Pappas O'Connor P.C.

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The weather is heating up and so is the labor and employment climate.   The government agencies are vying for publicity in this political climate.  On the front burner was the Department of Labor’s doubling of the minimum salary requirements for the overtime exemption under the FLSA.  Not to be outdone, the EEOC issued new guidance covering the Americans with Disabilities Act and Wellness Plan Incentives. Probably more intrusive is the persuader rule adopted by the NLRB requiring companies to disclose assistance in labor organizing campaigns. 


EEOC Guidance on Reasonable Accommodation under the ADA

The U.S. Equal Employment Opportunity Commission (EEOC) issued a new resource document that addresses the rights of employees with disabilities who seek leave as a reasonable accommodation under the Americans with Disabilities Act of 1990 (ADA).  The document is entitled Employer-Provided Leave and the Americans with Disabilities Act.  The document is worth a read as it provides useful guidance concerning:

  • Equal Access to Leave Under an Employer’s Leave Policies
    • Employees with disabilities must be provided with access to leave on the same basis as all other similarly-situated employees.
  • Leave as a Reasonable Accommodation
    • An employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer even where the leave exceeds FMLA or other leave provided under the employer’s policy.
  • Leave and the Interactive Process Generally
    • Communication During Leave and Prior to Return to Work
      • The interactive process may continue even after an initial request for leave has been granted, particularly if the employee's request did not specify an exact or fairly specific return date, or when the employee requires additional leave beyond that which was originally granted.
      • However, an employer that has granted leave with a fixed return date may not ask the employee to provide periodic updates, although it may reach out to an employee on extended leave to check on the employee's progress.
  • Maximum or “no-fault” leave policies
    • Such policies may have to be modified as a reasonable accommodation for absences related to a disability, unless the employer can show that doing so would cause undue hardship.  Special attention to the form documents used to notify employees of such policies.  The communication must give the opportunity for reasonable accommodation.  Retailer Lowe's agreed to pay $8.6 million and revise its employee leave and attendance policies to resolve EEOC's claims the company refused to consider extended leave as an accommodation for disabled workers and instead fired them.  EEOC v. Lowe's Cos., C.D. Cal., No. 2:16-CV-03041, consent decree signed 5/12/16.  The agreement should signal to employers the EEOC's commitment to enforcing employee leave rights under the Americans with Disabilities Act, which may require employers to grant leave beyond what's required under company policy or federal or state medical leave laws.
  • Return to Work and Reasonable Accommodation
    •  100% Healed Policies
      • An employer will violate the ADA if it requires an employee with a disability to have no medical restrictions -- that is, be "100%" healed or recovered -- if the employee can perform her job with or without reasonable accommodation unless the employer can show providing the needed accommodations would cause an undue hardship.  Also, direct threat is discussed. 
    • Issues Related to the Interactive Process and Return to Work
      • If an employee returns from a leave of absence with restrictions from his or her doctor, the employer may ask why the restrictions are required and how long they may be needed, and it may explore with the employee and his doctor (or other health care professional) possible accommodations that will enable the employee to perform the essential functions of the job consistent with the doctor's recommended limitations.
    • Reassignment
  • Undue Hardship
    • EEOC says indefinite leave (meaning that an employee cannot say whether or when the employee will be able to return to work at all) will constitute an undue hardship and does not have to be provided as a reasonable accommodation.


EEOC Issues Final Rules on Wellness Plan Incentives

Employers can offer limited financial incentives to encourage employees and their spouses to participate in workplace wellness plans and remain in compliance with the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act, the EEOC said in two final rules issued May 16.  Both the ADA and GINA final rules take effect on the first day of the first employer health plan year that begins on or after Jan. 1, 2017.


The agency rules amend existing GINA regulations and create new ADA regulations that detail how employers can offer inducements for wellness plan participation while ensuring they don't coerce employees or their covered spouses to submit to involuntary medical exams or to divulge genetic information, which includes family medical history.


The new rules allow employers to offer employees and their spouses inducements of up to 30 percent of the costs of self-only coverage. The inducement limits apply both to participatory and health-contingent wellness plans. In contrast, the Health Insurance Portability and Accountability Act and the Affordable Care Act and their implementing regulations limit only financial inducements for health-contingent plans and provide for up to 50 percent of a discount on employee insurance costs for tobacco-cessation programs.


