Is it ok under the ADA and the GINA to offer wellness incentives? The EEOC explains it all for you

Posted by Robin E. Shea on July 29, 2011

Doctor offering money.jpgIs it legal to bribe your employees to be healthy? Wouldn't that violate the Americans with Disabilities Act, or the Genetic Information Nondiscrimination Act, or something? 

In other words, is it legal any more for an employer to offer incentives  -- like, money? -- to employees to participate in "voluntary" wellness programs?

The Bureau of National Affairs has obtained and released an opinion letter from Peggy Mastroianni, legal counsel for the Equal Employment Opportunity Commission, addressing these questions.

Voluntary Wellness Programs and the ADA

As most of our readers know, the Americans with Disabilities Act generally prohibits employers from asking for medical information from current employees. One exception to the rule is when the inquiry is "job-related and consistent with business necessity," which is not the subject of today's post.

Another exception applies to inquiries that are part of a "voluntary wellness program," provided that the information obtained is kept confidential and not used in a manner that violates the ADA.

What many readers may not know is this: The EEOC has never taken a formal position on whether incentives to participate in a wellness program mean that the program is no longer "voluntary." If the wellness program is not voluntary, then any medical inquiries without "cause" would violate the ADA.

Many, many, many wellness programs today offer cash or other incentives to employees who participate. Although the EEOC has not taken a position, it has indicated its approval of incentives (with some provisos) in its regulations interpreting the Genetic Information Nondiscrimination Act. Based on this, employers are probably safe in continuing to offer wellness incentives, and we can hope that if the EEOC decides to take a contrary position on the ADA implications, the agency will enforce it prospectively and not retroactively.

What the GINA Regulations Say About Voluntary Wellness Programs

The EEOC's regulations on the employment-related part of the GINA (aka "Title II") deal extensively with wellness programs. Mastroianni's opinion letter is essentially consistent with the GINA regs. It is ok to ask for "genetic information" in connection with an "incentive" voluntary wellness program IF

*The employee first provides a knowing and voluntary written authorization allowing the wellness provider to request this information.

*The paperwork that the employee has to fill out clearly designates questions that may elicit "genetic information" and clearly indicates that the employee does not have to answer those questions and will not forfeit any part of the incentive by refusing to answer.

*If the employee chooses to answer and provides "bad" information (for example, a family history in which every male has died of a heart attack before the age of 50, and the employee is a 49-year-old male), the employer cannot use that information as the basis for any adverse action against the employee. (In fact, the employer should never receive this information at all, as discussed below.) On the other hand, the wellness provider may use the information to recommend a disease management program for the employee. For example, it would be fine for the wellness program to recommend that the employee consult with a cardiologist, take steps to lower his "bad" cholesterol, and be assessed for bypass surgery, angioplasty, or catheterization.

*Even the disease management program itself can offer incentives to participants without violating the GINA. In other words, the program can offer an "incentive within an incentive." But the incentive must be equally available to those who are at risk "through no fault of their own" (for example, because of bad family history), and to those who are at risk because of unhealthy lifestyles (for example, because they live on a diet of french fries smothered with gravy and nacho cheese, and smoke four packs a day).

*The wellness provider may not disclose any individually identifiable health information to the employer, although it may disclose aggregated information.

*****Keep in mind that the GINA definition of "genetic information" includes family history information.*****

As the EEOC would say, We hope this has been helpful to you.

Employment Law Roundup: Facebook wage rant, EEOC scores again, FMLA bereavement leave, gender gap narrows, Menorah House and the Sabbath, mini-horse as accommodation

Posted by Robin E. Shea on July 23, 2011

Cowboy.jpgOdds and ends from the employment law world this week:

Facebook rant about wages didn't create retaliation claim. Molly DiBianca of the Delaware Employment Law Blog reports on a decision from a federal court in Florida saying that a Facebook rant about an employer's alleged violations of the Fair Labor Standards Act overtime provisions was not "protected activity" that would trigger the FLSA's anti-retaliation protections. 

Cavalier about age discrimination? The EEOC reached a $1 million class settlement with Virginia's Cavalier Telephone, LLC, over allegations that the company used recruiters who made comments that showed age-based bias including that they did not want to hire anyone who was "over 40 and pudgy." The two class representatives also alleged that they were demoted and terminated after they complained. The EEOC is on a roll with this one and its recent $20 million settlement with Verizon, which resolved claims related to application of a no-fault attendance policy to employees with disabilities.

