Posted on May 13th, 2009 by Randy Enochs | No Comments »
Filed under: ., Discrimination, Employee Benefits, HR Issues | 
The Equal Employment Opportunity Commission recently opined that “an employer violated the Americans with Disabilities Act when it required employees to undertake a health risk assessment (“HRA”) as a condition of participating in the employer’s group health plan.” The case the EEOC based its informal opinion letter on involved a county that had implemented an HRA which included answering a short health-related questionnaire, taking a blood pressure test, and providing blood for use in a blood panel screen. Employees declining to participate in the program (and members of their families) were ineligible for coverage under the employer’s self-funded health plan.
The EEOC, in forming their opinion, distinguished between disability-related inquiries and medical examinations that are job-related and consistent with business necessity and voluntary wellness programs:
[O]nce employment begins, an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity. The EEOC determined that requiring all employees to take this HRA that includes disability-related inquiries and medical examinations as a prerequisite for obtaining group health coverage does not appear to be job-related and consistent with business necessity, and therefore it would violate the ADA. …
A wellness program is considered voluntary only if employees are not required to participate and are not penalized for non-participation. With regard to the HRA, an employee’s decision not to participate resulted in the loss of the opportunity to obtain health coverage through the employer’s plan. Thus, even if the HRA could be considered part of such a wellness program, the program would not be voluntary because individuals who do not participate in the assessment are denied a benefit (i.e., they are penalized for non-participation).
Posted on July 21st, 2008 by Tim Eavenson | No Comments »
Filed under: Discrimination, HR Issues |
(HT: LawMemo via Workplace Prof Blog)
In order to prove you have a disability in federal court, you generally have to be able to show 2 things (and this is obviously generalizing a lot):
1. You have some type of impairment.
2. That your impairment substantially limits a ‘major life activity’.
Of course, the laws governing disability discrimination neglect to define either of these terms, which means courts have, over the years, had a lot of fun with them. Especially that second requirement.
As it stands right now, breathing, eating, walking, lifting, caring for ones self all count as “major life activities.” AIDS is a disability for straight women, because it impairs the major life activity of reproduction, but not for gay men, because it doesn’t impair anything but remaining alive, which, interestingly, is not a major life activity. Working is (usually) a major life activity, but working more than 40 hours a week generally isn’t. (How one lawyer convinced a bunch of other lawyers of that is a total mystery to me.) In one case involving a mentally handicapped Wal-Mart applicant, the 11th Circuit said they weren’t sure if “thinking, communicating and social interaction are ‘major life activities’ under the ADA.”
Last month, the D.C. Circuit Court of Appeals made headlines when it held that sleeping was a major life activity. Seriously.
Well, now the D.C. Circuit has done it again: Having sex, apparently, is a major life activity. In Adams v. Rice, the court noted that a woman recovering from cancer, whose symptoms and treatments were messing with her sex life had a valid disability.
All this confusion over what constitutes a disability may be “cleared up” by an amendment before Congress right now, which would define the definition to include anything that “materially restricts” a “major bodily function.” The amendment’s proponents think this language would encompass things like AIDS and cancer automatically. I wonder if we’re just giving the courts two more phrases to ponder over.
Back to sex in D.C. – One of the judges issued a dissent – not arguing that sex isn’t a MLA, thank God – but rather saying that the plaintiff didn’t show any interference with her sex life until long after the alleged discrimination took place. This is quite interesting, and is a sub-issue that will probably outlast any amendment made to the ADA.
Either way, an appellate court has once again explained something most of us took for granted. Employment law is such a great lens through which to view the difference between the judicial system and real life.
Posted on January 16th, 2008 by Tim Eavenson | No Comments »
Filed under: Uncategorized |
Day 2 of Current Employment’s week of law firm employment suits is one of those cases that make you wonder if someone at the plaintiff’s attorney’s office just missed a question on the client questionnaire. Now it’s a cautionary tale, thanks to Legal Blog Watch.
The Story: Theresa Brooks worked for Boston’s Peabody & Arnold for sixteen years. Then, one day in 2005 she didn’t come in. The next day, still no Theresa. Obviously, the firm was a little worried. Brooks had a history of back problems – the firm had given her a special chair, and made some poor chump do her heavy lifting (probably a law clerk).
When Brooks informed the firm that she could no longer work because of her disabling back issues, Peabody decided a little more inquiry might be in order (back problems don’t usually lead to trips to the happiest place on earth), so they sent her for an independent medical exam. But even the independent doctor diagnosed her with spondy-something (does this look like the DSM IV?) and agreed it was disabling. Still, 2&1/2 months after she stopped coming in, Peabody fired Brooks, and she sued.
At trial, Peabody showed a secret spycam video of Brooks… What? Oh, get off your horse – you know your firm’s got one on you, too. Anyway, the video showed Brooks “working in her yard, repeatedly bending over, carrying heavy bundles, walking up and down stairs without difficulty, and walking without a limp or a cane,” according to the court. But we all know that those videos are edited to make people in wheelchairs look like they spend their days surfing and competing in strongman competitions. That doesn’t prove anything, right?
[The video shows that s]he was also physically able to drive forty minutes each way to a casino in Lincoln, Rhode Island, and to sit playing slot machines for three hours, while claiming that her back problems would not permit her to sit at her desk and type.
Oh. Well. Ok.
Advantage Peabody. Somebody greenlight whoever shot that footage – I smell an indie career. The moral of the story for those of us in the biz? Stick with craps, and it’s high table, and let someone else roll.
