Americans with Disabilities Act (ADA)

When it comes to accommodating clients’ needs, whether your website is accessible to those with vision, hearing, or cognitive disabilities is not often a concern that readily comes to mind. However, lawsuits regarding web accessibility under the Americans with Disabilities Act (ADA) are being filed at an increasing rate. Lawsuits filed in federal court in 2018 are expected to surpass 2017 filings by 30%. This begs the question: what makes a website accessible? This question has plagued various public and private entities subject to the ADA for several years. Previously, the SC Employers’ Blog informed readers that the Department of Justice was expressing the real possibility of incorporating the World Wide Web Commission’s (W3C) Web Content Accessibility Guidelines (WCAG) 2.0, AA guidelines into the ADA regulations. However, the DOJ changed tacks and placed rulemaking related to web accessibility on the “Inactive” list.

In the interim, the W3C has bolstered its web accessibility guidelines, with the aptly named Web Content Accessibility Guidelines (WCAG) Level 2.1. The WCAG 2.0 guidelines set forth compliance guidelines to achieve four general principles: perceivable, operable, understandable, and robust. Under these four general principals were 61 individual points of criteria.  The key benchmarks (read flash points for litigation) of WCAG 2.0 include: captions for videos; requirements for color contrast and font sizes; keyboard only navigation; and alternative text coding that is compatible with screen reading software. The updated WCAG 2.1 standards expand upon the WCAG 2.0 standards by adding 17 additional success criteria to address accessibility issues not contemplated when the WCAG 2.0 standards were created in 2008. Indeed, the smart phone was in its infancy at that time, so it is no surprise that the updates incorporated in the WCAG 2.1 standards are geared, in part, towards mobile devices. Like the WCAG 2.0 standards, WCAG 2.1 still maintains A, AA, and AAA compliance levels. By complying with the WCAG 2.1 standards, one is also complying with the WCAG 2.0 standards.

One example of the new requirements set forth in the WCAG 2.1 standards prohibits the screen orientation from being restricted to one display (i.e., portrait or landscape), unless a specific display is essential (emphasis in original). The guidelines provide that examples where screen orientation may be essential are a bank check or a piano application. Another example is that users must be warned of the duration of any user inactivity that could cause data loss, unless the data is preserved for more than 20 hours when the user does not take any actions. In this instance, privacy regulations may require explicit user consent before user identification has been authenticated and before user data is preserved. A final example (but not exhaustive) requires that the size of the target for pointer input (i.e., a mouse, pen, or touch contact) be of a certain pixel size, with a few exceptions.

It is important to emphasize that the WCAG standards are industry standards and are not currently included in the statutes or accompanying regulations of the ADA. While some courts in various jurisdictions and previous settlements with DOJ investigations have required entities to conform to the WCAG 2.0 standards, other courts have found that to impose these standards would violate due process in the absence of DOJ rulemaking. What these standards do represent is a best practice for web accessibility. While time will tell if the WCAG 2.1 standards will obtain the same preferential treatment that the WCAG 2.0 standards has garnered, the W3C stresses that “the use of WCAG 2.1 [will] maximize future applicability of accessibility efforts.”

To read WCAG 2.1, click here.

Pregnant woman at workThe South Carolina Pregnancy Accommodations Act, found here, was signed into law on Friday, May 18, 2018. The Act amends the South Carolina Human Affairs Law. In passing the legislation, the General Assembly stated,

It is the intent of the General Assembly by this act to combat pregnancy discrimination, promote public health, and ensure full and equal participation for women in the labor force by requiring employers to provide reasonable accommodations to employees for medical needs arising from pregnancy, childbirth, or related medical conditions. Current workplace laws are inadequate to protect pregnant women from being forced out or fired when they need a simple, reasonable accommodation in order to stay on the job. Many pregnant women are single mothers or the primary breadwinners for their families; if they lose their jobs then the whole family will suffer. This is not an outcome that families can afford in today’s difficult economy. Continue Reading South Carolina Pregnancy Accommodations Act

The ruling in the AARP v. EEOC case may be detrimental to employers and their healthcare plans because the EEOC may either reduce the percentage of its allowable inducement (or penalty) below 30% of the employee cost for participation in any employer-sponsored “wellness” program to be considered voluntary or possibly return to its former position that any reward or penalty renders participation involuntary.

