Americans with Disabilities Act (ADA)

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On August 16, 2022, the U.S. Court of Appeals for the Fourth Circuit held that gender dysphoria could qualify as a disability under the Americans with Disabilities Act (ADA). (Williams v. Kincaid, No. 21-2030 (4th Cir. Aug. 16, 2022)) According to the World Professional Association for Transgender Health Standards of Care, gender dysphoria…

Employers routinely strive to find innovative ways to recruit, retain, and manage top talent. Proponents of artificial intelligence (AI) advocate that it can be a powerful tool for such purposes given that AI can be used to collect and analyze massive amounts of candidate and employee data in many different ways and in a fraction of the time needed by human analysts. By way of example, AI may be used in the hiring process to analyze qualifications or mine data from resumes and other submissions by candidates. It also may be used to assess an individual’s perceived fitness for a particular job, including their personality, aptitude, cognitive skills, or other perceived qualities, based on their performance during screening tests, video interviews, or other virtual interactions. AI also may be used to monitor and analyze employees’ working patterns or productivity based on measurable output, including even the most fundamental of activities such as keystrokes. Employers might presume that, because this is data-driven, there is no risk of unlawful discrimination or bias.…

Continue Reading EEOC issues guidance on employer use of AI under the ADA

On July 26, 2021, President Biden announced that individuals with long COVID (referred to as COVID long-haulers) could be protected under several federal civil rights laws, including the Americans With Disabilities Act (ADA).

While some individuals fully recover from COVID, others experience debilitating symptoms that last long after first developing COVID-19 (long COVID), including extreme…

For more than a year, many American workers have been working from home. Now, as restrictions are lifting across the country, employers are beginning to call employees back to the office. Employers may see an uptick in requests to work remotely, particularly given the popularity of working from home. In responding to such requests, employers must be mindful of the Americans with Disabilities Act (ADA) and similar state laws.

Large portions of the American workforce report that they enjoy working from home, and the pandemic has shown telework is possible.

A recent study conducted by Harvard Business School Online reveals that some employees are not interested in returning to the office. The survey showed that 81 percent of respondents either don’t want to go back to the office, or would prefer a hybrid schedule (allowing them to work from home 2-3 days a week) going forward. One in three employees report that they felt that their overall performance and quality of their work had improved in the remote work environment, and the same percentage indicated that they are able to focus more at home than they are in the office.…

Continue Reading Navigating post-pandemic telework requests

On January 7, 2021, the EEOC proposed two rules, under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), designed to clarify what incentives employers may offer employees and their family members for joining employer-sponsored wellness programs.  In the 2017 case AARP v. EEOC, the then-existing regulations on employer-sponsored wellness programs were revoked.  Since then, employers have lacked guidance on how to structure wellness programs without violating the requirements of both the ADA and GINA that individuals’ disclosures of health information be voluntary.  The EEOC’s new rules seek to balance the competing interests.  However, given the Biden Administration’s recently issued freeze on proposed rules that have not yet been enacted, employers should not act on the EEOC’s proposed rules yet.

Legal framework

Under the ADA, employers cannot require employees to disclose medical information that might enable employers to discriminate against them.  Similarly, under GINA, the disclosure of the health information of a family member of an employee must also be voluntary.  In 2016, the EEOC finalized rules that outlined how employers could incentivize employees and their family members to participate in wellness programs that required the disclosure of health information without violating the ADA or GINA.  Under the 2016 rules, an employer could offer an incentive of up to 30 percent of the total cost of self-coverage without the wellness program running afoul of the ADA and GINA.  However, in AARP v. EEOC, the United States District Court for the District of Columbia held that the EEOC had failed to provide a reasoned explanation for its 30 percent incentive limit, and as a result, the EEOC removed the incentive sections from the ADA and GINA regulations.…

Continue Reading EEOC proposes new rules on permissible incentives for employer-sponsored wellness programs

On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) released updated and expanded guidance addressing questions related to the COVID-19 pandemic that arise under the Federal Equal Employment Opportunity Laws.  The publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” includes new guidance on the implications of the forthcoming COVID-19 vaccines on a number of federal laws.

The EEOC guidance provides a high-level overview of some of the basic concerns confronting employers as they attempt to navigate the intersection of vaccine necessity and the Americans with Disabilities Act (ADA), the Genetic Information and Nondiscrimination Act (GINA), and Title VII.  While the EEOC asserts that “[t]he EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions,” it also makes clear that employers will have to undertake careful efforts to comply with these statutes as they also seek to comply with public health authority instruction.…

Continue Reading EEOC releases updated and expanded COVID-19 guidance

As we previously posted, the Centers for Disease Control and Prevention (CDC) CDC recently issued guidance on reopening the workplace. In its latest update on June 11, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 Frequently Asked Questions (the Guidance) to provide further guidance on returning employees to the workplace. Notably, the Guidance covers (1) the return of high-risk workers to the workplace, (2) how to properly handle COVID-19-related accommodations requests, and (3) how to appropriately respond to pandemic-related harassment. As we discussed in our last post, employers should be wary of toeing the line on the issues highlighted below, as they may become prevalent in the wave of litigation expected to arise in the wake of the pandemic.