FMLA leave for death of a child? Sen. Jon Tester (D-Mont.) has introduced legislation that would expand the Family and Medical Leave Act to include job-protected leave for the death of an employee's son or daughter. The bill, which has no co-sponsors, is entitled the Parental Bereavement Act (S. 1358), and would apply to employers of 50 or more employees.

You go, girls! The federal Bureau of Labor Statistics reports that the wage gap between men and women narrowed slightly in 2010, with women now making 81.2 cents for every dollar that men earn. The "wage gap" statistics do not control for position held, years in workforce, educational level, or any other non-discriminatory reason that might explain the gap. 

How can this be? Jon Hyman of Ohio Employer's Law Blog reports that the EEOC has sued a nursing home called Menorah House for allegedly refusing to accommodate the need of an employee to observe the Sabbath. HUH? Granted, the employee is not Jewish but a Seventh-Day Adventist, but still!

Why couldn't the pony talk? It was a little horse. Eric B. Meyer of The Employer Handbook blog discusses whether a miniature horse can be a reasonable accommodation under the ADA. Inquiring minds want to know!

No-Fault Attendance? In light of the EEOC/Verizon settlement, what's the point?

Posted by Robin E. Shea on July 14, 2011

Shrugging baby.jpgAre no-fault attendance policies to go the way of the horse and buggy?

Employers would do well to ask themselves that question, in light of the recent $20 million settlement between the U.S. Equal Employment Opportunity Commission and Verizon Communications. First, let's debunk a few erroneous assumptions about the settlement:

*We can blame this on the overly-aggressive, anti-employer Obama Administration. Nope. Actually, the case began with a Commissioner's charge filed in the fall of 2008, when George W. Bush was still in office.

*Well, then, we can blame it on that horribly-liberalized Americans with Disabilities Act Amendments Act. Nope again. The ADAAA didn't take effect until January 1, 2009. The charge against Verizon was already pending by that time.

*OK, whatever. But this still isn't any big deal. I've read all those articles about how employers need to be flexible with their leave policies, and I'm trying to do that now. Great! But that isn't what the Verizon case was about. The case was about charging absences under a no-fault attendance policy to employees who missed work because of medical conditions that were "disabilities" within the meaning of the ADA. It does not appear* that medical leaves were at issue. Exempting ADA conditions from no-fault attendance policies is a huge deal.

*Facts are sketchy because the parties reached an agreement before the EEOC actually filed suit. The lawsuit and the proposed consent decree that will settle the lawsuit were filed at the same time.

*Yawn. The Family and Medical Leave Act already says you can't charge no-fault absences against someone who's out for an FMLA-qualifying reason. True. But the EEOC's interpretation of the ADA(AA) means that no-fault absences shouldn't usually be charged if the absence is due to a disability even if the employee does not qualify for FMLA leave -- whether it's because she hasn't been employed for 12 months or 1,250 hours, or because he's exhausted his entitlement already.

*Well, anyway, the EEOC is a big dog and gets settlements like this all the time. Not true. This is the biggest settlement in the EEOC's history, according to the agency.

*Well, then, Verizon is a great big wimp. Maybe yes, and maybe no. I vote no, although I can't help wishing that Verizon had put the EEOC to the test. The threatened litigation was against 24 subsidiaries nationwide on behalf of employees represented by the Communication Workers of America (who, by the way, has an iPhone app -- they don't call 'em "Communication Workers" for nothing!), and in addition to the Commissioner's charge, charges were filed by the CWA and individual employees. Litigation of this scale brought by an agency of the federal government promised to be astoundingly expensive and disruptive, even if Verizon were to eventually win. As part of the settlement, Verizon got a pretty good deal (considering) on how to apply its attendance policy in the future. The proposed consent decree (see paragraph 20.03) at least allows the company to consider whether the employee or designee followed the company's procedures, whether the absences have been or are expected to be "unreasonably unpredictable, repeated, frequent or chronic," and whether excusing the absences would be an undue hardship. 