The Americans with Disabilities Act (ADA) permits an employer to conduct voluntary medical examinations including voluntary medical histories, including health risk assessments, as part of an employee health program. The Genetic Information Nondiscrimination Act (GINA) also permits the voluntary collection of genetic information. Prior to May 2016 when the EEOC issued its “wellness regulations,” the EEOC’s position was that the ADA also prohibited penalizing or rewarding any employee for completing a health risk assessment that sought medical or disability-related inquiries or participating in any health insurance program, such as a “wellness” program, on the grounds that the reward for doing so rendered participation involuntary. On May 16, 2016 when the EEOC passed its “wellness” regulations, the EEOC concluded that the ADA would not be violated if any incentive or penalty for participation in a “wellness” program was valued at 30% of the employee-cost of plan participation or less. We addressed the EEOC’s 2016 regulations in this blog post.

The AARP’s lawsuit against the EEOC alleged that employees who cannot afford to pay a 30% increase in premiums will be forced to disclose their protected information on health risk assessments or participate in the “wellness” programs when they would otherwise choose not to do so, thereby rendering the award for participation or penalty for refusal to participate involuntary and, thus, prohibited by the ADA. The AARP also alleged that the incentives allowed by the “wellness” regulations were inconsistent with its previous position on incentives.

The 36 page opinion is lengthy but, in short, the D.C. Circuit Court concluded neither the ADA nor GINA defined the term “voluntary” and that the statutes were ambiguous on this point. The federal court went on to conclude that the EEOC’s definition of voluntary in its “wellness” regulations as a 30% employee cost or less for providing medical information as part of a “wellness” program was unreasonable and not adequately explained. The EEOC’s reliance on the Health Insurance Portability and Accountability Act (HIPAA) was unjustified because: 1) HIPAA was promulgated to prevent health insurance discrimination and does not contain an explicit voluntary requirement as ADA and GINA do; and 2) HIPAA expressly permits use of any amount of incentives for participation in “wellness” programs, only applying the rule that the reward may not exceed 30% of the employee and dependents’ total cost of healthcare coverage if the “wellness” program requires satisfaction of a health-related factor to receive the award. Nor was the Court persuaded by the EEOC’s reliance on what it termed current insurance rates to justify the 30% incentive level when the regulation did not elaborate on what those rates are, how the EEOC evaluated them or what bearing they have on the voluntary aspect crucial to the analysis.

For several years prior to the EEOC’s May 15, 2016 regulations, employers, plan administrators, health insurers and brokers hoped that the EEOC would reconcile its position with the Affordable Care Act and HIPAA, which expressly permitted employers to monetarily incentivize employees to participate in wellness programs. While the EEOC’s “wellness” regulations were replete with a number of caveats and conditions, they did at least determine that providing a reward for participation was no longer proof that participation was involuntary. The D.C. District Court’s August 24, 2017 ruling has the potential to result in a setback on the EEOC’s step forward towards that goal.

The opinion can be accessed in its entirety here.

Recently, the District Court for the Southern District of Florida held in Gil v. Winn-Dixie Stores, Inc., that Winn Dixie’s website violated Title III of the Americans with Disabilities Act (“ADA”), and awarded the plaintiff attorneys fees and injunctive relief. Many believe this to be the first trial regarding website accessibility to date. While this opinion is not binding on any other district—or even other judges within the Southern District of Florida—it is intriguing for several reasons.

Title III of the ADA prohibits the owner of a place of public accommodation from discriminating “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation . . . .” In this particular case the plaintiff, an individual who is legally blind and has cerebral palsy, alleged he could not access online digital coupons, refill his prescriptions, or locate nearby stores.

Reason 1: The court found that Winn-Dixie violated the rights guaranteed to a disabled individual under Title III of the ADA by not providing services it offers through its website in an effective, accessible format for the plaintiff. This opinion comes at a time when other courts have recently provided defendant-friendly language in dismissing website accessibility lawsuits. Winn-Dixie determined that “[w]here a website is heavily integrated with physical store locations and operates as a gateway to the physical store locations,” a website is a service of a public accommodation and is covered by the ADA.

