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.

Perry MacLennan, Chris Gantt-Sorenson and Denny Major
Perry MacLennan, Chris Gantt-Sorenson and Denny Major

Haynsworth Sinkler Boyd recently hosted our annual Employment Law Seminars across South Carolina. These complimentary seminars educated Human Resource professionals on recent employment law updates and changes.

Here is a brief summary of the presentations from our seminars.

LGBTQIA: What Human Resource Professionals Need to Know by Chris Gantt-Sorenson

  • The 4th Circuit Court of Appeals has already stated in dicta that it would recognize a claim alleging gender discrimination or harassment under Title VII for any employee who has been discriminated against on the basis of their gender identity, gender expression, sexual orientation or sexual preference.
  • OSHA states, “All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”
  • OSHA reports 22% of 700,000 transgender employees surveyed indicated they were denied access to gender appropriate restrooms.
  • OSHA’s Sanitation Standard 1910.141(c)(1)(ii) requires employers to provide toilet facilities that are close to their workspace for each gender. OSHA also issued guidance recommending that employers offer single occupancy, gender neutral facilities rather than gender specific. However, if an employer could not do so, OSHA advised employers should provide lockable stalls in each restroom.

Wage and Hour Update by Denny Major

  • The Department of Labor has issued a request for information to solicit input on the salary level test used to help determine if an employee meets the executive, administrative, or professional exemption for the FLSA’s overtime requirement. The DOL has indicated that it intends to use the comments to develop a new proposed regulation regarding this exemption. For now, the 2004 salary level test ($455/week) remains in effect.
  • In recent opinions, the Fourth Circuit Court of Appeals, which is the federal court of appeals that covers South Carolina, has taken a fairly broad view of who is an employee versus an independent contractor and who constitutes joint employers under the FLSA. In a recent case, the Fourth Circuit, after examining several fact specific factors, determined that an exotic dancer was an employee of an exotic dance club rather than an independent contractor. In another recent case, it held that a general contractor was a joint employer over the employees of the contractor’s drywall subcontractor. While these are very fact specific inquiries, it suggests a trend in the way the Fourth Circuit is treating these cases.

Politics in the Workplace by Perry MacLennan

  • The Problem: According to a recent survey from BetterWorks, 50% of respondents have witnessed a political conversation turn into an argument at work (63% of millennials say the same). Thirty percent of respondents say they are less productive since the election due to the political environment. Employees are increasingly taking to social media to express their political beliefs and opinions, sometimes crossing the line into harassment and discrimination, or embarrassing the company and creating a public relations nightmare.
  • The Challenge: Foster a cooperative, productive, inclusive work environment that does not discourage workers from having their own opinions and does not create a workplace that feels more like a dictatorship than a democracy. Develop policies and procedures that strike a balance between being strong enough to justify discipline in certain situations, while not being overly broad, which are tough to enforce and could be illegal.
  • The Solution: Review your current policies and procedures (Social Media Policy, Code of Conduct Policy, etc.) to determine if your organization is compliant with the National Labor Relations Act and other laws governing the regulation of employee speech in the workplace. Make sure the policies emphasize mutual respect, civility, and productivity at work. Finally, include a reminder that anti-discrimination and other company policies apply to an employee’s outside activities, including social media posts.

Immigration Law Update by Garrett Steck and Suyash Raiborde

  • Immigration is seeing and will likely continue to see major changes under the current Administration.
  • Internal immigration compliance enforcement has increased in recent months.
  • The government may eliminate several visa programs, and significantly alter existing visa programs.

Recent Trends with the ADA

  • Both the EEOC and the US District Court of South Carolina have taken the position that an employee’s request for a service animal may be a reasonable accommodation under the ADA even though Title III of the ADA which governs employers does not specifically address service animals.
  • The failure to engage in the interactive process with the employee once a request for a service animal as a reasonable accommodation is made will most likely result in a violation of the ADA and subject the employer to liability for failing to engage in the interactive process.
  • The EEOC’s recent position on service animals as well as recent court decisions do not foreclose the possibility that the EEOC or the courts would find that an emotional support animal may be a reasonable accommodation under the ADA. If a request for an emotional support animal as a reasonable accommodation is made, employers should engage in the interactive process to determine whether the animal is reasonable under the circumstances.
  • Both the EEOC and the courts take the position that leave may be a form of reasonable accommodation under the ADA. Employer’s may have to modify existing leave policies to accommodate an employee’s request for accommodation.

DOR and the Unemployment Insurance Tax Rate by Demetrius Pyburn

  • Respond timely, adequately and effectively to SCDEW’s request for information regarding the reason the employee no longer works for the company.
  • Implement clear employee policies and keep records of any trainings, orientation and counseling.
  • Understand the Unemployment eligibility and appeals process to prevent improper payment and higher tax rates.

Stay on top of all employment law issues and subscribe to our SC Employers’ Blog.