You digress. What about your original question? Oh, yeah. Sorry. In my opinion, employers should seriously reassess the utility of no-fault attendance policies. The FMLA has prohibited charging of no-fault absences for a long time. Most employers I know voluntarily refrain from charging no-fault absences to employees who are out because of work-related injuries or illnesses. Now, it appears that the EEOC's position is that exceptions have to be made for "disabling" conditions, and with the ADAAA, that means a lot of conditions. So, with all these exceptions, an employer has to ask: Is there any point to having a "no-fault" attendance policy?

In the old days before no-fault policies, certain types of absence were treated as "excused," and other types of absences were treated as "unexcused." There were lesser or no penalties for excused absences but fairly severe penalties for unexcused absences. Most employers abandoned these policies at least 20 years ago, before the FMLA and the ADA were gleams in a Congressman's eye, because it took too much effort to police them, and it made sense to treat employees as adults. In light of the Verizon settlement, employers may want to consider returning to the more-paternalistic "fault-based" attendance systems.

What do you think? Talk amongst yourselves.

Accused of sexual harassment? That's bad, but don't make it worse.

Posted by Robin E. Shea on July 08, 2011

"It could be that the purpose of your life is only to serve as a warning to others."

A politico and a priest in the news this week have much to teach men* who are accused of sexual harassment. Former head of the International Monetary Fund and French presidential hopeful Dominique Strauss-Kahn may not be guilty of sexual assault, after all. Meanwhile, a popular TV priest has put his foot in it more than once after being accused of sexual and other improprieties.**

caution man.jpg*I realize that women can also be accused of sexual harassment and that men can be victims, and these warnings will apply to them, as well.

**PLEASE NOTE: The accounts of the allegations in the cases I am about to discuss are based on the latest information available in the media, but investigations are ongoing in both cases. I am not expressing any opinion as to whether the men or their accusers are in fact guilty of any wrongdoing.

Two cheers for DSK. Let's start with the (relatively) positive. From a criminal standpoint, DSK is looking better by the minute, and his accuser is looking worse. DSK has been released from house arrest, and although the investigation is continuing, he seems to be in pretty good shape. This came after it was alleged that the accuser, a Guinean immigrant, had repeatedly lied to get asylum in the United States, including a false claim of gang rape, had possibly been involved in drug trafficking, and had been overheard in a recorded telephone conversation telling an incarcerated boyfriend that "this person is rich and there's money to be made."

So, all's well that ends well if you're DSK, right?

Well, not so fast. First, he had to resign as head of the IMF. Second, although he may be innocent of assault or any form of non-consensual sexual relations, he continues to appear guilty of serious sexual impropriety, including having consensual relations with a hotel maid while he was married. (Current reports are that she claimed assault after he refused to pay her.) Finally, he's now been accused of attempted rape by another woman.

All of which brings me to two points I constantly harp on when I'm conducting sexual harassment training.

1. Men, if you want to virtually guarantee that you'll be accused of sexual harassment, be sure to have an extramarital relationship with a co-worker. (In light of the DSK situation, I will add "independent contractor" as well.) These relationships always end badly for someone, and when people are upset and emotional they tend to do foolish, vindictive things, like falsely accusing those who hurt them of sexual harassment. Even if you're innocent of harassment, you'll still have a lot of unpleasant explaining to do to your wife and family, and you will have jeopardized, if not completely ruined, your career. 

2. If you make mistake #1, don't compound it by lying about it -- tell the truth. It appears that DSK may have admitted to consensual sex early in the investigation, which is to his credit and is no doubt helping to bring this case to a relatively quick close. In my own experience, alleged harassers who promptly admit to the consensual relationship (if that is, in fact, what really happened) are in the best position to defend themselves, and usually prevail.

So, the politico did all right, apart from having the encounter that got him into trouble in the first place.

The strange case of Father Corapi. This case has not received wide attention, so I'll provide a quick summary. Father John Corapi was a fixture on the Catholic cable TV network for many years, and a popular and sought-after preacher with a dramatic story of being converted after a go-go career in L.A., during which he allegedly dated Hollywood starlets, drove a Ferrari, and became a cokehead. He subsequently went bankrupt and nearly died from his drug addiction, but thanks to the fervent prayers of his mother, he changed his life and became a Catholic priest.

As a preacher, he was so successful that he had his own media company to sell his videotapes and DVDs, and to handle his speaking engagements. (This will be important.)