Reason 2: The court endorsed the Worldwide Web Consortium’s (W3C) Web Content Accessibility Guidelines 2.0 (WCAG 2.0) as the standard of accessibility; an endorsement not widely seen in case law given the lack of official regulations on website accessibility for public accommodations. The DOJ has expressed its preference for these standards in advance notices of proposed rulemaking dating back to 2010, but has yet to issue any regulations on website accessibility. These standards were required by the injunction included in the opinion, with deadlines for compliance to be agreed upon by the parties.

Reason 3: The court confirmed that “where a website is wholly unconnected to a physical location, . . . the website is not covered by the ADA.” This is in line with the majority of circuits, which require that a place of public accommodation must be a physical place. In jurisdictions requiring that a public accommodation be a physical place, courts employ a “nexus analysis,” which allows courts to determine that a website is subject to the ADA without having to determine that a website is in and of itself a public accommodation. The takeaway here is that in those jurisdictions that require a public accommodation be a physical place (Third, Sixth and Ninth Circuits), a website that is not connected to a business with a physical location, but whose services exist solely online is likely not going to be subject to the ADA.

Reason 4: The opinion is also significant for what it did not discuss—the auxiliary aid requirement.  In website accessibility suits in the past, defendants have argued that having a live, in-person representative, who could field phone calls from disabled individuals experiencing accessibility problems, was an appropriate auxiliary aid under the flexible regulations currently in place. A California court recently noted, “Plaintiff has failed to articulate why either Defendant’s provision of a telephone hotline for the visually impaired . . . does not fall within the range of permissible options afforded under the ADA.” In Winn-Dixie, this issue was not squarely before the court. The court noted Winn-Dixie spent $2 million in 2015 to open its current website, and spent $7 million in 2016 to remake the website for its online rewards program, “Plenti.” Moreover, Winn-Dixie’s vice president of IT, Application and Delivery testified that it was feasible for the website to be modified to be accessible to the disabled. Winn-Dixie submitted that it would cost $250,000 to integrate the WCAG 2.0 standards. A third party website accessibility testing company estimated the cost at $37,000. Either way, given the recent, large expenditures on its website, Winn-Dixie could not claim it would be an undue burden to bring its website into compliance.

Reason 5: The court did not require its website to be compatible will all varieties of screen reader software on the market, but only the main screen reader software programs, such as NVDA or JAWS. It is the responsibility of those less widely used screen reader programs to make themselves compatible. The court came to the same opinion with internet browsers, and noted that the main stream browsers such as Google Chrome, Internet Explorer, and Safari, already comply with WCAG 2.0 standards.

Winn-Dixie is likely the first of what could be many trial orders on Web Accessibility in the coming year. While most of these cases settle after the motion to dismiss or summary judgment stage, the ever increasing number of filings and the lack of DOJ guidelines on web accessibility ensure that these issues will continue to be relevant.

Today’s post is authored by Drew Rawl, a commercial litigator in our Greenville, SC office. Read Drew’s past blogs on this subject.

Recently, the SC Employers’ Blog alerted you to a rising trend where serial claimants send demand letters to various private companies alleging the company’s website discriminates against individuals who are blind or visually impaired. That blog discussed a proposed Department of Justice (“DOJ”) rule, which would clearly define accessibility guidelines for public accommodations under Title III, and it was thought that the DOJ would implement those rules in 2018.

All recent signs are now suggesting otherwise. A recent Executive Order seems to put the DOJ rulemaking on website accessibility on hold for the foreseeable future. On January 20, 2017, all administrative agencies were temporarily “frozen” via a White House Memorandum, in order for the new agency heads appointed by President Trump to review all policies and proposed rules, and determine what agency initiatives would be continued or disbanded. On January 30, the President issued Executive Order 13771 titled “Reducing Regulation and Controlling Regulatory Costs.” This Order was issued to manage “costs associated with the governmental imposition of private expenditures required to comply with Federal regulations.”

Executive Order 13771 sets forth three guidelines for federal agencies moving forward:

  1. For every new regulation issued, at least two prior regulations must be identified for elimination. In addition, the cost of planned regulations should be prudently managed and controlled through a budgeting process, according to the order.
  2. Second, the order requires that the “total incremental cost of all new regulations, including repealed regulations, should be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget (“Director”).”
  3. Finally, any new incremental cost associated with a new regulation shall be offset by the elimination of existing costs associated with at least two prior regulations. This imposes a cap on the cost for new regulations in 2017 at $0.

