al.; Fabian v. Hosp. of Central Conn; Lewis v. High Point Regional Health Sys.; Hively v. Ivy Tech Cmty. Coll. of Indiana). Although Congress has not amended Title VII to specifically include sexual orientation and gender identity as protected, the EEOC has applied existing Title VII precedents to sex discrimination claims raised by LGBT individuals. The EEOC states these protections apply regardless of any contrary state or local laws; however, the Missouri Court of Appeals appears unfazed. Continue reading »

Uncertainty Leads to Proposed Easing of Wellness Program Regulations

In response to many complaints about the trials and tribulations employers face when initiating a compliant wellness program due to the inconsistent requirements of HIPAA, EEOC, GINA, and the ADA, Congress has taken some corrective steps.  The House of Representatives reintroduced H.R. 1189, and the Senate reintroduced their own version of the bill, S.620.

The stated purpose of H.R. 1189 is to “clarify rules relating to nondiscriminatory employer wellness programs as such programs relate to premium discounts, rebates, or modifications to otherwise applicable cost sharing under group health plans.”  The bill declares that a workplace wellness program, by offering a reward to participants, does not violate the ADA or GINA, as long as the program complies with Public Health Service Act requirements.  These requirements can be found in 42 U.S.C. § 2705(j).

The bill also deems the collection of information about a family member’s manifested disease or disorder not an unlawful acquisition of genetic information with respect to another family member participating in a workplace wellness program. Continue reading »

New EEOC Rules Complicate Task of Designing a Compliant Employer Wellness Program

In 2016, after years of twists and turns, backs and forths, the Equal Employment Opportunity Commission (EEOC) issued final rules that went into effect in January 2017 and apply to all employer group health insurance plans that offer wellness programs.

The final rules follow the EEOC’s 2015 publication of two rules under the Americans with Disabilities Act (ADA) and Genetic Information Non-Discrimination Act (GINA) to address whether an employer offering an incentive to employees to provide health information would effectively render the program “involuntary” and consequently discriminating under the ADA.

In October 2016 AARP filed a challenge arguing that the requirements were arbitrary and capricious under the Administrative Procedures Act (APA) as having incentives that render the disclosure of GINA- and ADA-protected information involuntary and disclosure in violation of law. That challenge was rejected in the District Court of the District of Columbia, which ruled the information required by the regulations is not public disclosure and employers are statutorily forbidden from using it to discriminate against employees.

Categories of Employer Wellness Programs

Employer wellness programs generally fall into two categories: participatory programs and health-contingent programs. Participatory programs offer financial incentive for employee participation, but do not require the employee to satisfy any health-related condition to receive the incentive. Examples of this program include reimbursing for gym memberships and offering health education classes.

On the other hand, health-contingent programs generally require the employee to satisfy a health-related standard to obtain a reward. Within the category of health-contingent programs, there are two sub-groups:  activity-only programs and outcome-based programs. Activity-only programs require the employee to participate, but not to attain or maintain a specific health outcome.  Examples of activity-only programs include rewards for high step-counts and dieting. Outcome-based programs require the employee to attain a specific health goal, such as quitting smoking or lowering one’s body mass index (BMI).

Requirements for Health-Contingent Programs Under the ACA, GINA, and ADA Challenged by AARP

Prior to the new EEOC rules, employers sponsoring wellness programs were required to comply with the Affordable Care Act (ACA), ADA and GINA. Continue reading »

Uncertainty Regarding the Department of Labor’s Salary and Overtime Regulations

A federal district court in Texas has delayed the enforcement of the Department of Labor’s changes in overtime regulations.

In May 2016, the Department of Labor published a final rule that has caused a fury of scrambling amongst employers, in both the public and private sectors, to review their employee’s salary levels and exempt statuses. This final rule relates back to the Fair Labor Standards Act (“FLSA” or the “Act”), enacted in 1938, which set minimum wages and provided for overtime pay for hours worked above 40 in a week. Section 213(a)(1) of the Act, however, exempted overtime provisions for any employee employed in a bona fide executive, administrative, or professional capacity. This is known today as the “EAP” or “white collar” exemption. The Act also gave the Department of Labor regulatory authority to “define and delimit” those exemptions.

The current regulations concerning the white collar exempt status, promulgated in 2004, required an employee to meet three criteria. First, an employee must be paid on a salary basis (the “salary-basis test”). Second, an employee must be paid at least the minimum salary level established by the regulations (the “salary-level test”). And third, an employee must perform executive, administrative, or professional duties (the “duties test”). See “It’s Almost Time: DOL Overtime Exemption Rules Effective Dec. 1, 2016” for more information on the current regulations.

The final rule, previously scheduled to be enforced December 1, 2016, revamped the white-collar exemption by increasing the salary-level test from $23,660 to $47,476. Any employee earning less than the new amount, but still paid on a salary basis and meeting the duties test, would be entitled to overtime pay at one and one-half times the employee’s regular rate of pay for all hours worked above 40 in a week.

Employers had a few options to become compliment with the final rule and avoid paying overtime, most popular were: Continue reading »

Eighth Circuit Interprets Missouri Law: Non-Compete Agreements May Be Transferred to Subsequent Employer

In Symphony Diagnostic No. 1, Inc. d/b/a/ MobilexUSA v. Greenbaum, the Eighth Circuit Court of Appeals recently addressed the question of whether a successor company in Missouri may enforce a predecessor company’s non-compete agreements in situations where the successor company purchases the predecessor company’s assets. Missouri law already provides that assignment is allowed in situations where there is an acquisition of stock.  Alexander & Alexander, Inc. v. Koelz, 722 S.W. 2d 311, 312 (Mo. Ct. App. 1986).