Priests and nuns who belong to religious orders are generally required to make vows of chastity, poverty, and obedience to their superiors. (This will be important, too.)

Several months ago, a woman who worked for Father Corapi's media company went to his bishop with allegations that Father Corapi was abusing alcohol and drugs, having sexual relations, and even being physically violent. The bishop, as he should have, mandated that the allegations be investigated, and Father Corapi was quietly suspended from ministry while the investigation was pending.

Oh, sorry, did I say "quietly"? Yes, it is true that neither the bishop nor the religious order said anything publicly about the investigation, presumably to protect both the accuser and Father Corapi, who had not been found guilty of anything yet.

However, Father Corapi made one of the biggest blunders that a person accused of sexual misconduct can make: He went on the offensive. He authorized a posting on his website that accused his accuser of physical assault and an "unsubstantiated rant." He also sued her in Montana state court (where his media company is based), asserting claims that she'd violated a non-disclosure clause in a separation agreement and for defamation.

The suit reportedly had its intended effect, gagging the accuser and witnesses, thus bringing the investigation to a standstill. Meanwhile, the stalled investigation meant that Father Corapi remained on suspension indefinitely.

In June, Father Corapi apparently decided that he was tired of living in limbo (pardon the expression) and renounced his priestly faculties and announced his new web persona, "The Black Sheepdog." He has accused his accuser of being "seriously troubled," and implies that she is not sane. He has also blasted the bishop for being unfair and not giving him a chance to defend himself. Many of his followers have sided with him -- vehemently.

Corapi has continued to post in this vein ever since. Finally, this week, the religious order apparently got fed up and posted its side of the story. According to the religious order, it was impossible to interview the accuser or her co-workers because they had been silenced by Corapi's lawsuit, but the investigation nonetheless found through emails and text messages that he had been carrying on with at least one woman, had "sexted," had a million-dollar estate in Montana as well as multiple vehicles and boats, and had abused drugs and alcohol.

His bluff perhaps having been called, Corapi posted a lackluster defense yesterday (see Black Sheepdog link, above) that failed to address many of the specifics set forth in the religious superior's posting.

So, what should Corapi have done differently?

1. He should have cooperated with the investigation and allowed it to proceed. Although Corapi protested being suspended while the investigation took place, he should have realized that this is standard procedure and does not imply guilt. Accused harassers have been cleared (or sometimes found guilty but of much less serious conduct) in more instances than I can count. I'm not saying that the procedures are always fair to the accused, but in my experience they are fair much more often than not. 

2. He should not have sued his accuser. Even if it did not appear retaliatory or intimidating (which it did), Corapi should not have sued his accuser -- especially not right off the bat, before an investigation could even begin. The non-disclosure agreement and severance pay should not have precluded the accuser from making "internal" allegations of un-priestly conduct to Corapi's bishop and his religious order. (I put "internal" in quotes because she was an employee of Corapi's media company, not an employee of his diocese or religious order.) The woman has never gone public with her allegations, as far as I know, but took them only to church authorities. If I were her, I'd argue that the non-disclosure agreement, to the extent that it would prohibit this, is void as against public policy and unenforceable.

3. If you must sue your accuser before the investigation even starts, don't sue for defamation, for cryin' out loud! Truth is a defense to a defamation claim. By including this claim in his lawsuit, Corapi has opened himself up to free-ranging discovery about his alleged misconduct. The accuser-defendant will now have every reason in the world to subpoena the emails and "sexts," and to take the depositions of the individuals who conducted the investigation into her allegations. Based on what the religious order has posted, this could be a painful experience for Corapi.

Accused sexual harassers almost always ask whether they should bring some type of legal action against their accusers. I understand this feeling. And I always say, You can do anything you want, but I don't recommend that you sue your accuser (for all the reasons discussed above). Hard as it may be, the best course is usually to cooperate and tell the truth to the investigators -- even if you have to confess to an inappropriate relationship -- but otherwise to keep quiet and patiently await the outcome, difficult as that will be.

**PLEASE NOTE: To reiterate, the above accounts of the DSK allegations and the Corapi allegations are based on the latest information available in the media, but investigations are ongoing in both cases. I am not expressing any opinion as to whether DSK, DSK's accuser,  Corapi, or Corapi's accuser are in fact guilty of any wrongdoing.