For 2018 and beyond, each agency head shall identify the incremental cost for each regulation, the offsetting regulations, and provide the agency’s best approximation of the total costs or savings associated with each new regulation or repealed regulation. Under this order, the Director is required to identify a total amount of incremental costs that will be allowed for each agency when issuing new regulations and repealing regulations for the next fiscal year during the Presidential budget process.

This then begs the question, “What does this mean for DOJ’s proposed rulemaking regarding website compliance under the ADA?” The DOJ clearly feels that websites are subject to the ADA, but given the constraints imposed on future rulemaking by Executive Order 13771, the DOJ will have to carefully select what regulations it chooses to roll out in the future. This means the general accessibility mandate required by the ADA is likely to be the law for the foreseeable future. As explained in our previous blog post, the general accessibility mandate, or the “auxiliary aid requirement,” requires that a public accommodation take necessary steps to ensure no individual with a disability is excluded, denied services, segregated or otherwise treated differently, unless the public accommodation can demonstrate that taking those steps would fundamentally change the nature of the goods or be unduly burdensome. What type of auxiliary aid will suffice is still to be determined through case law or any forthcoming rulemaking, whenever that may be.

On March 20, the Central District of California recently dismissed a case due in part to the DOJ’s failure to specify what an accessible website is under the ADA. The Court in Robles v. Dominos Pizza, LLC, No. CV 16-06599 SJO (SPx) (C.D. Cal. Mar. 20, 2017) granted Dominos motion to dismiss on the grounds that Plaintiff’s attempted imposition of the WCAG 2.0 Standards “flies in the face of due process.” The court referenced the DOJ’s prolonged rulemaking process for the ADA’s website accessibility standards and noted the questions the DOJ raised more than seven years ago are still unanswered. To require Dominos to comply with the WCAG 2.0 standards “without specifying a particular level of success criteria and without the DOJ offering meaningful guidance on this topic” violates Dominos’ due process rights. The court dismissed the plaintiff’s causes of action without prejudice, pursuant to the primary jurisdiction doctrine. Generally speaking, a court invoking the primary jurisdiction doctrine is deferring to the expertise and uniformity of the relevant agency, rather than rendering a decision on the matter that would have the effect of creating law.

The Robles court briefly discussed auxiliary aids, but provided no guidance on whether what Dominos was using sufficed. Dominos included on their website (after the suit was filed) “accessibility banners that direct[s] users who access the website using a screen reader with the statement: ‘If you are using a screen reader and are having problems using this website, please call 800-254-4031 for assistance.’” This number was staffed by a live representative who provided blind or visually impaired individuals with assistance. The court did not rule on whether this was an appropriate auxiliary aid, but did note, “Plaintiff has failed to articulate why either Defendant’s provision of a telephone hotline for the visually impaired or it’s compliance with a technical standard other than the WCAG 2.0 does not fall within the range of permissible options afforded under the ADA.” Other agencies and companies have employed live phone representatives in a similar manner. While this seems to be ensuring “effective communication” between the public accommodation and the disabled individual, we have yet to find a case where a court has explicitly approved this under the law.

As the amount of website accessibility cases increase, we can only expect increased pressure on the DOJ to issue clear and defined rules on website accessibility.

Today’s blog post is authored by Drew Rawl, a commercial litigator based in our Greenville office.

Websites and mobile apps (collectively “website(s)”) are a common tool used by businesses of all varieties and sizes to reach current and potential customers. They have revolutionized the manner in which businesses advertise and service customers. While websites may be a convenient way to reach a wider audience, they may, however, be a potential source of liability with regards to Title III of the Americans with Disabilities Act (ADA).

In addition to prohibiting disability discrimination in the terms and conditions of a person’s employment, the ADA also prohibits discrimination on the basis of disability in the full and equal enjoyment of places of public accommodation (privately operated entities, such as banks, movie theaters, and retailers whose operations affect commerce and that fall into one of twelve categories listed in the ADA), and requires places of public accommodation to comply with ADA standards.

Plaintiffs’ lawyers are threatening suit against companies’ whose websites and mobile apps are not accessible by the blind and visually impaired and thus denies those that are blind or visually impaired the same opportunity to the “full and equal enjoyment” of goods and services of the place of public accommodation. A complaint would seek to require the company to embed their website with invisible text, which could be read by screen reader software.