And don’t miss next year’s seminar. Sign up for HSB emails and be the first to know about upcoming events.

Haynsworth Sinkler Boyd’s Employment Group is pleased to announce the schedule for our upcoming Employment Law Seminars.
HR professionals are invited to join us for a program that will cover current issues in Employment law in a fast-paced, plain-English way. These complimentary seminars qualify for 3.0 hours of continuing education credit with CLE, SHRM and HRCI credit available.
Our attorneys will present on the following topics:
  • LGBTQIA: What Human Resource Professionals Need to Know
  • Immigration Law Update
  • Politics in the Workplace
  • Wage & Hour update
  • Recent Trends with the ADA
  • DOR & the Unemployment Insurance Tax Rate
Join us for one of our seminars in a location near you:
November 30 – Hood Center, Rock Hill
8:30 am – 12:00 pm
Click here for details and to register.
December 5 – Marina Inn Grande Dunes Myrtle Beach
8:30 am – 12:00 pm
Click here for details and to register.
December 6 – SiMT Florence 
8:30 am – 12:00 pm
Click here for details and to register.
Please contact Keely Yates for additional information.
Haynsworth Sinkler Boyd’s Employment Group is pleased to announce the schedule for our upcoming Employment Law Seminars.
HR professionals are invited to join us for a program that will cover current issues in Employment law in a fast-paced, plain-English way. These complimentary seminars qualify for 3.0 hours of continuing education credit with CLE, SHRM and HRCI credit available.
Our attorneys will present on the following topics:
  • LGBTQ: What Human Resource Professionals Need to Know
  • Immigration Law Update
  • Politics in the Workplace
  • Wage & Hour update
  • Recent Trends with the ADA
  • DOR & the Unemployment Insurance Tax Rate
Join us for one of our seminars in a location near you:
October 24 – North Charleston DoubleTree Hotel
1:00 – 5:00 pm
Click here for details and to register.
October 25 – HSB Columbia Conference Center
8:30 am – 12:00 pm
Click here for details and to register.
November 30 – Hood Center, Rock Hill
8:30 am – 12:00 pm
Click here for details and to register.
December 5 – Marina Inn Grande Dunes Myrtle Beach
8:30 am – 12:00 pm
Click here for details and to register.
December 6 – SiMT Florence 
8:30 am – 12:00 pm
Click here for details and to register.
Please contact Keely Yates for additional information.

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.

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).

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!

Inappropriate interview questions create a risk of discrimination claims under various state and federal anti-discrimination laws.  (For example, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act, as amended by the Americans with Disabilities Amendments Act.)   Therefore, when interviewing an applicant for a job, you must avoid questions relating to race, sex, national origin, age, pregnancy, religion and disability, which are irrelevant as to whether he or she is qualified for the job.

Even asking questions that do not appear discriminatory on their face may be considered unlawful when they screen out a disproportionately high percentage of candidates on the basis of protected status and are not justified by any business purpose.  For example, asking about whether an applicant owns their own home could be considered racial discrimination.

Continue Reading Can I Ask About This? Interview Do’s and Don’ts

The EEOC has issued its long-awaited guidance on wellness programs and what is considered involuntary under the ADA.  The EEOC is the administrative agency charged with enforcing the ADA.  It issued a Notice of Proposed Rule Making (NPRM) of Proposed Rules on April 16 that provides guidance on the extent to which the ADA permits employers to offer incentives to employees who participate in wellness programs part of a group health plan. The Human Resource and Group Health Insurance Industries have been troubled by the EEOC’s approach to an employers’ use of incentives or penalties and what it considered “voluntary” participation in the context of wellness programs. In the Proposed Rule, the EEOC states: “[t]he Commission concludes that allowing certain incentives related to wellness programs, while limiting them to prevent economic coercion that could render provision of medical information involuntary, is the best way to effectuate the purposes of the wellness program provisions of  [the ACA and ADA].”

The Proposed Rule provides definitions of what the EEOC considers voluntary under the ADA, still requiring that employees not be required to participate.  The EEOC permits incentives or penalties that do not exceed thirty (30%) percent of the employee-only cost of the program.  The Proposed Rule also requires specific notice requirements to employees and special rules regarding confidentiality.

nosmokingA significant development is that tobacco incentives or penalties must be limited to 30% of employee-only health care coverage costs, rather than the 50% allowed by HIPAA and the ACA, if the tobacco-related wellness program involves disability-related inquiries or medical examinations.  The EEOC specifically stated that asking an employee if they still use tobacco is not a disability-related inquiry while a biometric exam to test for tobacco use is.  Many Employers and Plan Administrators already have programs that issue a 50% surcharge for tobacco users.  How can the EEOC’s provision be reconciled with what HIPAA and the ACA already allow? How will the EEOC’s new limit on incentives for participation in wellness programs that ask disability-related inquiries or require medical examinations affect the ACA’s tobacco incentive?