College Pays $54,000 To Settle DOJ ADA Lawsuit For Paramedic Program’s Termination of TA With MS

November 7, 2019

Lanier Technical College, a unit of the Technical College System of Georgia, will pay $53,000 in back pay and compensatory damages and revise its policies and procedures to settle a Justice Department lawsuit alleging the College violated the Americans with Disabilities Act (ADA) by terminating along-time College employee based on her multiple sclerosis filed in the Northern District Of Georgia on November 4, 2019.  In addition to this disability discrimination allegation, the Justice Department complaint also alleges the removed the employee from the teaching schedule for an entire school semester, thus reducing her hours and pay to zero, due to her multiple sclerosis after the employee took three days of sick leave one summer.  The lawsuit and its settlement reminds academic health care and other public and private employers about the need to use appropriate care to avoid inappropriate discrimination against individuals  with disabilities in employment and other operations.

The College had employed the terminated employee as a part-time emergency medical technician (EMT) lab assistant for over three years before the events prompting the lawsuit took place.  The essential functions of her job involved assisting instructors in the classroom and in the lab, and perform “check offs” to authorize and certify that the students mastered particular technical competencies (e.g., properly taking blood pressure, starting a patient’s I.V., assessing a patient’s vital signs).  In addition to her employment with the College, the former employee also worked as a paramedic for an unrelated employer.  She continued to work as a full-time paramedic for nearly three years after the College terminated her employment as a part-time lab assistant.

Less than a year into her employment at the College, the former employee was diagnosed with multiple sclerosis (MS) in 2010.   Shortly after her diagnosis the former employee notified among others, notified the Director of the Lanier Paramedicine Technology (PMT) Department, Sam Stone, of her condition and Mr. Stone subsequently discussed her MS and treatment with her over the course of her employment with the College.  According to the Justice Department complaint, the former employee did not require any reasonable accommodations for her disability, remained qualified to perform the essential functions of the part-time lab assistant job, and did so successfully until College discharged her or otherwise altered her compensation, terms, conditions, or privileges of employment.

In 2012, the former employee assisted with classes and labs taught by Instructor Andy Booth.  Instructor Booth managed the work schedule for all the part-time EMT lab assistants who assisted with his classes, including that of the former employee.  This included the ability to remove lab assistants from any shifts they requested.  Director Stone then completed a final review of the semester and approved the schedule and any changes to it.

During the summer of 2012, the former employee had to miss her assigned workdays on two or three occasions due to her MS and its treatment.  She also was on disability leave from her paramedic job for a period during that summer, returning to work full-time in early August.  Following these absences, Instructor Booth on August 30, 2012 sent an email to lab assistants, including the former employee requesting that lab assistants sign up for open shifts on the work schedule, as he was “still short on help.”  The schedule with available shifts was posted for September through December 2012.  The former employee signed up for seven or eight four-hour shifts over the course of the fall semester that same day and emailed Instructor Booth the evening of August 30 to inform him of this.  In her email, she indicated that she was no longer on disability leave from her other job.

Two weeks later, on September 12, 2012, the College removed the former employee from the work schedule for the entire fall semester schedule on the written instructions of Instructor Booth with the approval of Director Stone.   Instructor Booth’s September 12 email instructions to his assistant provided a link to the online work schedule for the lab assistants and stated:  “Any day you see [the former employee], just take her off.”  Director Stone was copied on this email.  That same day, Director Stone replied to Instructor Booth’s email, stating that he had reviewed all of the dates up to December and approved the schedule.  The College knew that, by removing the former employee from the schedule, it was terminating her employment with Lanier.

When the former employee realized that someone removed her from the schedule for the entire semester, she contacted Instructor Booth.  He told the former employee, by text message, that it was Director Stone’s decision and that Director Stone wanted to give the former employee “some time to heal.”  Instructor Booth also stated that Director Stone seemed upset about the former employee missing a few days in the summer due to her MS.  Instructor Booth then directed the former employee to speak to Director Stone.  He did not offer to reinstate her for any of the days she signed up for or for any future dates.

