EEOC Hot Topics
In October 2016, the American Association of Retired Persons (AARP) filed suit against the U.S. Equal Employment Opportunity Commission (EEOC) claiming their new wellness program rules violate anti-discrimination laws protecting the privacy of workers’ medical and disability information. The new rules also allow employers to attach significant financial repercussions for nonparticipation, rendering the programs no longer voluntary. The new rules are effective in 2017. What are your thoughts about these rules? To read the full article click here: http://www.jdsupra.com/legalnews/aarp-sues-eeoc-over-wellness-program-45862/
AARP Sues EEOC over Wellness Program Rules
This article recaps the recent lawsuit filed by the AARP against the U.S. Equal Employment Opportunity Commission (EEOC) and the EEOC’s new rules regulating employer wellness programs.
The American Association of Retired Persons (AARP), the nation’s largest consumer interest group for Americans over 50, is suing the Equal Employment Opportunity Commission (EEOC) over its new wellness program rules, which the AARP alleges violates rules protecting the confidentiality of medical information. The new rules were issued in May but do not take effect until 2017. The AARP is seeking a preliminary injunction to block the new rules. The case, filed October 24, in Federal District Court in Washington is AARP v. EEOC.
The AARP contends that wellness programs, which many employers offer to encourage healthier lifestyles and prevent disease, violate anti-discrimination laws that protect workers’ confidential medical information. According to the AARP, the programs invade workers’ privacy as they often involve medical exams and questioning, and leave them vulnerable to employment discrimination based on disability or genetic information. The AARP specifically opposes wellness programs because older workers are more likely to have the types of less visible conditions (i.e. high blood pressure and heart disease) that can become exposed through participation in wellness programs. The AARP has typically been supportive of the EEOC’s efforts to provide guidance on wellness Programs—but now, the AARP is in the unusual position of finding itself at odds with the EEOC.
The AARP’s suit also questions whether wellness programs are truly “voluntary” because there are significant financial repercussions for employees who choose not to participate. According to the final rules, employers can set an incentive as high as 30 percent of the annual cost of a worker’s health insurance coverage starting in 2017. The AARP is arguing that because the incentives are so high, the choice to participate in a wellness program is no longer really voluntary, and that employees will feel forced to participate in wellness programs in order to avoid significant penalties.
Key takeaways from the EEOC’s May Final Rules on Wellness Programs:
- The Final Rules describe how Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA) apply to wellness programs offered by employers that request health information from employees and their spouses.
- ADA and GINA generally prohibit employers from obtaining and using information about employees’ own health conditions or health conditions of their family Members.
- However, both ADA and GINA allow employers to obtain this information if the employer is providing health or genetic services as part of a voluntary wellness Program.
- Financial Incentives:
- Final ADA Rule: wellness programs that are part of a group health plan may offer incentives of up to 30 percent of the total cost of self-only coverage.
- Final GINA Rule: maximum inducement for employee’s spouse to provide information about current or past health status is 30 percent of the total cost of Self-only coverage.
- Final Rule includes standards on what makes a wellness program “voluntary”:
- Employer cannot require employee participation;
- Employer cannot deny coverage under any of its group health plans for non-participation;
- Employer cannot take any adverse employment action or retaliation against employees who do not participate.
- Notice Requirement: For employee’s participation in a wellness program that is part of a group health plan to be voluntary, employers must provide a notice clearly explaining – what medical information will be obtained, how it will be used, who will receive the information, restrictions on disclosure, and their methods used to prevent improper disclosure.
Kelley Drye will provide updates on the outcome of the dispute between the AARP and the EEOC, which potentially will help define the limits of appropriate wellness programs under applicable law.
Second Quarter Topic
Discrimination at work related to mental health disabilities seems to be on the rise. The Equal Employment Opportunity Commission (EEOC) reported a nearly 40% increase in mental-health based charges since 2006. Mental health disabilities are covered by the Americans with Disabilities Act, but employers and employees may not understand their respective duties or the available resources. To assist, the EEOC recently released a publication and a fact sheet on the employment rights of individuals with mental health conditions. To read the full article about the rights of employees with mental health conditions and the related responsibilities of employers with links to the new publications, click here: https://www.bna.com/worker-mental-health-n73014450290/
Third Quarter Topic
Reassignment: “The reasonable accommodation you can’t afford to miss.”
In U.S. vs. City of Philadelphia (February 6, 2017), a sanitation worker was fired due to a heart condition which created a 20-pound lifting restriction instead of being provided a reasonable accommodation. The Court found Philadelphia could have reassigned him as a reasonable accommodation because the city had numerous open positions at the time.
Under the ADA, when an accommodation is not available in a current role, the employer must consider transferring an employee to a vacant position as a reasonable accommodation. This requirement applies to both public and private employers.
For reassignment to be considered, the employee must be qualified for position and able to perform functions with or without accommodation. The employer, not employee, is responsible for identifying the open positions. Additionally, the EEOC has indicated the employee should not be forced to compete with other applicants for open positions. U.S. Courts of Appeal, however, are split on this issue.
Reassignment does not need to be considered when it would include a promotion, displace another employee, or when another employee is entitled to the position through a seniority system that is uniformly applied. Employers should document what positions were open at time of request for accommodation and the employee’s qualifications. Full article: http://www.bizjournals.com/bizjournals/how-to/human-resources/2017/04/the-reasonable-accommodation-you-can-t-afford-to.html
Fourth Quarter Topic
Medstar Harbor Hospital Will Pay $179,576 to Settle EEOC Disability Discrimination Lawsuit
Harbor Hospital has settled an ADA lawsuit filed by the EEOC following the firing of Jerome Alston, a respiratory therapist. Alston had a weakened immune system due to medication following a kidney transplant and requested to be excused from working in isolation rooms. Although the hospital granted the request initially, when Alston requested the accommodation a second time, the company chose to fire him instead of providing his requested reasonable accommodation.
EEOC attempted to reach settlement through the conciliation process but when that was unsuccessful, filed the lawsuit. The settlement requires Harbor hospital to pay monetary relief to Alston and enjoins the company from violating ADA. Harbor must also revise and distribute reasonable accommodations policy, provide ADA training to all personnel, and will report to EEOC on handling of any complaints of disability discrimination.
Full article: https://www.eeoc.gov/eeoc/newsroom/release/4-27-17a.cfm