Transcript Document

How the ADA Might Dampen Spirits This Holiday
Season
Robin G. Frederick
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© Shipman & Goodwin LLP 2014. All rights reserved.
December 10, 2014
HARTFORD | STAMFORD | WASHINGTON, DC | GREENWICH | LAKEVILLE
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Webinar Roadmap
• The statutory framework of the ADA
• ADA issues relating to non-physical disabilities
► Alcoholism;
► Drug Abuse; and
► Stress-related disabilities
• Risks associated with wellness programs
► Voluntary Medical Examinations
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The Americans With Disabilities Act “101”
• Federal statute that prohibits employers from discriminating
against individuals with a “disability”
• Applies to employers with 15 or more employees
• Generally obligates covered employers to:
► Ensure equal opportunities in selecting, testing, hiring,
and advancement for disabled individuals;
► Provide reasonable accommodations for disabled
individuals
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Who is Protected by the ADA?
• Two-Part Test for plaintiffs:
1. Individual must be “disabled” under one of three definitions:
Physical or mental impairment that substantially limits
one or more major life activities;
► Having a record or history of such an impairment; or
► Being “regarded as” disabled by an employer
►
2.
Individual must be qualified to perform essential functions of
job held or sought with or without reasonable accommodations
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2008 Amendments Act (“ADAA”)
In 2008, the ADA Amendments Act was passed to
restore the intent and protections of the ADA
…It dramatically expanded ADA coverage to
combat conservative interpretations by courts
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ADAA
2008 Amendments expanded scope of “major life
activities”:
►
►
Non-Exhaustive list: Caring for oneself, performing manual tasks,
seeing, hearing, eating, sleeping, walking, standing, lifting, bending,
speaking, learning, reading, concentrating, thinking, communicating,
and working;
“Major life activity” also includes operation of a major bodily function,
such as immune system, digestive, cell growth, bowel, bladder,
neurological, brain, respiratory, circulatory, endocrine, and
reproductive functions
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ADA’s Two-Part Test – “Disability”
1. Before one is afforded protection under the ADA, he
or she must have a “disability”
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A Spoonful of Sugar
Diane is a an office administrator at “Big Ben’s, LLP.”
She has type I diabetes, injecting herself daily with
insulin. With the insulin, Diane’s diabetes is firmly
under control
Does Diane have a “disability” under the ADA?
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Yes. Diane’s diabetes substantially limits a major life activity
(eating). Under the ADAA amendments, it is irrelevant that
her impairment may be controlled through medication or
other auxiliaries.
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“Record of” a Disability
• “Record of” an impairment substantially limiting a major life activity
► Based on medical, education, or employment records
► Impairment must have substantially limited major life activity
► Also applicable to impairments in remission, e.g., cancer
► Typically used in reasonable accommodation claims
► Fewer cases will probably be brought under this prong because, in
light of the ADAA, the “actual disability” and “regarded as” prongs
are easier to satisfy.
 For example: Disabilities in remission will now likely be
considered to be an “actual disability”
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“Regarded as” Disabled
• The ADA prohibits an employer from discriminating against
an employee that it perceives as being disabled
► Perceived impairments need not “substantially limit a
major life activity” (Under the ADAA)
► Not applicable to minor impairments
• Hoback v. City of Chattanooga: Police officer was “disabled”
because his employer terminated him based upon its
perception that he was unfit for duty as a result of PTSD.
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“Regarded as” Exclusion
Individuals that are merely “regarded as” disabled by an
employer are not entitled to a reasonable
accommodation.
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A Sticky Situation
Sandra owns “Jammy Dodgers,” a store that specializes in jams and other fruit
preserves. She has owned the business for 13 years and employs 20 people.
One of her employees, David, was recently diagnosed with Crohn’s Disease.
Upon learning about this, Sandra asked David, “How are you going to
effectively perform your job with this disability?”
Two weeks later, Sandra terminated David because she was concerned that his
illness would severely affect his reliability in the workplace.
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• Why is Sandra’s conduct unlawful under the ADA?
1. She perceived David as having a disability and
2. She discriminated against David based upon her
perception
3. Recall, it is irrelevant whether she perceived David’s
impairment as substantially limiting a major life
activity
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Two-Part Test – “Qualified”
2. One must also demonstrate that he or she is a
“qualified” individual
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Qualified Individual
• One who with or without a reasonable
accommodation can perform the essential functions
of the employment position that the individual holds
or desires
► Do they possess prerequisites for the job?