Thereafter, on September 26, 2012, the former employee contacted Director Stone by email.  After telling Director Stone i her email that Instructor Booth said Director Stone was managing the schedule and had wanted to give her “some time to heal,” she reassured him that she appreciated his concern but that she felt she was “OK.”  When Director Stone responded on September 23, he confirmed the correctness of Director Stone’s email and also confirmed that he was concerned with the former employee’s health. He offered to discuss these concerns further with her in private.  He did not offer to reinstate her for any of the days she signed up for or for any future dates.

Later that day, the former employee called Director Stone.  On the call, Director Stone expressed concern about legal and liability issues and whether the former employee was fit to work because of her MS.  He said that he, as the Department Director, had to be concerned about her health and medical issues, because a student could challenge a grade on the basis that her MS made her unfit to evaluate students.   Director Stone also referenced a couple days that the former employee missed work due to her MS during the summer, and stated that she was less reliable than other lab assistants were at that point.  He did not offer to reinstate her for any of the days she signed up for or for any future dates.

Approximately six months later, College removed the former employee from the payroll and changed her payroll status to “terminated.”

On September 26, 2012, the former employee filed a timely charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC), alleging that College terminated her because of her disability in violation of the ADA.  The Justice Department filed the lawsuit after the EEOC referred the former employee’s complaint to it.

Title I of the ADA prohibits covered entities including the College from discriminating against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.  42 U.S.C. § 12112(a); 29 C.F.R. § 1630.4.

The Justice Department complaint against the College charged that the College violated the ADA by discriminating against her on the basis of her disability by:

  • Removing her from the lab assistant work schedule for a semester and reducing her work hours and compensation to zero; and
  • Terminating her on the basis of her disability

As a consequence of these discriminatory actions, the complaint charged the former employee suffered lost earnings, benefits and job advancement opportunities, as well as substantial emotional distress, pain and suffering and other nonpecuniary losses.  The complaint asked the District Court to redress these injuries by:

  • Declaring the College in violation of the Title I of the ADA and its accompanying regulation;
  • Enjoining the College and its agents, employees, successors, and all persons in active concert or participation with it, from engaging in discriminatory employment policies and practices that violate Title I of the ADA;
  • Requiring the College to modify its policies, practices, and procedures as necessary to bring its employment practices into compliance with Title I of the ADA and its implementing   regulation;
  • Ordering the College to train its supervisors and human resource staff regarding the requirements of Title I of the ADA; and
  • Awarding the former employee back pay with interest; the value of any lost benefits with interest; and compensatory damages, including damages for emotional distress, for injuries suffered as a result of Defendant’s failure to comply with the requirements of the ADA;

Under the settlement agreement announced November 7, 2019 by the Justice Department, the College must pay the former employee $53,000 in back pay and compensatory damages, revise its policies and training staff on the ADA to ensure compliance with the ADA, train staff on the ADA, and report to the Justice Department on implementation of the settlement agreement.

Reaching this settlement allowed the College to eliminate its exposure to potentially much greater liability.  In addition to actual lost compensation and benefit damages, a loss at trial could have resulted in a jury award that also ordered the College to pay attorneys’ fees and other costs, interest and exemplary damages of up to $300,000.

For More Information

We hope this update is helpful. For more information about employment discrimination or other labor and employment, compensation, benefits or other related management and compliance concerns or developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.

Solutions Law Press, Inc. invites you receive future updates and join discussions about these and other human resources, health and other employee benefit and patient empowerment concerns by participating and contributing to the discussions in our Solutions Law Press HR & Benefits Update Compliance Update Group and registering for updates on our Solutions Law Press Website..

About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 30+ years of management focused employment, health care, employee benefit and insurance, workforce and other management work, public policy leadership and advocacy, coaching, teachings, and publications including extensive work with businesses on compliance, risk management and defense.