Exactly how websites fit into ADA governance is a transient area of the law. Courts are currently split on the issue, but the law is trending toward requiring compliance. Indeed, the Department of Justice (the agency charged with promulgating rules and regulations under the ADA) has opined the ADA covers websites, and that it intends to engage in future rulemaking on this topic.[1]  A minority of jurisdictions (First and Seventh Circuits) have found that a place of public accommodation need not be a physical place.[2] However, a majority of jurisdictions (Third, Sixth, Ninth, and likely the Eleventh Circuits) have found that a place of public accommodation must be physical place.[3] In those jurisdictions where a public accommodation does not have to be a physical location a website is found to be public accommodation, and consequently absolutely subject to Title III of the ADA.[4]

Websites still may be subject to the ADA in jurisdictions requiring a public accommodation be a physical place. A website could still be in violation if there is a “nexus” or connection between the challenged services and goods offered through a website and the physical place of the public accommodation.[5]

While websites must likely comply with the ADA, the standard for compliance is flexible and gives much discretion to the public accommodation. The ADA contains what is known as the “Auxiliary Aid Requirement.” 28 C.F.R. § 36.303 requires that a public accommodation take necessary steps to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently because of the absence of auxiliary or supplemental aid that would remove barriers to the disabled individual, unless the public accommodation can demonstrate that taking those steps would fundamentally change the nature of the goods or be unduly burdensome. The DOJ has explained that the ADA obligates public accommodations to communicate effectively with customers who have disabilities concerning hearing, vision, or speech. The type of auxiliary aid or service necessary to ensure effective communication is left to the public accommodation provided that the public accommodation is actually, effectively communicating with the individual and the individual’s disability does not prevent that individual from enjoying the goods and services offered by the public accommodation.

While the “auxiliary aid” standard may be the law now, it looks as though more definitive standards are on the horizon. In an Advanced Notice of Proposed Rulemakings (ANPRM), the DOJ has favored Web Content Accessibility Guidelines (“WCAG”) 2.0 Level AA standards. WCAG Standards were created by the Web Accessibility Initiative of the World Wide Web Consortium (“W3C”). The WCAG 2.0 contains three different thresholds of accessibility; A, AA, and AAA. The DOJ’s most recent ANPRM was withdrawn in April 2016, but the DOJ contemporaneously issued a Supplemental Advanced Notice of Proposed Rulemaking that seeks additional information on what standards it should put in place regarding website accessibility. While it is unclear what standards the DOJ will ultimately adopt, industry experts predict it will adopt the current WCAG 2.0 AA standards. Moreover, recent settlement agreements involving claims the DOJ has pursued against public accommodations have required the public accommodation to put in place the WCAG 2.0 standards, not only with their website, but with mobile apps and sites meant for mobile browsing.

With this in mind, best practices would recommend a proactive approach towards adopting the WCAG 2.0 AA standards. It appears a website embedded with alternative text to allow a blind individual to navigate the website would satisfy most claimants. At the very least a public accommodation must show it can effectively communicate with a disabled individual.

Today’s blog post is authored by Drew Rawl, a commercial litigator based in our Greenville office.

 

[1] 28 CFR part 35, app. A, 75 FR 56163, 56236 (Sept. 10, 2010).

[2] See Carparts Distribution Center, Inc. v. Automotive Wholesaler’sAssoc. of New England, Inc., 37 F.3d 12, 18-20 (1st Cir.1994) (holding that a trade association which administers a health insurance program, without any connection to a physical facility, can be a “place of public accommodation”); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) (noting, in dicta, that a “place of public accommodation” encompasses facilities open to the public in both physical and electronic space, including websites).

[3] See Parker v. Metropolitan Life Insurance Co., 121 F.3d 1006, 1014 (6th Cir.1997) (holding that “the clear connotation of the words in § 1218(7) is that a public accommodation is a physical place,” because “[e]very term listed in § 12181(7) … is a physical place open to public access”); Ford v. Schering-Plough Corp., 145 F.3d 601, 612-13 (3rd Cir.1998) (holding that “the plain meaning of Title III is that a public accommodation is a place,” and that § 12181(7) does not “refer to non-physical access”); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114-16 (9th Cir.2000) (following Parker and Ford ); Stevens v. Premier Cruises, Inc.,[3] 215 F.3d 1237, 1240–41 (11th Cir. 2000) (Noting that § 12181(7) is comprehensive and Congressional intent was not for the ADA to have a broad reach, so while a cruise ship by itself is not a place of public accommodation, the places on the cruise ship which are specifically enumerated by the statute are public accommodations under the statute).

