EEOC Guidance on Employer-Provided Leave and the Americans with Disabilities Act
Concerned about the number of complaints filed against employers for failing to provide reasonable accommodations under the Americans with Disabilities Act (“ADA”), the Equal Employment Opportunity Commission (“EEOC”) recently issued a reminder to employers about their obligations. While clarifying that the additional guidance does not create any new obligations, the EEOC reminded employers about the following:
* It is not sufficient to grant employees the maximum amount of leave under the Family and Medical Leave Act (“FMLA”) and/or state equivalent (such as California’s Family Rights Act (“CFRA”)) to meet obligations under the ADA. Instead, under the ADA, employers must also consider granting additional leave as a form of reasonable accommodation (beyond that required by the FMLA or CFRA), unless doing so will create an undue hardship for the employer. As the EEOC indicated, “the Commission takes the position that compliance with the FMLA does not necessarily meet an employer’s obligation under the ADA, and the fact that any additional leave exceeds what is permitted under the FMLA, by itself, is not sufficient to show an undue hardship.” As you already may know, the “undue hardship” standard is not easy for employers to meet.
* To the extent employers use form letters to instruct employees to return to work after they exhaust FMLA/CFRA leave, such form letters should explain that additional leave may be requested as a form of reasonable accommodation.
* To the extent employers use a third party to administer FMLA leaves, that contractor should communicate often with the employer’s Human Resources department to avoid mishandling accommodation requests. [Indeed, it is not uncommon to see miscommunication or lack of communication between the leave administrator and Human Resources in disability discrimination litigation.]
* An employer should not have blanket policies requiring employees to be “100% healed” or able to work without restrictions before they return to work. Under the ADA, an employee is qualified if s/he can perform the essential functions of the job with or without reasonable accommodation.
* According to the EEOC, “an employer will violate the ADA if it claims an employee with medical restrictions poses a safety risk but it cannot show that the individual is a ‘direct threat.’” In other words, the employer must show that an employee’s disability poses a “significant risk of substantial harm” to self or others. If the employee poses a “direct threat,” the employer must then consider whether a reasonable accommodation may eliminate or diminish that threat.
The EEOC also clarified that, at least under the ADA, certain employer practices are allowed. For example, employers may have policies requiring all employees to provide a doctor’s note or other documentation to support the need for a leave of absence. Employers also may enforce policies relating to unplanned absences, as long as the policies are modified, as needed, to reasonably accommodate employees who have disability-related absences. Lastly, under the ADA (but not necessarily under California or other state laws), indefinite leaves of absence do not have to be provided as a reasonable accommodation. The EEOC’s guidance is available here.
EEOC Final Rule Regarding Wellness Programs
In addition to the reasonable accommodation guidance discussed above, the EEOC recently issued final rules describing how the ADA and the Genetic Information Nondiscrimination Act (“GINA”) apply to wellness programs that request health information from employees and their spouses. The EEOC also issued extensive questions and answers with respect to both rules.
In particular, the ADA and GINA generally prohibit employers from obtaining and using information about employees’ own health conditions or about the health conditions of their family members. Prior to the recent final rules, both regulations allowed employers to ask health-related questions and to conduct medical examinations (such as biometric screenings) as part of a “voluntary wellness program” providing health and genetic services. The EEOC’s final rules clarify what “voluntary” means and how employers may and may not use the health information gathered. The EEOC also has issued new requirements as to the amount of incentives allowed to encourage employees to participate in wellness programs that require disclosure of health information.
For example, to be considered “voluntary,” a wellness program that includes health condition inquiries or medical examinations may not require employees to participate, may not deny access to health coverage to any employee who elects not to participate in a wellness program, and may not retaliate against employees for not participating. More importantly, to ensure that participation is voluntary, employers must provide a notice to employees clearly explaining what medical information will be obtained, how it will be used, who will receive it, and the restrictions on disclosure. This notice requirement applies to all wellness programs that ask employees to respond to disability-related inquiries and/or undergo medical examinations. The EEOC will be issuing a sample notice shortly.
The wellness program also must be “reasonably designed to promote health and prevent disease,” which means, for example, that the program may not require an overly burdensome amount of time for participation, involve unreasonably intrusive procedures, require employees to incur significant costs for medical examinations, be a subterfuge for violating the ADA or other employment discrimination laws, or ask employees to provide medical information without providing any feedback about risk factors or without using aggregate information to design programs or treat any specific conditions.
The other new rule allows employers to offer certain incentives to encourage employees to participate in their wellness programs. For example, if the wellness program requires employees (or their spouses) to answer disability-related or health status questions or to take medical examinations, then, the maximum allowable incentive that can be offered is 30% of the total cost of self-only coverage or, if more than one group plan is offered, 30% of the lowest cost plan offered. If the employer does not offer health insurance, the maximum allowable incentive that can be offered to employees to complete a health risk assessment or have annual tests for glucose and cholesterol levels is 30% of the cost that a 40-year-old non-smoker would pay for self-only coverage under the second lowest cost “silver plan” on the state and federal health care exchange in the location that the employer identifies as its principal place of business. No incentives are allowed in exchange for the current or past health status information of employees’ children (whether they be adults or minors).
Both rules apply to all wellness programs (even if not offered through a group health plan) if they seek health condition information about the employees or their spouses. The new ADA and GINA provisions relating to limits on financial incentives and the notices to employees apply prospectively to wellness programs as of the first day of the first plan year that begins on or after January 1, 2017.
The rest of the provisions merely clarify existing obligations and are applicable immediately. The EEOC’s final rules are available at https://www.federalregister.gov/articles/2016/05/17/2016-11558/regulations-under-the-americans-with-disabilities-act and https://www.federalregister.gov/articles/2016/05/17/2016-11557/genetic-information-nondiscrimination-act. The questions and answers related to these final rules are available here.
May an employer set a limit on the amount of medical leave employees may take under the ADA?
No. Polices that place a finite cap on the amount of leave that will be provided (e.g., to a maximum of 6 months or 1 year) have been found to violate the ADA (and state equivalent laws). Each situation must be evaluated on its own. Because issues relating to reasonable accommodations are very fact-specific and frequently give rise to litigation, we highly recommend that employers seek legal assistance if there are any questions or doubts about their obligations under the ADA or state equivalents.
If my organization has a wellness program, are there any steps that should be taken in light of the new rules?
Yes, employers should review their current wellness programs (and seek counsel, where necessary) to ensure compliance with the complex, intertwining, and sometimes differing obligations under the ADA, GINA, HIPAA and the Affordable Care Act.