No. 1. FMLA/ADA
coordination. Recently
a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit ruled
that an extended medical leave of absence is not a “reasonable” accommodation
within the meaning of the Americans with Disabilities Act (ADA). According to
the Court, a reasonable accommodation has to allow the employee to work.
Because an employee can’t work while on an extended medical leave, leaves are
governed by the Family and Medical Leave Act (as well as employer policies)
rather than the ADA. The court did not rule out the possibility of short or
intermittent time off as an ADA accommodation. An employee signed job
description is critical to winning this battle.
No. 2. Medical
marijuana accommodation.
Not too long ago, the Massachusetts Supreme Judicial Court said that employers
may be required under the state disability rights statute to make reasonable
accommodations for the use of medical marijuana by a cardholder. The court
specifically said that “reasonable accommodation” could include treating a
positive medical marijuana test result as a “negative” and allowing the
applicant or employee to work. Employers who have employees that report to work
in jurisdictions that have: (1) legalized medical marijuana; (2) state has an
anti-discrimination medical marijuana cardholder statute; and (3) state has a
disability rights law, should review their Drug Testing policies and practices
carefully. But if your employees are covered by a federal law that prohibits
all marijuana use, such as U.S. Department of Transportation regulations, then
you can continue to comply with federal law even if you’re in a medical
marijuana/disability rights state. But watch out, because federal law generally
does not require you to fire an employee who tests positive — it usually
requires only that you remove the employee from the position that is covered. Again,
your job description and DOT Policy will govern your options.
No. 3. Pregnancy
accommodation.
Since the Supreme Court’s 2015 decision in Young
v. UPS, employers must make reasonable accommodations for pregnancy and
pregnancy-related conditions. Employers with employees who need pregnancy
accommodations should use what they’ve learned from making reasonable
accommodations under the ADA: specifically, be open to making accommodations,
engage in the interactive process with the employee, feel free to choose the
least expensive/least disruptive accommodation that is still effective (allows
the employee to perform the essential functions of the job), and generally
treat the pregnant employee who needs accommodation the same way you would treat
an employee with a disability or work-related injury. As the courts have
interpreted Title VII’s pregnancy protections, “pregnancy” encompasses much
more than the nine months of gestation. It includes pre-pregnancy (trying to
get pregnant, trying not to get pregnant, contraceptive use, fertility
treatments), gestation (including miscarriages and elective abortions), and
postpartum and lactation.
No. 4. Wellness
programs. This
summer, a federal judge in the District of Columbia struck down the EEOC’s wellness
regulations as they pertained to the ADA and to the Genetic Information
Nondiscrimination Act (GINA). In a nutshell, the regulations allowed employers
to use financial and other incentives (within limits) to get employees to
participate in employer wellness programs. Rather than vacate the regulations,
the judge remanded them to the EEOC to fix. The EEOC now says that it will
issue revised regulations sometime in 2018. Expect those to be more employer
friendly to making healthcare more affordable for employers.
Tommy
Eden is a partner working out of the Constangy, Brooks, Smith & Prophete,
LLP offices in Opelika, AL and can be contacted at teden@constangy.com or
334-246-2901. Parts of this Column were part of a Constangy Blog Post Robin
Shea. Blog at www.alabamaatwork
