Workforce Bulletin

By:      Kara M. Maciel

The EEOC is holding a public meeting tomorrow, May 8, 2013, to discuss wellness programs and how the EEOC should interpret them under the ADA, GINA and other laws. This is welcome news to the employer community, who has been left without any guidance from the agency since 2000 as to how it will enforce wellness programs. The uncertainty generated by this lack of guidance has hampered businesses from implementing, or expanding, effective wellness programs.   

As we have explained in previous articles, the EEOC regulations, and the EEOC’s Interpretive and ...

The April 2013 issue of Take 5 was written by David W. Garland, Chair of Epstein Becker Green's Labor and Employment Steering Committee and a Member of the Firm in the New York and Newark offices.

In it, he summarizes five recent labor and employment actions that employers should consider:

1. EEOC Releases Letter Addressing Wellness Programs and Reasonable Accommodation Obligations
2. Paying Interns May Not Be Enough to Stave Off Wage and Hour Claims
3. House Committee Votes Out Bill Prohibiting NLRB from Acting Without a Quorum
4. New York City Human Rights Law Expanded to Prohibit ...

A recent settlement agreement between the United States Department of Justice ("DOJ") and Lesley University in Cambridge, Massachusetts explicitly extends the protections of the Americans with Disabilities Act ("ADA") to individuals with severe allergies and autoimmune conditions such as celiac disease.

By Kara Maciel and Jordan Schwartz

As you know if you are a reader of our blog, in 2010 the U.S. Department of Justice (“DOJ”) published updated regulations under the Americans with Disabilities Act (“ADA”), which adopted the 2010 Standards for Accessible Design (“2010 Standards”). As we explained here, the 2010 Standards contain specific accessibility requirements for a number of types of recreational facilities, including swimming pools, wading pools and spas. As we also reported in this blog here, while the effective date of the 2010 Standards generally is ...

By Frank C. Morris, Jr. and Jordan B. Schwartz

An employer's wellness program—despite certain "penalty" provisions—was recently held not to be discriminatory under the Americans with Disabilities Act ("ADA") by the U.S. Court of Appeals for the Eleventh Circuit in Seff v. Broward County.  The Eleventh Circuit found the wellness program, sponsored by Broward County, Florida ("County"), was established as a term of the County's insured group health plan and, as such, fell under the ADA's bona fide benefit plan "safe harbor" provision.  This ruling is welcome news for employers with or considering wellness programs.

However, if the County's wellness program had not been found to be a part of the County's health benefits plan, then potential plaintiffs or the Equal Employment Opportunity Commission ("EEOC") would likely have argued that the wellness program runs afoul of the EEOC's views on "voluntariness" requirements for employer-sponsored wellness programs.

The ADA's Impact on Wellness Programs

Wellness initiatives seek to boost employee productivity and reduce both direct and indirect medical costs, which are desirable outcomes for employers.  Employer-sponsored wellness programs have grown exponentially over the past decade, as employers have increased their focus on controlling health care costs and improving the overall safety and health of employees.  According to recent studies, approximately 46% of participating employers had implemented wellness programs.  Despite the growing popularity and positive aspects of wellness programs, legal uncertainties surrounding these programs—including restrictions imposed by the ADA, the Genetic Information Nondiscrimination Act ("GINA"), and the Health Insurance Portability and Accountability Act ("HIPAA")—have presented obstacles to their implementation and growth.

Certain ADA restrictions have contributed to many employers declining to start wellness programs. Specifically, the ADA prohibits employers from making disability-related inquiries or requiring medical examinations of prospective or current employees unless they are job-related or subject to a business necessity exception. On the other hand, voluntary medical exams are permitted so long as the information obtained is kept confidential and not used to discriminate. There is little guidance, however, either from the courts or the EEOC, analyzing whether an employer-sponsored wellness program that encourages participation by providing incentives, or penalizes non-participation, can be considered "voluntary" and therefore permissible under the ADA.

The ADA has certain safe harbors for insurers and bona fide benefit plans that exempt such programs from ADA restrictions. Under these safe harbors, employers, insurers, and plan administrators are permitted to establish a health insurance plan that is "bona fide" based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with state law. Thus, if a wellness program qualifies for the ADA's safe harbor provision, an employer need not worry whether such program otherwise would have been considered voluntary. Notably, the EEOC has not addressed wellness programs and the ADA's safe harbor provision.

Seff v. Broward County

In October 2009, the County adopted a wellness program for its employees as part of its health plan open enrollment. The wellness program consisted of three parts: (1) a biometric screening consisting of a "finger stick" to measure glucose and cholesterol; (2) disease management for five specified conditions; and (3) an online Health Risk Assessment ("HRA"). Participation in the program was not required as a condition of participation in the County's health plan, but employees who did not undergo the screening or complete the HRA incurred a $20 bi-weekly charge subtracted from their paychecks.

In response to this program, current and former County employees who enrolled in the County's health insurance plan and incurred the $20 bi-weekly fee filed a class action lawsuit in the U.S. District Court for the Southern District of Florida. They alleged that the wellness program's biometric screening and online HRA violated the ADA's prohibition on non-voluntary medical examinations and disability-related inquiries. The County argued that its wellness program was part of its health plan and, as such, fell under the ADA's safe harbor provision.

