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Category Archives: Americans with Disabilities Act

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“The Bermuda Triangle” ADA-FMLA-Workers’ Comp Quiz

Posted in Americans with Disabilities Act, Family and Medical Leave Act, HR, Workers' Compensation
(DEAR READERS: I know that using “Bermuda Triangle” to refer to issues involving the Americans with Disabilities Act, the Family and Medical Leave Act, and workers’ compensation is corny, trite, stale, and overdone. But I’m being ironic, so it’s ok.) No. 1: FMLA leave can run _____________ with workers’ compensation leave. A. Consecutively B. Conformity C. Concurrently… Continue Reading

10 habits of highly effective HR professionals (April Fool’s edition)

Posted in Americans with Disabilities Act, Corporate Culture, Discrimination, Elections, Employment at Will, Equal Pay, Family and Medical Leave Act, Harassment, HR, Labor Relations, Politics, Protected Concerted Activity, Retaliation, Safety, Wage-Hour, Workers' Compensation
DEAR READERS: Before you accuse me of legal malpractice, take a look at tomorrow’s date.   Habit 1: Discriminate, retaliate, harass — have a ball! There’s a new sheriff in town, with a more employer-friendly, compliance-assistance-oriented U.S. Department of Labor (we think) and the nullification of burdensome regulations like the gone-and-not-lamented Fair Pay and Safe Workplaces Rule.… Continue Reading

EEOC asks court to throw out wellness lawsuit filed by AARP

Posted in Americans with Disabilities Act, Genetic Information Non-Discrimination Act, GINA
I’ve written here and here about the lawsuit filed by the AARP against the U.S. Equal Employment Opportunity Commission, seeking to invalidate the EEOC regulations relating to wellness programs and the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. On Wednesday, the EEOC filed a motion asking the court to throw out the… Continue Reading

Queen for a day: If I ran the world, would I scrap our employment laws?

Posted in Americans with Disabilities Act, Discrimination, Employment at Will, Family and Medical Leave Act, HR, Labor Relations, Telecommuting, Wage-Hour
Walter Olson of the great Overlawyered.com sent a challenge over Twitter earlier this week: For those of you who don’t know Mr. Olson, he’s a libertarian.  :-) I have to admit, I needed time to process this! I complain about these laws all the time, but would I really want to get rid of all protections… Continue Reading

Court won’t block EEOC’s wellness rules — for now.

Posted in Americans with Disabilities Act, Benefits, Genetic Information Non-Discrimination Act, GINA
A federal judge in the District of Columbia has denied the AARP’s request for a preliminary injunction against the wellness rules issued by the Equal Employment Opportunity Commission last May. As a result, the EEOC rules — which establish when participation in an employer-sponsored wellness program is “voluntary” within the meaning of the Americans with… Continue Reading

What is “voluntary”? Thoughts about the AARP wellness lawsuit against the EEOC

Posted in Americans with Disabilities Act, Genetic Information Non-Discrimination Act, GINA, HIPAA Privacy
The Equal Employment Opportunity Commission is only the latest in a string of federal agencies who’ve been sued recently in an effort to stop their regulations from taking effect. We have the two lawsuits against the U.S. Department of Labor challenging the overtime rule that is scheduled to take effect on December 1 (argument in those… Continue Reading

Workplace investigations and the case of the planted peanut butter

Posted in Americans with Disabilities Act, Discrimination, Harassment
I’m a week late with this follow-up. (Sorry.) Two weeks ago, I posted about an employee (fictionally named “Zoey”) who had a peanut allergy. After she asked a peanut-butter-loving co-worker (“Addison”) to be considerate, Zoey found a big glob of peanut butter smeared under her desk, which caused her to get sick. Addison denied being responsible. To… Continue Reading

Peanut passions, the ADA, and co-workers who take an employee’s allergy with a grain of salt

Posted in Americans with Disabilities Act, Discrimination, Harassment
Karla Miller of the “WorkAdvice” column in the Washington Post had a doozy last week. I’m going to assume that all the people involved in this story are female. I’m probably wrong, but that will allow me to make up fake names for them. PEANUT BUTTER PASSION The letter writer (let’s call her Zoey), had a peanut allergy… Continue Reading

Weekly catch-up

Posted in Americans with Disabilities Act, Discrimination, Equal Pay, Franchise, Wage-Hour
Massachusetts has had a “comparable worth” law forever, but Gov. Charlie Baker just signed some amendments that will make it easier for women (and men) to assert pay equity claims. In addition to making it easier for plaintiffs to prove that two jobs are “substantially similar,” the law prohibits asking for salary history before a conditional offer of… Continue Reading

EEOC issues wellness disclosure form, Q and A

Posted in Americans with Disabilities Act, Genetic Information Non-Discrimination Act, GINA
The Equal Employment Opportunity Commission has issued a sample “wellness notice” that employers can give to employees before they are asked to provide medical information in connection with wellness-related health risk assessments or biometric screenings. The notice provides information about employees’ rights, and will be required in some form for all wellness plan years that begin… Continue Reading

School’s out! So what’s with this summer employment law quiz?

Posted in Americans with Disabilities Act, Discrimination, Gender Identity Discrimination
No more pencils, no more books, no more teacher’s dirty looks . . . except for one little quiz on employment law issues that come up during the summer. Don’t worry about your score – I’m told that Teacher already has her flip-flops packed and is on her way to Cancun. No. 1. You are the office… Continue Reading

Military employment rights: A recap for the Memorial Day weekend

Posted in Americans with Disabilities Act, Family and Medical Leave Act, Military, USERRA
In honor of Memorial Day weekend, here’s a summary of the rights of employees who take leaves of absence to serve our country, and their family members. USERRA The Uniformed Services Employment and Reemployment Rights Act of 1994 protects employees who leave their jobs to serve in various military capacities. Five year (or more) rule. An… Continue Reading

Too many RULES, man!