EEOC Exposed to Damages

As discussed in our April update, employers were anxious to hear the outcome as to whether or not employers can recover fees when the EEOC brings a case against an employer that is unfounded and is filed without fulfilling the EEOC’s pre-suit obligations.  The Supreme Court issued a ruling effectively stating that an employer may recover attorneys' fees under Title VII when an EEOC suit is dismissed because the agency didn't satisfy pre-suit obligations.  The Equal Employment Opportunity Commission may be ordered to pay an employer's attorneys' fees under Title VII of the 1964 Civil Rights Act when an agency lawsuit is dismissed because the EEOC failed to satisfy its pre-suit requirements, the U.S. Supreme Court has ruled (CRST Van Expedited, Inc. v. EEOC, U.S., No. 14-1375, 5/19/16).


The justices unanimously reversed a U.S. Court of Appeals for the Eighth Circuit decision holding that a district court ruling on the merits of the underlying discrimination claims is required for an employer to be deemed a “prevailing party” able to recover its legal fees.


There's no indication in Title VII that Congress intended that employers defending EEOC suits “should be eligible to recover attorneys' fees only when courts dispose of claims on the merits,” Justice Anthony Kennedy wrote.


OSHA Issues Final Retaliation, Record Keeping Rule

Employers with safety incentive programs that don't meet OSHA requirements can be cited for rule violations under a sweeping new record-keeping final rule the Labor Department announced May 11.


The new rule, which takes effect Aug. 10, also requires about 466,000 work sites to electronically submit annual injury and illness log data to the Occupational Safety and Health Administration, enabling the agency to post on its public website summaries of each establishment's records. The electronic submission requirement starts taking effect in 2017 and will be phased in through 2019.


Two sets of employers will have to comply with the electronic record-keeping provisions; all establishments with 250 or more workers—about 34,000 locations— and another 432,000 establishments in designated high-hazard industries with 20 to 249 workers.

The high-hazard industries include construction, manufacturing, wholesale trade, utilities, agriculture, forestry, fishing, hunting and about 60 smaller industry groups, including grocery and department stores, many types of residential health-care facilities, freight trucking and warehousing.


NLRB institutes Persuader Rule: Big Brother Peers into Employers’ Labor Campaigns

The Labor Department's Office of Labor-Management Standards March 23 unveiled the long-delayed, controversial final rule on disclosure requirements for labor relations consultants helping employers combat workers' attempts to start a union or bargain collectively.

The rule, which was first proposed in 2011, expands the reporting requirements under Section 203(b) of the Labor-Management Reporting and Disclosure Act. That means an employer must disclose hiring a third-party labor relations attorney or other consultant to try to prevent its employees' unionization attempts if the consultant engages in persuader activities that go beyond the plain meaning of advice. It applies even if the consultant has no direct contact with workers.


The rule applies to agreements made after July 1.


Disclosure of Persuader Actions

The rule states that an employer and consultant will have to report to the OLMS when they're engaged in the following:

• planning or conducting employee meetings;

• training supervisors or employer representatives to conduct meetings;

• coordinating or directing the activities of supervisors or employer representatives;

• establishing or facilitating employee committees;

• drafting, revising or providing speeches;

• developing personnel policies designed to persuade employees;

• identifying employees for disciplinary action, reward or other targeting.


The office estimates that up to 87 percent of employers hire consultants to help counter union organizing campaigns. It said, however, that it receives “very few” reports on such activities because the employer characterizes the action as falling under the “advice” exemption.

The final rule requires the employer to fill out forms to disclose the relationship with the hired third-party lawyer or consultant. The DOL estimates that it will cost employers $226.70 to fill out a form each year. The agency estimates that it will receive about 4,200 reports from consultants and almost 2,780 reports from employers annually under the rule.

“The final rule we are publishing is designed to ensure workers have the information they need to make informed decisions about exercising critical workplace rights such as whether to form a union or join a union,” Secretary of Labor Thomas E. Perez said during a media conference call March 22. “Information is power,” he said, noting that more information leads to more informed decisions and strengthens “workplace democracy.”

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Alert: Summer 2018 Labor and Employment Update

Justice Kennedy's retirement will create ideological consequences, but what about in the Labor and Employment arena? How have the recent Supreme Court decisions - Janus & Epic changed the landscape in employment law? Has the NLRB changed its tune regarding handbook policies? These questions and more are in Pappas & O’Connor’s 2018 Summer Labor & Employment Update.

Read More»

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