[4] Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F. Supp.2d 196 (D. Mass. 2012).

[5] Nat’l Fed’n of the Blind v. Scribd Inc., 97 F. Supp.3d 565 (D. Vt. 2015); National Fed’n of the Blind v. Target Corp., 452 F. Supp.2d. 946 (N.D. Cal. 2006).

The EEOC issued its Final Rules on how the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) apply to wellness programs employers offer that request health information from employees and their spouses.[1] The main issue at stake was whether such wellness programs, that require disability-related inquiries and/or genetic information as part of a wellness program, are still voluntary and not mandatory if they offer employees incentives for participating.  (If the information is mandated, then it will be in violation of the ADA and GINA.)

Although the EEOC’s Final Rules are very similar to the proposed rules issued in 2015, the most notable changes are the following:

  • All wellness programs must comply with GINA and the ADA whether part of a group health plan or not (addressing the interpretation that the Proposed Rules applied only to group health plans).
  • The insurance safe harbor is not available to wellness programs. (The ADA contains a safe harbor provision for bonafide benefit plans based on underwriting, classifying or administering risks as long as the safe harbor provision is not used as a subterfuge to evade the purposes of the ADA. The purpose of the safe harbor provision is to permit development and administration of benefit plans using accepted principles of risk assessment.)
  • Notice requirements apply to wellness programs separated from a group health care plan if the program solicits disability-related information or requires medical exams. The Notices must inform employees that the program is voluntary, and advise them what medical information will be obtained, how it will be used, who will receive it, and the restrictions on disclosure. (effective for plan years beginning on or after January 1, 2017). The EEOC published a sample Notice form – https://www.eeoc.gov/laws/regulations/ada-wellness-notice.cfm.

The EEOC specifically stated that the courts wrongfully applied the ADA’s safe harbor provision to two wellness programs in two cases, Seff v. Broward Count[2]y and EEOC v. Flambeau, Inc[3]., because neither employer used the wellness program data to determine insurability or calculate insurance rates, nor was there any evidence that the surcharge employed in both cases was based on actual risks that non-participating employees imposed. The Florida District Court in Seff held that the wellness program requiring completion of health risk assessments and biometric testing offered by the employer at issue did not violate the ADA and, in fact, fell under the ADA’s safe harbor provision.  The Wisconsin District Court granted summary judgment against the EEOC in Flambeau, holding that the employers’ requirement that employees complete health risk assessments and biometric testing if they desired to participate in the group healthcare plan fell within the ADA’s safe harbor and did not violate the ADA.

The EEOC did not change its position that wellness programs requesting disability-related information or medical exams must be voluntary. Programs are voluntary if the employer does not require employees to participate; does not deny or limit coverage under any of its plans to non-participating employees; does not take adverse action, interfere with or retaliate against the non-participating employee; and provides notice to employees about what information is collected, how it will be used and with whom it will be shared, how it will be kept confidential, explains the restrictions on uses and disclosures, and explains the methods employed to prevent improper disclosure.  A participant cannot be required to share medical information in order to participate in the wellness program.

The programs also must be reasonably designed to promote health and must not be a subterfuge for disability discrimination, meet certain notice requirements to employees, and limit the amount of incentives that may be offered for participation. In order to be reasonably designed, the collected information must address conditions identified through follow-ups with the participating employees, whether by providing information or advice, or creating programs to address the conditions identified and improve health.

Incentives up to 30% of the total cost of self-only coverage under the health care plan may be offered for participation in a wellness program. The Final Rules include guidance on how to calculate the cost of health care coverage for purposes of complying with the limitations on incentives effective for plan years beginning on or after January 1, 2017. If the employee does not participate in the group health plan, the employer may use the cost of single coverage if there is only one plan or the cost of the least expensive plan if there is more than one plan.  If an employer has no health care plan, then the employer must calculate wellness program’s incentives to be 30% or less of the cost of self-only coverage for a 40 year old non-smoker under the second lowest cost Silver plan available through the Marketplace in the same location as the employer’s principal place of business.