6 ways to avoid being the EEOC's next hiring "test case"

Posted by Robin E. Shea on July 01, 2011

Gun sight.jpgThe U.S. Equal Employment Opportunity Commission recently held a meeting with "a battery of experts" on disparate treatment in hiring. According to the EEOC, hiring discrimination continues to run rampant.

Time for a grain of salt here: According to the EEOC's press release, most of the experts were from the EEOC, or were individuals who had been denied jobs and claimed they were discriminated against. Only one individual from an "employer" group was quoted (scroll way down for Rae Vann's comments). So I'm respectfully skeptical that there is an epidemic of hiring discrimination -- particularly so, since we know that the EEOC considers background and credit checks, and discrimination against the unemployed, to be illegal.

Plus, who's hiring these days, anyway?

All of my respectful skepticism aside, since this appears to be a big issue for the EEOC, it is a good idea for employers to ensure that their hiring practices will withstand scrutiny. Here are six suggestions that may help you stay out of trouble:

1. If you're a federal contractor, make sure your hiring processes comply with affirmative action requirements. These requirements are complex, and are about to become much more so if proposed regulations on recruitment of veterans go into effect. But make sure you are doing everything that your affirmative action consultants/attorneys tell you to do.

2. Even if you're not a federal contractor, periodically monitor your hiring statistics to ensure that applicants of a given race, national origin, age, or sex (etc.) are not being rejected disproportionately. If you see a statistical problem, then do a more in-depth analysis of these individuals' qualifications to ensure that you can explain the disparities.

3. Cast as wide a net as you can. Circumstances will vary, of course -- when you're searching for your new CEO, you don't want to consider every candidate in your county who has a worker's permit. But, generally, the less "cherry-picking," the better. Make sure that you recruit from appropriate sources to ensure that you have a balanced pool of candidates ... or, at least, that no one who is qualified will be able to say you didn't give them the chance. 

4. Make sure your hiring managers know which criteria are legal, and which are illegal. If you have not had training for your hiring managers in a while, it may be a good idea to conduct some. Managers need to be aware of the laws that apply to your company and the consequences for violation. They also need some practical advice on how to deal with difficult hiring situations, such as qualified candidates who may need disability-related or religious accommodations.

5. Watch out for "gray areas." In my experience, few employers discriminate on the grounds that are clearly prohibited by law, but there are a number of areas that are in a "gray zone" and may cause problems. Background and credit checks, and "unemployment discrimination," are some areas into which the EEOC is trying to expand the reach of the law, contending that these screening criteria disproportionately exclude racial and ethnic minorities. I'd also recommend being careful about rejecting candidates because they are overweight or smoke. Depending on the location of the employer, these individuals may be protected. Under the Americans with Disabilities Act Amendments Act, some overweight individuals may qualify as "individuals with disabilities" or individuals who are "regarded as" having disabilities. In addition, some local laws prohibit "appearance discrimination." Many state laws prohibit discrimination against individuals who smoke off-premises during non-working time. Discrimination based on sexual orientation violates an ever-growing number of state and local laws. Although there is currently no federal law specifically addressing it (not yet, anyway), some courts have considered sexual orientation discrimination to be a form of unlawful "sex stereotyping" that violates Title VII. 

6. Make sure your post-offer medical screening complies with the ADA and the Genetic Information Non-Discrimination Act. You should not be doing any medical screening pre-offer. (You aren't, are you?) If you screen individuals post-offer, you should make sure that the same screening is done for all offerees in that job classification, and that no offers are withdrawn unless you have thoroughly considered reasonable accommodation options and have determined that none are possible. Compliance with the GINA is relatively easy: just be sure that you provide the "safe harbor"* language on the medical forms that you give the offeree to take to the doctor. If you do the medical screening in-house, make sure that you are not asking the offeree for any type of "genetic information," which includes questions about family history.

This is far from an all-inclusive list, but if you monitor your performance in these areas and correct problems promptly, you will minimize your chances of being the EEOC's next hiring "test case."

*Here is the GINA "safe harbor" language:

NOTICE UNDER GENETIC INFORMATION NON-DISCRIMINATION ACT

The Genetic Information Non-Discrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.