► Can they perform essential functions of the job?
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Reasonable Accommodations
• An employer may be liable for an ADA violation if it
fails to provide a reasonable accommodation for a
disabled and qualified individual
• Examples of reasonable accommodations:
 Physical changes;
 Modified Work Schedules; and
 Job Restructuring or Reassignment
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Reasonable Accommodation?
Mary, a cashier, has lupus; as a result, she becomes easily
fatigued and has difficulty making it through her shift. She
requests a chair from her employer, alleging that sitting greatly
reduces the fatigue.
The stool is a reasonable accommodation because it addresses the
employee’s problem and enables her to perform her job
effectively with no undue hardship to the employer
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Unreasonable Accommodations
• Under the ADA, an employer need not provide an
accommodation that is unreasonable, for example:
► Removing an essential function of the job;
► Lowering production standards; or
► Providing aids that are to be used both on- and
off-premises
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Non-Physical Disability #1:
Alcoholism
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Is an Alcoholic Covered by the
ADA?
Does it pass the ADA’s two-part test?
1.
Disability (Physical or mental impairment
substantially limiting a major life activity) and
2.
Qualified Individual (Can perform essential job
functions with or without reasonable
accommodation)
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Disability
• Before the 2008 amendments, courts rarely found that alcoholism was a
disability
• Now, while alcoholism is not a per se disability, it is likely that a court will
conclude that it qualifies as a “disability”
► The statute directs courts to interpret “disability” broadly
► The ADAA was passed to ensure that more people were protected
under the ADA
Take Away: Never assume that alcoholism is not a
“disability”
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Helen’s Forklift Truck
Helen, a fork-lift operator, is an alcoholic. She has
successfully operated her forklift for many years at the
company. She has also suffered from alcoholism for
many years, and, despite attempts to successfully
overcome it, it continues to consume a large part of her
life.
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1.Does Helen have a “disability?” Probably Yes
► As discussed earlier, probably yes
2.Is Helen a Qualified Individual? Yes
► Helen is able to perform the essential functions of her
job without a reasonable accommodation
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Prohibiting Alcohol in the Workplace
“If alcoholism is protected under the ADA, does that
mean that employers cannot prohibit on-premises
alcohol consumption or intoxication?”
No. The ADA specifically permits employers to
maintain a zero-tolerance stance toward on-premises
alcohol consumption and intoxication
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Disciplining an Alcoholic Employee:
Helen’s Forklift Truck
One day, after turning up to work intoxicated, Helen crashes her forklift truck
into a stack of wooden crates; she consequently breaks down into tears. Helen
begrudgingly admits to her supervisor that she is intoxicated and suffers from
alcoholism. In accordance with company policy, Helen’s supervisor terminates
her employment with immediate effect.
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• An employer may discipline an employee for
violating an organization’s alcohol policy
• Alcoholism does not automatically insulate an
employee from discipline
• Policy must be equally applicable to all employees
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How do I Know If One of my
Employees is an Alcoholic?
• No need for employee to expressly inform employer about his
or her alcoholism
• Knowledge of disability might be imputed when:
► Information obtained from a third party
► Other indicators reasonably suggest a disability
 Imputation is inappropriate if individual denies
having a disability
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Gregg is an employee at “Orange, LLP.” For the past 18 months, Gregg’s
performance has deteriorated: he is often late to the office, looks disheveled,
and has recently been arrested for a DWI.
Colleagues have recently informed Mike, Gregg’s manager, that Gregg wreaks
of stale alcohol. Mike does not confront Gregg about the complaints.
• In light of the surrounding circumstances, Mike probably has imputed
knowledge that Gregg is an alcoholic, and, therefore, might be “disabled”
• Notwithstanding, Gregg may still be disciplined in accordance with
“Oscar’s” workplace policy
• If Gregg is not terminated, “Orange” may need to explore reasonable
accommodations for him
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Alcoholism and Reasonable
Accommodations
• A disabled and qualified individual is entitled to a reasonable
accommodation under the ADA (as long there is no violation
of workplace policy)
• Once an employer has knowledge of an individual’s disability,
it should commence an Interactive Process as soon as possible
to best determine and identify reasonable accommodations:
 Consider the job involved;
 Consult with the individual; and
 Identify potential accommodations
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Magic Hat
James, an employee at Wizards, Inc., a hat manufacturer, is a functioning alcoholic, but
keeps it very well hidden. Nobody suspects him of being an alcoholic; he is punctual,
hard working, and efficient. However, one day, he decides to gain control over his
alcoholism and enrolls himself at a rehabilitation clinic.