Posted in Affordable Care Act, Americans with Disabilities Act, Genetic Information Non-Discrimination Act, GINA, Only in California, Wage-Hour
“Do this, don’t do that, can’t you read the rules . . .”* Of course, the mega-topic this week was the U.S. Department of Labor’s Final Rule on white-collar exemptions to the overtime provisions of the Fair Labor Standards Act. Ellen Kearns, co-chair of our Wage and Hour Practice Group, wrote a great Client Bulletin… Continue Reading

Legal, or Illegal? Employee leaves of absence and the ADA

Posted in Americans with Disabilities Act, Discrimination, Family and Medical Leave Act
The Equal Employment Opportunity Commission came out this week with a fact sheet dealing with leaves of absence and the Americans with Disabilities Act. First, I say kudos to the EEOC for again providing good, readable, not-overly-technical “preventive” guidance for employers. Second, let’s see what you know about the EEOC’s position on leaves and the… Continue Reading

Is obesity a “per se” disability? One court says no.

Posted in Americans with Disabilities Act, Discrimination
A panel of the U.S. Court of Appeals for the Eighth Circuit ruled this week that obesity is not a “disability” within the meaning of the Americans with Disabilities Act — even as amended in 2009 — unless the condition was caused by some underlying physiological disorder. In addition, if the individual develops a medical condition… Continue Reading

Is driving an “essential function of the job” for your road warriors?

Posted in Americans with Disabilities Act
If your employee isn’t a professional driver but spends a lot of time on the road, how “essential” a job function is driving for ADA purposes? Is driving “essential” at all? In what I consider to be a very significant result under the Americans with Disabilities Act, a three-judge panel of the U.S. Court of Appeals for the… Continue Reading

Employers, the ADA interactive process applies to post-offer medical examination, too

Posted in Americans with Disabilities Act, Discrimination
True or false: A rotator cuff injury is a "disability" within the meaning of the Americans with Disabilities Act. The best answer is “In all likelihood.” A minor tear that can be repaired may not be a disability (it depends), but a severe injury, or one that is inoperable with residual limitations, probably is. True… Continue Reading

Who was naughty, and who was nice in employment law this year

Posted in Affordable Care Act, Americans with Disabilities Act, Discrimination, Genetic Information Non-Discrimination Act, GINA, Harassment, Labor Relations, Lawyers!, Pregnancy, Protected Concerted Activity, Retaliation, Safety, Social media, Telecommuting, Wage-Hour
Who’s been naughty and who’s been nice in labor and employment law? Here are my picks for 2015. Feel free to add your own in the comments. NAUGHTY! The National Labor Relations Board, for being naughty in too many ways to mention. Its rules on employer handbook policies, including confidentiality and social media, are unrealistic… Continue Reading

Two new high-profile employment suits that you’ll want to watch

Posted in Americans with Disabilities Act, Defamation, Discrimination, Employment at Will, Retaliation
We have not one, but two new high-profile employment lawsuits that are worth following long-term: Former head football coach Steve Sarkisian’s alcoholism-discrimination lawsuit against the University of Southern California, and the wrongful termination lawsuit filed against the Michigan House of Representatives by former aides to adulterous former legislators Todd Courser (resigned) and Cindy Gamrat (expelled). Full “scorecards” appear… Continue Reading

Trojan travails: Coach Sarkisian’s alcoholism-discrimination lawsuit against USC

Posted in Americans with Disabilities Act, California FEHA, Discrimination, Retaliation
Readers have been clamoring for my take on the alcoholism-discrimination lawsuit filed by Steve Sarkisian against the University of Southern California. Actually, I got one email from a reader, who had a better take on the whole situation than I do. But who cares! I still think it’s a great topic, and a case worth following! Here’s the deal,… Continue Reading

EEOC provides ADA guidance for employees’ doctors

Posted in Americans with Disabilities Act, Discrimination
Gee, Ma, this is swell! The Equal Employment Opportunity Commission came out this week with some guidance about the rights of individuals with AIDS and HIV. The guidance is unremarkable for anyone who is familiar with the Americans with Disabilities Act, although it never hurts to get a refresher, and in any event it’s aimed at employees, not… Continue Reading

A cornucopia of wellness information for employers!

Posted in Affordable Care Act, Americans with Disabilities Act, Genetic Information Non-Discrimination Act, GINA
UPDATE (Dec. 7, 2015): The EEOC has extended the comment period on its proposed GINA-wellness rule by 30 days. The new comment deadline is January 28, 2016. Earlier this month, I had a relatively short post on the proposed rule on wellness incentives and the Genetic Information Nondiscrimination Act issued by the Equal Employment Opportunity Commission. I… Continue Reading

BEFORE YOU FIRE: 20 questions every employer should ask

Posted in Americans with Disabilities Act, Discrimination, Employment at Will, Evidence, Family and Medical Leave Act, Harassment, Labor Relations, Protected Concerted Activity, Retaliation, Safety, Settlements, Unemployment, Workers' Compensation
So you think you’re ready to terminate an employee. Are you really? Here are 20 questions that every employer should ask itself before going ahead with a termination. If you think I’ve missed anything, please feel free to add your own in the comments. GETTING STARTED No. 1. Is the employee covered by a collective bargaining agreement?… Continue Reading