GINA will be violated if an employer imposes a penalty on the participating employee or spouse for failing to achieve a certain health outcome. The maximum incentive for spousal participation is $1800, effective January 1, 2017.

Other useful information on these new rules can be found here:

Small Business Fact Sheets:
https://www.eeoc.gov/laws/regulations/facts-ada-wellness-final-rule.cfm https://www.eeoc.gov/laws/regulations/facts-gina-wellness-final-rule.cfm

EEOC Q&A: https://www.eeoc.gov/laws/regulations/qanda-ada-wellness-final-rule.cfm

 

 

[1] Unless otherwise indicated, the rules apply effective immediately.

[2] Seff v. Broward County, 2011 U.S. Dist. LEXIS 44807 (S.D.Fla., April 11, 2011).

[3] E.E.O.C. v. Flambeau, Inc., 2015 WL 9593632, *1 (W.D. WI., December 31, 2015).  See our blog titled “A Win For Wellness” posted on February 9, 2016.

The Equal Employment Opportunity Commission (EEOC) has been busy this spring, issuing guidance left and right! On May 9th, it issued guidance to employers about leave as an ADA accommodation.  On May 16th, it issued its Final Rule on wellness programs.  Then, on June 2nd, it issued proposed guidance on national origin discrimination.  We will highlight each of these in posts throughout the remainder of June.

May 9, 2016 – Employer-Provided Leave and the Americans with Disabilities Act

The EEOC issued guidance on leave as an accommodation under the Americans with Disabilities Act (ADA) because it receives charges of discrimination indicating that employers do not understand that leave can be an accommodation for individuals with disabilities. The EEOC guidance requires employers to provide individuals with disabilities with access to leave on the same basis of all similarly-situated employees.  It requires that employers consider granting unpaid leave as an accommodation even when leave would not otherwise be available or granted.  Also, an employer may not penalize an employee for using leave as a reasonable accommodation.

Specifically, the EEOC suggested employers should: 1) offer leave as an accommodation even when an employer would not offer leave to other employees; 2) modify leave policies to offer additional leave as an accommodation; 3) offer additional leave as an accommodation beyond maximum leave policies; 4) offer light duty or temporary reassignment of position to accommodate an employee who can return to work but with restrictions rather than requiring employees be “100% healed” to return. In the case of reassignment, the employee must be placed in a vacant position for which he or she is qualified and not be required to compete with other applicants for the position.

The EEOC does acknowledge that it is up to the employee with a disability to first request the accommodation for leave or additional leave. If the employer can grant the request under some already-existing leave program, then the employer should do so.  However, if no other leave policy applies, then the employer should engage in an “interactive process” with the employee to determine what accommodation can be made.  The employer is permitted to ask about the specific reason for the leave, whether the leave will be taken in a block of time or sporadically, and when the need for leave will end.  An employer may obtain additional information from the employee’s medical provider, with the employee’s permission, although the request should be limited to confirming the need for leave, whether accommodations other than leave could resolve the issue, and how long the leave will last.

Although an employer can inquire about how long leave will last, the EEOC guidance suggests that an employer should consider granting leave even if the length of time needed is initially unknown. An employer who has granted leave with a fixed return date cannot ask for periodic updates, and an employer must not use form letters to tell an employee his or her leave is ending and he or she must return to work or be terminated.

Employers will be glad to know that the EEOC did say they can require employees to provide information from their provider to assist in the process and that employees must be responsive to questions the employer asks and obtain medical documentation quickly from his or her provider.

The EEOC acknowledged that an employer could deny leave but only upon showing of an undue hardship on its business operations or finances. Undue hardship involves consideration of the following factors: 1) amount or frequency of leave requested; 2) whether there is any flexibility with respect to what days the leave is taken; 3) whether the days of leave are predictable or unpredictable; 4) the impact of the employee’s absence on coworkers; 5) whether the employee’s absence has an effect on specific job duties being performed in an appropriate and timely manner; and 6) the impact on the employer’s operations and its ability to serve customers and clients appropriately and in a timely manner, taking into account the size of the employer.