He informs his supervisor, Stan, about his alcoholism and requests time off to attend
the clinic.
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Reasonable Accommodations for
Alcoholics
• This is a fact-specific inquiry
• Generally, courts agree that a definite period of paid/unpaid leave or
accrued vacation time is a reasonable accommodation
► Employer must keep position open during period of leave
• A modified work schedule may be a reasonable accommodation under
certain circumstances
• Under FMLA, eligible employees are entitled to a maximum of 12 weeks
of leave per 12-month period; but ADA will likely extend that period
• Patience is a virtue!
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Employer Defenses
An accommodation will be per se unreasonable if an
employer can successfully raise one of the following
defenses:
 Undue Hardship (significant difficulty or expense);
 Threat to health and safety (risk to self or others);
or
 Business Needs (policies and procedures)
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The Undue Hardship Defense
Under the undue hardship defense, an employer must
show that providing a reasonable accommodation
imposes upon it: significant difficulty or expense
 This standard is difficult for employers to meet
 Generalized conclusions will not suffice
 Employers will be expected to explore alternative
accommodations
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In the following hypos, let us assume that the
individual is a disabled and qualified individual
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Top Chef
Tom, an experienced chef at “Le Chat Noir,” an exclusive restaurant, is an
alcoholic. He informs his supervisor, Fred, about his alcoholism and requests
an indefinite amount of time off, commencing immediately, so that he can
attend a rehabilitation clinic.
The restaurant can successfully assert an undue hardship defense because of
the difficulty of replacing, even temporarily, a chef of his caliber. Moreover, it
leaves the employer unable to determine how long it must hold open the
position or plan for Tom’s absence.*
*From EEOC Enforcement Guidance
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Ricky is a plumber at “1-800 Draino.” He suffers from alcoholism, and, to
save his marriage, agrees to attend a rehabilitation program. The duration of
the program is 7 weeks long.
Employees of “1-800 Draino” are divided between small geographical zones.
There are 5 plumbers, including Ricky, allocated to one particular zone.
Typically, when one plumber is absent, the other plumbers comfortably
provide adequate cover.*
Ricky approaches his supervisor and requests the time off to attend the clinic.
Reasonable Accommodation? Yes. THERE IS NO UNDUE HARDSHIP
*Based on EEOC Enforcement Guidance
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Kathryn, an employee suffering from alcoholism, attends a rehabilitation clinic
three times per week. Because the clinic administers its program late in the
evening, Kathryn is often unable to get to bed before midnight during the
week; this causes Kathryn to be lethargic during the day.
In an effort to alleviate her tiredness, Kathryn requests her employer to permit
her to come into work at 10:00 a.m. rather than 8:30 a.m. Kathryn works
with three other employees who cannot perform their job without her.
Thus, if her employer grants the request, it would have to adjust the hours of
the other workers, find other work for them to do between 8:30 and 10:00 a.m.
or have them do nothing.
* Based on EEOC Enforcement Guidance
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The employer may deny the request because it
significantly disrupts the operation of the business, but
must still explore other accommodation options.
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Betty, a medical transcriptionist, asks her supervisor for time off to attend an
alcohol rehabilitation clinic. Because the clinic is close to her home and her
employment is a fair distance away, Betty requests that she be able to work
from home. Betty can successfully, and effectively, perform her job with a
work-at-home position.
Her employer should grant her request. There is no undue hardship
because Betty can perform the essential functions of her job at home.
• EEOC supports working at home as a reasonable accommodation:
► If employee can perform essential functions at home; and
► If there is no alternative reasonable accommodation
• Wholly depends on the nature of the job (Fast food server v. telemarketer)
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Lauren, a sales rep at “X-Cell” is an alcoholic. One day, during the work day,
her supervisor notices that she wreaks of alcohol. When he confronts her,
Lauren admits to being an alcoholic and currently intoxicated. “X-Cell’s”
company policy is to terminate intoxicated employees, and, thus, Lauren is
terminated.
Lauren argues that if she is given a second chance, she will confront her
alcoholism and attend a clinic.
Lauren’s employer can probably assert an undue hardship defense
because giving an employee a second chance is not a reasonable
accommodation.
Brookins v. Indianapolis Power & Light Co., 90 F.Supp.2d. 993 (S.D. Ind. 2000)
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There is no blanket rule for what constitutes an undue
hardship…it is a totality of the circumstances analysis.
