Recently in Employment Law Category
Last Friday, the EEOC issued its long-awaited final regulations interpreting the Americans with Disabilities Act Amendments Act (ADAAA). The Commission released proposed regulations interpreting the ADAAA and asking for public comment about a year and a half ago. After reading the more than 600 comments that were submitted in response to the proposed regs, the EEOC made some key changes and additions. (You can read my previous post on the proposed regs here.)
Here are a handful of the changes I found interesting:
List of disabilities. Actually, I don't think this is much of a change, although others disagree. The proposed regulations included a list of impairments that "will consistently meet the definition of disability." Previously, courts had interpreted the ADA to require an individual assessment of the way a particular impairment affected a particular employee. Many commentators objected to the proposed list, arguing that the regulations should still require an individual analysis. The final regulations changed the wording -- in a way that many employer advocacy groups applaud -- but to me, it looks like the effect will still be the same. Rather than saying these impairments will "consistently meet" the definition, the final regulations say that they will, "as a factual matter, virtually always be found" to be disabilities, which means that "the necessary individualized assessment should be particularly simple and straightforward." Then, the final regulations list the exact same impairments that appeared in the proposed regulations.
"Regarded as" disability claims. An employee can be protected by the ADA because the employee has a disability (termed "actual disability" cases by the final regs); because the employee has a record of disability, or because the employer incorrectly regards the employee as having a disability. The ADAAA clarified that an employee making a "regarded as" claim isn't entitled to a reasonable accommodation (which makes sense, as the employee isn't claiming to have a disability), but also need not prove that the employer regarded him or her as having a disability as defined by the ADA -- that is, an impairment that substantially limits a major life activity. The final regulations state that an employee who doesn't need a reasonable accommodation and isn't challenging the employer's failure to provide such an accommodation can proceed under the rules for "regarded as" claims. In other words, an employee who is claiming discrimination (rather than failure to accommodate) doesn't have to prove that he or she has a disability.
Substantially limits. In keeping with the ADAAA directive that the EEOC should redefine "subtantially limits" in favor of broader coverage, the final regulations state that the term is "not meant to be a demanding standard." They also clarify that a person can be substantially limited in performing a major life activity even if that person is not prevented, or significantly restricted, from performing that activity. The final regulations indicate that the condition, manner, and duration of the person's performance of the activity should be examined. For example, can the person perform the activity only for a brief period? Must the person expend significant effort to perform the activity? Is it painful or otherwise difficult for the person to perform the activity? Do the side effects of medication or other treatment make it harder for the person to perform the activity?
Transitory and minor impairments. The ADAAA states that an employee may not make a "regarded as" disability claim based on transitory and minor impairments. The final regulations clarify that this is an affirmative defense, to be proved by the employer, which must show that the impairment is both minor and transitory, in fact. It's not enough to show that it's either minor or transitory, nor that the employer mistakenly believed it to be minor and transitory.
Working as a major life activity. The proposed regulations included a lengthy discussion of the major life activity of working. This section was unpopular with employer advocacy groups -- and was removed from the final regulations. It's still discussed in the Appendix to the regulations, but in abbreviated form. (Many examples that appeared in the proposed regs were similarly consigned to the Appendix in the final version.)
- Policies are important. Employees, read your company's policies and act accordingly. If your company prohibits personal use of the email system, just don't do it. Don't get lulled into a false sense of security by lax enforcement, because you can bet that the company will enforce that policy once it has a reason to. Employers, if you ever anticipate you might have to read employee email, adopt a policy, ask employees to sign a form acknowledging that they have received and read it, and enforce it consistently.
- Take a deep breath and count to ten. You can send an email message in a moment, but that doesn't mean you should. A little patience would have served everyone well in this case, including: (1) Petrovich, who responded to Holmes's message about her pregnancy leave "a short time later" with the comment, "I need some honesty. How pregnant were you when you interviewed with me?" (2) Holmes, who began her email reply to this message by saying that she thought the conversation should be conducted in person, "but here it goes anyway . . . " (3) Holmes again, who first emailed her attorney, from work, at 3:30 in the afternoon. You couldn't wait a couple of hours and email from home, or maybe just call her on your cell phone?
Today, the Equal Employment Opportunity Commission released final regulations interpreting the Genetic Information Nondiscrimination Act (GINA). The employment provisions of GINA (covered in Title II of the law) prohibit employers from discriminating on the basis of genetic information, prohibit employers from requiring or requesting genetic information from employees or family members, and require employers to keep genetic information confidential.
The final regs largely adopt the interim regs published more than a year ago, but there are some important changes and additions as well. The new material deals mostly with the exceptions to the law: situations in which employers may acquire genetic information without violating GINA. Here are some of the more important changes and clarifications:
Online searches. Employers may obtain genetic information on an employee without breaking the law if the information is acquired inadvertently or through information that is publicly and commercially available (for example, from an article in a newspaper). The final regulations clarify that these exceptions don't apply if the employer acts deliberately, including by searching for genetic information online. For example, the inadvertent exception protects an employer if a manager is Facebook friends with an employee who posts personal genetic information. It doesn't protect an employer that conducts an Internet search that is likely to yield genetic information (such as a Google search for the employee's name and a genetic disease or disorder). Similarly, an employer that acquires genetic information from commercially and publicly available sources hasn't violated the law, but an employer that accesses these sources with the intent to gather genetic information (for example, by visiting sites about genetic testing) isn't protected by the exception.
Safe harbor for employers who give warnings. The final regulations note that an employer may receive genetic information even if it doesn't request it, particularly if the employer legitimately requests medical information. For example, an employer that asks an employee to submit a medical certification for FMLA leave or documentation of a disability and need for reasonable accommodation under the ADA may also receive genetic information. In these situations, an employer's acquisition of genetic information will be considered inadvertent -- and won't violate the law -- if the employer tells the employee or health care provider not to provide genetic information. The regulations provide sample language employers can use to give this notice, in writing or orally.
Incentives for wellness programs. An exception applies to employers who offer health or genetic services as part of a wellness program, as long as employee participation is knowing and voluntary (among other things). The final regulations address what "voluntary" participation means when an employer offers incentives to participate in the program (for example, a payment for completing a health risk assessment). In this circumstance, the employer will be covered by the exception if employees are not required to provide genetic information nor penalized for refusing to do so. For example, if employees are offered $100 to complete a health risk assessment with questions about genetic information, employees should be told that answering the genetic questions is voluntary, and that the $100 will be paid whether or not these questions are answered.
Cleaning up personnel files. The final regulations provide that genetic information placed in employee personnel files before the effective date of GINA (November 21, 2009) does not have to be removed. However, GINA's prohibitions on employer use and disclosure of genetic information applies to all such information, whether the employer acquired it before or after the law went into effect. As a practical matter, this means that employers should review personnel files, remove any genetic information contained in them, and create separate, confidential medical files for this information. (Most employers will already have confidential medical files to comply with the ADA, so this shouldn't pose much of a burden.)