In MobilexUSA v. Greenbaum, Kimberly Greenbaum and Josephine Tabanag worked for Ozark Mobile Imaging as X-ray technicians.  Both employees signed non-compete agreements.  The non-compete agreement prohibited the employees from “directly or indirectly engaging in the mobile diagnostic business in any manner” for two years after their employment terminated and within a specified 100-mile radius geographical area.

In December 2012, Mobilex acquired Ozark Mobile Imaging through an Asset Purchase Agreement.  Mobilex offered Greenbaum and Tabanag employment, but they both refused.  In January 2013, they each accepted new positions as mobile X-ray technicians at Biotech X-ray, Mobilex’s competitor. Continue reading »

Eighth Circuit Rejects Obesity as an Impairment Under the ADA: Morriss v. BNSF Railway Company

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) was enacted for the purpose of broadening the scope of the American with Disabilities Act (ADA). The ADAAA expanded the definitions of “major life activities” and “substantially limits,” while also increasing protection for those who are “regarded as” having a disability.  Over the years, the ADAAA has been criticized for being too broad.  However, three circuits have now rejected the idea that obesity, without an underlying physiological disorder or condition, is a disability under the ADA.

In Morriss v. BNSF Ry. Co, Case No. 14-3858 (8th Cir. April 5, 2016), the Eighth Circuit Court of Appeals affirmed a Nebraska district court’s decision, ruling that for obesity to constitute an “impairment” under the ADA, one must prove that the obesity is the result of a physiological disorder or condition.

In March 2011, Melvin Morriss, applied for a machinist position with BNSF Railway Company (“BNSF”). Morriss was extended an offer of employment contingent on a satisfactory medical review.  A subsequent physical examination indicated that Morriss was 5’10”, 285 pounds, with a BMI of 40.9. BNSF’s policy was to not hire obese (defined as having a BMI of 40 or higher) applicants for safety sensitive positions. Therefore, Morriss was notified that he would not qualify for the safety sensitive machinist position due to his obesity. Continue reading »

Effect of 2015 SCOTUS Same-Sex Marriage Decision on Employment Practices

The U.S. Supreme Court held in Obergefell v. Hodges that there is a constitutional right to marry and that the 14th Amendment’s Due Process and Equal Protection clauses require states to allow same-sex marriages and to recognize same-sex marriages lawfully performed in other states.

The Obergefell decision is not an employment decision. However, the Equal Protection language in the opinion will require companies to make some changes to their employment practices, training, manuals, forms, beneficiary designations, and other personnel policies going forward.

Obergefell followed the Supreme Court’s decision in United States v. Windsor which held that the federal government’s interpretation of “marriage” and “spouse” must apply to both opposite sex and same-sex unions. Windsor made employee benefits like the Family Medical and Leave Act (“FMLA”), COBRA, and the Employee Retirement Income Security Act (“ERISA”) available to all same-sex spouses of federal employees.

What Does Obergefell Mean To Employers? Continue reading »

Exempt Employees, Overtime, and the Proposed DOL Rule for 2016

The labor landscape has changed and it will continue to change. The average worker has become increasingly responsible for the more traditional aspects of the employment relationship including health insurance, pension, and job security. There also has been a substantial increase in the numbers of part-time workers, workers/employees classified as exempt from overtime premium pay, and workers misclassified as independent contractors. Commentary and theory abounds as to the reason for the loss of full-time jobs, much less middle class jobs, including outsourcing, computers/software, Affordable Care Act, robots, automation, high taxes, globalization, etc.

Suffice it to say, a legal backlash is building against this new terrain. Proposed restrictive legislation, administrative rule-making, and recent court cases show evidence of a concerted attempt to re-create or retrieve the job security and wages and benefits of days gone by.

Most recently, the U.S. Department of Labor (“DOL”), in a long-awaited announcement on June 30, 2015, proposed a new rule that will decrease the ability of companies to classify their employees as exempt from premium overtime wages under the Fair Labor Standards Act (“FLSA”).

Backdrop – Increase in Part-time Workers

This legal backlash is due, in part, to other recent and dramatic changes in the number of part-time workers:

• Since 2007, the number of “involuntary” part-time workers has doubled.
• Employers are increasingly using software tools such as the use of just-in-time scheduling software. Estimates are that 17 percent of the work force is now employed by companies that use just-in-time scheduling software. Employees accordingly work fluctuating work weeks with uncertain schedules.
• Another contributing factor is business practices, such as the use of “call in shifts” where the employer does not confirm need for services until two hours before start time.

In response, a host of bills are being introduced in many states and municipalities to legislate predictable scheduling.

Backdrop – Misclassification

Likewise, misclassification of workers has also increased. Companies are attempting to shift work from employees to independent contractors, especially in the construction, transportation, and cab industries using a variety of strategies. Continue reading »

OSHA Finalizes Rules Requiring Health Care Employers to Report Injuries

The federal Occupational Safety and Health Administration (OSHA) implemented rules on January 1, 2015 which place additional requirements on employers under OSHA jurisdiction (and with greater than 10 employees) to report occupational injuries and illnesses. This new data is going to be made public, which would allow individuals, companies, or labor unions to view injury reports submitted by health care providers.

Currently, employers in Missouri are required to report work injuries to the state if an employee sustains an injury at work requiring medical treatment beyond immediate first aid. The information is not made public, but is rather provided only to the state as a reporting requirement. In fact, workers’ compensation trials or hearing are not generally open to the public. Express consent is usually required of the parties or their attorneys for a member of the general public to watch these court proceedings.

Under the current OSHA regulations, fatalities must be reported within eight hours. The regulations add additional requirements and require all employers to report work-related in-patient hospitalizations, as well as amputations or incidents where someone loses an eye, within 24 hours. Continue reading »