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Take Away
The undue hardship defense imposes a tough standard
for employers to meet; employers should proceed
cautiously before concluding that an accommodation
request creates an undue hardship.
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Non-Physical Disability #2:
Substance Abuse
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May I prohibit the use of Illegal
Drugs in the Workplace?
Yes. Under the ADA, employers may prohibit the illegal use of
drugs in the workplace.
In addition, those individuals that currently use illegal drugs are
not “qualified individuals with a disability”. . .
THE ADA AFFORDS NO PROTECTION TO
CURRENT DRUG USERS
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A Zero-Tolerance Policy
Chris’s supervisor catches him red-handed smoking marijuana on
his lunch break. Chris professes his innocence: “I’m addicted!!”
Notwithstanding Chris’s alleged addiction, Chris may be
terminated immediately for violating company policy against the
illegal use of drugs.
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Marijuana: “I thought that was
legal!?”
• Under State law, marijuana use is, under certain
circumstances, legal in 23 states
• Under Federal law, it is illegal
So how does this affect employers’ obligations under
the ADA?
It doesn’t!! Federal law trumps state law
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Safe Harbor Provision
While the ADA does not protect those who currently use illegal drugs, it
affords protection to those addicted individuals that:
A.Have successfully completed a supervised drug rehabilitation program or
have otherwise been rehabilitated;
B.Are participating in a supervised rehabilitation program; or
C.Are erroneously regarded as engaging in drug use
BUT THE INDIVIDUAL MUST NOT CURRENTLY
BE USING DRUGS!
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A Baker’s Dozen
Josh, a baker at “Dough!,” used to hang out with the wrong crowd; he often
took recreational drugs, which, unfortunately, led him on a path of destruction
toward heroin. After using heroin for several years, he enrolled himself in a
drug rehabilitation program. Josh has been “clean” for 3 months.
Josh’s supervisor has recently learned of Josh’s heroin addiction; describing
Josh as a “Junkie,” the supervisor wants to terminate Josh. Is Josh protected
under the ADA?
It depends. . .
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Who is a Current Drug User?
• This is an elusive concept with no unanimity among courts
• It is determined on a case-by-case basis
TH Circuit)
► 30 days clean is not long enough (10
► 7 weeks clean not long enough (Louisiana)
TH Circuit)
► 3 weeks clean not long enough (4
► 1 Month clean might be long enough (Connecticut D. Court)
TH and 5TH
► Greater than one year clean might be long enough (4
Circuit)
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“Current drug use means that the illegal use of drugs
occurred recently enough to justify an employer’s
reasonable belief that involvement with drugs is an
ongoing problem. It is not limited to the day of use, or
recent weeks or days. . .”
EEOC Technical Assistance Manual
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Non-Physical Disability #3:
Stress-Related Illnesses
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• Recall, under the ADAA (2008), the definition of “major life activity” was
dramatically expanded:
► “Major life activity” also includes operation of a major bodily
functions, such as neurological and brain functions
• Case examples of recognized disabilities
► Depression & Anxiety (Walker, 2013)
► Acute Stress Disorder (Franklin, 2013)
► PTSD/Depression (Johnson, 2013)
► Attention Deficit Disorder (Criado, 1998)
• There is no blanket rule; it requires, once again, a case-by-case
determination
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Time to Tango
Jessie, a dance instructor at “TAP,” has recently been diagnosed
with severe depression. Clients have complained that she
constantly appears lethargic, upset, and joyless; recently, she has
found it almost impossible to get out of bed in the mornings,
failing to show up to work several times.
May Jessie’s employer terminate her or is she protected under the
ADA?
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Checklist
 Impairment substantially affecting a major life activity
 Working, interacting with clients, and neurological
functions
 Qualified Individual – Maybe. A reasonable accommodation
(such as time off to attend therapy) may enable her to,
eventually, perform the essential functions of her job.
“TAP” should engage in the interactive process with Jessie
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Food For Thought
Louis is an employee at Farfalle Inc., an importer of fine Italian pasta. He has worked there
since October, 2009, and, for the most part, has been a model employee. Recently, however, he
has found himself “down in the dumps”: after falling behind with rent payments, his landlord
has threatened to evict him; his girlfriend has left him; and, to top it all off, he hates his job.