The primary question addressed by the district court was whether the wellness program was a "term" of a bona fide benefit plan, which would allow it to come within the ADA's safe harbor provision for such plans. In granting summary judgment to the County, the district court determined that the program was indeed a "term" of the County's group health plan based on the following three factors:

1. The health insurer offered the wellness program as part of its contract to provide insurance, and paid for and administered the program;
2. The wellness program was available only to plan enrollees; and
3. The county presented a description of the wellness program in at least two employee benefit plan handouts.

By: Kara M. Maciel and Jordan Schwartz

A recent allegation of disability discrimination from the parents of a three-year old boy with special needs has resulted in a national fitness club chain revising its policies and procedures and implementing staff training.  The alleged discrimination occurred after the child had been playing with toys in the fitness club’s Kids’ Club and had refused to move from his position in front of a slide.  Upon learning from his parents that he had autism, a staff member informed them that, had the staff known that he was autistic, they would not have ...

By Matthew Sorensen and Dana Livne

One of the major ways in which American employment law has traditionally differed from its British counterpart has been its entrenched employment “at-will” doctrine. The “at-will” employment doctrine provides employers with the right to terminate their relationships with their employees at any time, with or without notice or cause.  UK companies doing business in the US are often relieved to be advised that they become “at-will” employers to their US-based employees. In the US, unless an employer has entered an employment contract ...

Guest post by Kara Maciel

In a settlement that all financial service companies should be aware of, Century Heritage FCU, recently resolved a class action lawsuit concerning the accessibility features of its automatic teller machines (“ATMs”).  Under the Americans with Disabilities Act (“ADA”), banks, credit unions and financial service companies must make their ATMs accessible for individuals with disabilities.  In the settlement, Century Heritage agreed to update its ATMs within 90 days to offer accommodations for blind and visually impaired customers.  The credit ...

By:  Kara Maciel

On March 15, 2012, the U.S. Department of Justice (“DOJ”) had temporarily postponed compliance with the 2010 ADA Standards as it relates to providing accessible entries and exits to pools and spas.  That day was set to expire later this month, on May 21, 2012, but the DOJ has announced that it will extend that compliance date to January 31, 2013 – a nine month extension from the original compliance date of March 15, 2012.

This extension to January 31, 2013, however, does not change the substance of the DOJ’s requirement that lifts be “fixed.”  The DOJ failed to ...

By:  Kara M. Maciel

Today, March 15, marks the effective date of the 2010 ADA Standards for hotels, restaurants, retailers, spas, golf clubs and other places of public accomodation.  As we have written about previously, there are several new requirements and obligations that the hospitality industry must implement in order to ensure their properties are compliant with the new regulations.  Below are five steps every hospitality owner and operator should consider to avoid costly fines and lawsuits:

1.  Implement new reservation policies for blocking off rooms and ensuring ...

By:      Mark M. Trapp

In these challenging economic times, many private clubs are finding it increasingly difficult to attract new members, or to retain existing members.  Over the last few years many clubs have lost members, and many more are facing substantial drops in revenues due to a decline in money spent by members on activities such as golfing or dining out.  Many golf, country and social clubs are finding it difficult to sustain their amenities and level of service. 

Because the economic situation is decreasing the potential membership pool, many clubs are offering incentives to ...

By: Kara M. Maciel

As hoteliers and hospitality employers know, the upcoming March 15, 2012 deadline for the 2010 ADA Standards will have significant impact on hotel operations. Some of the regulations involve new features that previously had not been regulated by the ADA, including swimming pools, spas, exercise facilities, golf and sauna and steam rooms.  All newly constructed recreational facilities built after March 15, 2012 must comply with the new standards; whereas, existing facilities must meet the new standards as soon as readily achievable.  For hoteliers, some of ...

by:  Matthew Sorensen

 1.      Deadline For Compliance With New ADA Accessibility Rules Approaching:

 On March 15, 2012, hospitality establishments will be required to be in compliance with the standards for accessibility set by the Department of Justice’s final regulations under Title III of the ADA (2010 ADA Standards). The regulations made significant changes to the requirements for accessible facilities, and will require additional training of staff on updated policies and procedures in response to inquiries from guests with disabilities. Among the most significant ...

By:      Forrest Read

The new Americans with Disabilities Act (“ADA”) standards (the “2010 Standards”), set to take effect on March 15, 2012, create new compliance obligations and contain technical specifications impacting what have become fixtures in most hotel lobbies or common areas: automatic teller machines (“ATMs”).  As is customary when new standards are set to take effect and become enforceable, hotels with existing ATMs want to know whether and how their ATMs will be impacted by the 2010 Standards and whether they will be afforded any safe harbor protections for ...

By:  Kara M. Maciel and Casey Cosentino

The U.S. Equal Employment Opportunity Commission (EEOC) continues its aggressive quest to challenge “inflexible” medical leave policies, as Denny’s Inc. agreed earlier this month to pay $1.3 million to settle a nationwide class action lawsuit. Denny’s also entered into an injunction barring its restaurants from future violations of the Americans with Disabilities Act (ADA), including denying disabled employees reasonable medical leave and retaliating against employees for bringing disability discrimination claims.

The ...

EBG is holding its annual NY briefing for clients and friends on Oct. 28. This full-day program will feature a special, two-hour workshop just for employers in the hospitality and retail industries, updating the many recent and significant labor and employment law developments affecting the industry. We will provide real-world guidance on how to manage the risks your company faces from increasingly aggressive plaintiffs' lawyers and government investigators who have openly and unabashedly targeted the industry.

Topics on the workshop agenda include:
 

• Wage and hour class ...