Employers may not involuntarily exclude older or pregnant workers from the workplace

In its updated Guidance, the EEOC cautions that the Age Discrimination in Employment Act (ADEA) – which prohibits discrimination in the workplace against individuals aged 40 and older – does not permit an employer to involuntarily exclude an employee from the workplace based solely on their age, “even if the employer acted for benevolent reasons such as protecting the employee due to a higher risk of severe illness from COVID-19.” The Guidance specifically pertains to employees aged 65 years and older, who are considered by the CDC to be at a higher risk of serious illness due to COVID-19. Moreover, the EEOC has stated that employers may still provide flexible working arrangements for workers aged 65 and older, and that doing so will not be viewed as treating younger workers (ages 40 to 64) less favorably.

Additionally, under Title VII of the Civil Rights Act (Title VII), employers are prohibited from involuntarily excluding from the workplace, furloughing, or placing on leave, pregnant employees, even if the intent behind the decision is to protect the employee’s health and safety.…

Continue Reading EEOC provides updated guidance related to excluding high-risk workers, required accommodations, and pandemic-based harassment

The U.S. Centers for Disease Control and Prevention (CDC) recently released new guidance (the Guidance) and a flowchart (the Flowchart) detailing how states can safely reopen businesses and schools in the wake of the COVID-19 pandemic. The 60-page guidance document covers a wide range of topics, including surveilling, contact tracing, and controlling COVID-19 cases.

The Guidance provides generalized recommendations, while simultaneously cautioning employers to tailor the Guidance based on the state and industry within which the employer operates. For each set of recommendations, the CDC creates a three-step program to safely scale up operations, with Step One requiring the most stringent measures of mitigation and Step Three requiring the least. The Guidance also provides more specific recommendations that highlight additional considerations for reopening mass transit, childcare programs, day camps, restaurants, and bars, as well as businesses that employ workers at high risk for severe illness due to COVID-19.
Continue Reading CDC issues new guidance on reopening the workplace

The Equal Employment Opportunity Commission (EEOC) updated and expanded a Technical Assistance Publication on May 5, 2020, and then again on May 7, 2020, focusing on employer obligations under the Americans with Disabilities Act (ADA) and related laws during the COVID-19 pandemic. The EEOC’s guidance comes as many states are reopening their economies and allowing businesses to admit employees back into the workplace.

The Question-and-Answer format of the updated publication reminds employers of their obligation to continue to provide reasonable accommodations in the workplace, even in the middle of a pandemic. Of particular interest to employers are situations where the worker is already known to have a medical condition that the Centers for Disease Control and Prevention (CDC) has flagged as putting the individual at higher risk for severe illness from COVID-19. The full CDC list is available here, and includes people with moderate to severe asthma, severe obesity, diabetes, and many other impairments. The EEOC’s position regarding the employer’s rights and obligations when returning such individuals to the workplace has two key parts.…

Continue Reading Returning to work during the COVID-19 pandemic: Employer’s rights and obligations to high-risk workers

Imagine you are a human resources professional or in-house employment counsel and you learn that an employee in your organization is seeking a job transfer or other accommodation because with a body weight of almost 600 pounds, he is too overweight to do his present job. What do you do?

A recent decision from the U.S. Court of Appeals for the Seventh Circuit highlights how courts across the country have interpreted the Americans with Disabilities Act (ADA) in workplace situations involving obesity. If a workplace challenge relating to obesity hasn’t happened in your organization yet, it is increasingly likely to happen soon. The Journal of the American Medical Association reports that rates of American adults with obesity have continued to increase over the past decade according to researchers from the Centers for Disease Control and Prevention (CDC). Their findings comport with a trend line dating back to the 1980s. With that trend in mind, let’s examine Richardson v. Chicago Transit Authority, 926 F.3d 881 (7th Cir. 2019).

Mark Richardson worked as a bus driver for 13 years. In September of 2010, weighing nearly 600 pounds, Richardson’s employer required that he undergo a safety assessment following a medical leave. During the assessment, he was unable to perform several safety driving functions (for example, hand-over-hand steering) because of his obesity. Richardson argued under the ADA and related agency regulations and guidance that severe obesity should automatically qualify as an ADA impairment, without having to show any other underlying physiological cause.…

Continue Reading Is extreme obesity a physical characteristic or a disability?