At Farfalle’s 2014 holiday party, Louis’s friend, and esteemed colleague, Tom, introduces him
to cocaine. . .assuring Louis that it will make him feel better, Louis snorts cocaine in the
bathroom with Tom; Louis’s supervisor, Aaron, witnesses it. Louis tells Aaron that he is
suffering from chronic depression, and that the drug abuse is a byproduct of his depression.
When Aaron attempts to terminate Louis, Louis says:
“You cannot do this; my depression and drug dependency make me disabled!”
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Requesting Documentation
• Employers may ask for reasonable documentation concerning
employee’s alleged disability; disability should be nonobvious
• Inquiries should be tailored
► Specify the type of information sought (i.e., no request
for employee’s entire medical history)
► Obtain a release from employee
• If employee fails to respond to employer’s requests, there is no
entitlement to reasonable accommodation
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Wellness Programs and Litigation
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What is a Wellness Program?
• Initiative to help employees remain healthy
• Becoming increasingly attractive among employers
► 94% of employers with over 200 workers
HEALTHY EMPLOYEES = HAPPIER EMPLOYEES =
CHEAPER HEALTH COSTS = LESS EMPLOYER
EXPENSE
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Chocoholic
A Chocolate manufacturer employs 500 employees. Recently, it has become
alarmed at its rising employee health-care costs and absenteeism. Therefore, it
introduces “The Choc-O-holic Program,” a new wellness initiative that
promotes healthier lifestyles among its employees. Enrollees must undergo a
routine physical examination.
According to the program’s flyer, the program is “completely voluntary,” but
those who decline enrollment will no longer be eligible for employer HSA
contributions.
Does this program violate the ADA? Let’s analyze the issue…
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Voluntary and Involuntary Medical
Examinations
• Under the ADA, employers may:
► Always conduct voluntary medical
examinations
► Conduct involuntary medical examinations only
if:
 job related and
 consistent with business necessity
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What does “Involuntary” Mean?
EEOC Guidance: A medical examination is voluntary if
employees are neither required to participate nor
penalized for not participating.
The EEOC would likely view “The Choc-O-holic
Program” as a violative of the ADA…
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Litigation Crescendo
Employer, “Jack’s Jazz,” offers its employees a group health insurance plan.
Employees participating in the plan are eligible to participate in a new
employee wellness program.
The wellness program consists of a biometric screening (cholesterol, blood
pressure, and body fat levels). Employees that decline to participate in the
wellness program will have their medical insurance subsidy terminated.
Financial Incentive or Penalization?
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The Jury is Still Out. . .
This year, the EEOC filed lawsuits against three employers alleging that each
employer’s wellness program violated the ADA’s prohibition against
involuntary medical examinations; the programs allegedly penalized
nonparticipants:
• Flambeau, Inc. (nonparticipants faced cancellation of medical insurance);
• Orion Energy Systems (nonparticipants forced to pay entire premium for
medical insurance); and
• Honeywell, Inc. (nonparticipants assessed $500 surcharge)
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The ADA’s Safe Harbor Provision
• This provision exempts certain insurance plans from
the ADA’s prohibitions.
• It permits employers to conduct an involuntary
medical examination if it falls within a “Bona Fide
Benefits Plan”
Let’s apply this to a real set of facts. . .
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Broward offers its employees a group health insurance plan. Enrolled
employees are eligible to participate in a new employee wellness program
sponsored by Broward’s health insurer, Coventry Healthcare.
The wellness program consists of a biometric screening (finger stick) and a
health risk assessment questionnaire. Coventry Healthcare uses the information
to offer eligible employees the opportunity to participate in a disease
management program and co-pay waivers.
Participation in the wellness program is not a prerequisite for medical
coverage; however, nonparticipants incur a $20 charge on their biweekly
paychecks.
Seff v. Broward County (11th Cir. 2012)
Seff v. Broward County
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Seff v. Broward County
• 11TH Circuit Court of Appeals held that the wellness plan fell within the
“Safe Harbor Provision” because the wellness program was administered as
part of a health insurance plan
► Therefore, it was exempt from the ADA’s prohibition against
involuntary medical examinations, even if it would otherwise
violate the ADA, because:
 Insurer sponsored wellness program;
 Wellness program was only available to plan enrollees; and
 Wellness program appeared in some employee handouts
• This is the only authority discussing wellness programs and the safe harbor
provision.
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Tips to Avoid Wellness Program
Litigation
• Link your group’s wellness program to the
organization’s health benefit plan
• Reward participants rather than punish nonparticipants
• Make sure that wellness program complies with
Genetic Information Nondiscrimination Act
(“GINA”) 2008
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