I am so often advising employers who struggle to determine how much additional leave is required in order to comply with the ADA, and they are understandably frustrated that there is no definite guidance on how much is enough. This is one of the biggest “gray area” issues with  accommodations that employers face and, unfortunately, the guidance doesn’t specifically address that issue with any certainty.

However, the guidance does offer help to employers because the EEOC states that undue hardship is satisfied (and thus no accommodation is needed) if an employee is unable to say whether or when the employee will be able to return to work. This is a common problem for employers when they request a return date after FMLA leave has been exhausted and an ADA accommodation period has been granted.  The EEOC also makes it clear that employees must cooperate with employers who seek to verify the disabling condition and obtain information about the accommodation from the employee’s medical provider.

Click here to view the guidance.

Rarely does my interest in sports intersect with my work as an employment lawyer. That changed a few weeks ago with the news that former University of Southern California (“USC”) head football coach Steve Sarkisian has sued the school for wrongful termination.[1] Sarkisian’s claim against USC raises an interesting issue regarding the Americans with Disabilities Act (“ADA”): how do employers handle employees with substance abuse problems?

USC fired Sarkisian on October 12, 2015, one day after being removed from the sidelines for allegedly being intoxicated during a game. Sarkisian was immediately placed upon a leave of absence, and allegedly found out about his termination on his way to a treatment facility. Earlier in the year, Sarkisian appeared intoxicated at a USC athletic booster event and issued a public apology.

Sarkisian’s lawsuit alleges that USC failed to accommodate his disability (alcoholism) and terminated his job because of that disability. Although the suit alleges violation of California’s state law on disability discrimination law, that law is very similar to the ADA. The ADA does recognize alcoholism as a disability – so does Coach Sarkisian’s suit have merit? Let’s examine.

Sarkisian’s first argument is that USC and its AD Pat Haden failed to accommodate his disability by refusing to allow him time off to get help and return to coaching. The ADA requires employers to grant “reasonable accommodations” to employees with an ADA-defined disability, absent a showing of undue hardship. Sarkisian is going to argue that his request was reasonable because an assistant head coach could have easily stepped in for him.

USC is likely to argue that granting leave to their head football coach to seek treatment for alcoholism is not reasonable because Sarkisian cannot perform the essential functions of his job (although they are being performed by the interim coach). Not only would he not be able to coach but he could not recruit, attend booster events, etc. The high-profile nature of the job and extreme demands of the job should help USC’s argument.

Sarkisian’s second argument is that he was fired because of his disability. USC will argue that his on-the-job conduct – even if caused by alcoholism – was the reason for his termination. You cannot legally fire an employee because he or she is an alcoholic. But, if alcohol abuse interferes with your work, then the employer has grounds for termination. For instance, if USC can demonstrate that Sarkisian was intoxicated on the sidelines or that his alcohol abuse otherwise interfered with his work, then the firing would be justified.

What lesson can be learned from the news of this lawsuit? If you have an employee who has shown up to work intoxicated or that you have heard may be an alcoholic, be aware that ADA issues are implicated. Remember, this means “reasonable accommodations” must be considered and/or granted, and careful consideration must be given to the circumstances before any adverse employment action is taken against that employee.

[1] You can read the complaint here: http://documents.latimes.com/sarkisians-complaint-damages/.

1208423_12758677The EEOC and, subsequently, the Court, supplanted its judgment for an employer’s as to whether physical presence at the office was an essential function of a reseller’s job, determining that a reseller should be permitted to telecommute several days a week despite the fact that the job description required physical presence at the office.  EEOC v. Ford Motor Co., 2014 WL1584674 (6th Cir. 2014).  The Court determined the employer violated the Americans with Disabilities Act (ADA) in refusing to accommodate its employee and permit her to work from home several days a week even though her job position required physical presence.  This decision has the effect of preferring the EEOC’s and the Court’s judgment as to the essential functions of a job over that of the employer who actually created the job with its business needs in mind.

Shouldn’t an employer be able to determine what the essential functions of a position should be as long as the essential functions are clearly defined in a job description created with the position and the business’ needs in mind? The essential functions of a job are just that and should not be tailored to the person hired for the position as a general rule.  This decision thwarts the long-recognized legal premise that employers are the best able to determine the duties it considers essential to the purpose of its business.  In my opinion, this Opinion goes too far!