Author of numerous highly regarding publications on disability and other discrimination and other employment, employee benefit, compensation, regulatory compliance and internal controls and other management concerns affecting health care, education, insurance, housing and other operations, Ms. Stamer’s clients include health care, insurance and financial services, educational and other employer and services organizations; employer, union, association, government and other insured and self-insured health and other employee benefit plan sponsors, benefit plans, fiduciaries, administrators, and other plan vendors;   domestic and international public and private health care, education and other community service and care organizations; managed care organizations; insurers, third-party administrative services organizations and other payer organizations; and other private and government organizations and their management leaders.  In addition to her legal and management operations work. Ms. Stamer’s experience includes 30 plus years’ of  legislative and regulatory policy advocacy and drafting, design, compliance and enforcement including testifying to the EBSA Advisory Council on Employee Welfare and Pension Benefit Plans in  on the effectiveness of employee benefit plan disclosures during 2017 hearings on on reducing the burdens and increasing the effectiveness of ERISA mandated disclosures  as well as advice, representation, advocacy and testimony to and before and other work with various foreign governments, Congress, state legislatures, and a multitude of federal, state and local agencies.

Throughout her 30 plus year career, Ms. Stamer has continuously worked with these and other management clients to design, implement, document, administer and defend hiring, performance management, compensation, promotion, demotion, discipline, reduction in force and other workforce, employee benefit, insurance and risk management, health and safety, and other programs, products and solutions, and practices; establish and administer compliance and risk management policies; manage labor-management relations, comply with requirements, investigate and respond to government, accreditation and quality organizations, regulatory and contractual audits, private litigation and other federal and state reviews, investigations and enforcement actions; evaluate and influence legislative and regulatory reforms and other regulatory and public policy advocacy; prepare and present training and discipline;  handle workforce and related change management associated with mergers, acquisitions, reductions in force, re-engineering, and other change management; and a host of other workforce related concerns. Ms. Stamer’s experience in these matters includes supporting these organizations and their leaders on both a real-time, “on demand” basis with crisis preparedness, intervention and response as well as consulting and representing clients on ongoing compliance and risk management; plan and program design; vendor and employee credentialing, selection, contracting, performance management and other dealings; strategic planning; policy, program, product and services development and innovation; mergers, acquisitions, bankruptcy and other crisis and change management; management, and other opportunities and challenges arising in the course of workforce and other operations management to improve performance while managing workforce, compensation and benefits and other legal and operational liability and performance.

A Fellow in the American College of Employee Benefit Counsel and Past Chair of both the ABA Managed Care & Insurance Interest Group and it’s RPTE Employee Benefits and Other  Compensation Group, Ms. Stamer also has leading edge experience in health benefit, health care, health, financial and other plan, program and process design, administration, documentation, contracting, risk management, compliance and related process and systems development, policy and operations; training; legislative and regulatory affairs, and other legal and operational concerns.

A former lead consultant to the Government of Bolivia on its Pension Privatization Project with extensive domestic and international public policy concerns in pensions, healthcare, workforce, immigration, tax, education and other areas, Ms. Stamer has been extensively involved in U.S. federal, state and local health care and other legislative and regulatory reform impacting these concerns throughout her career. Her public policy and regulatory affairs experience encompasses advising and representing domestic and multinational private sector health, insurance, employee benefit, employer, staffing and other outsourced service providers, and other clients in dealings with Congress, state legislatures, and federal, state and local regulators and government entities, as well as providing advice and input to U.S. and foreign government leaders on these and other policy concerns.

Author of leading works on a multitude of labor and employment, compensation and benefits, internal controls and compliance, and risk management matters and a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her thought leadership, experience and advocacy on these and other related concerns by her service in the leadership of the Solutions Law Press, Inc. Coalition for Responsible Health Policy, its PROJECT COPE: Coalition on Patient Empowerment, and a broad range of other professional and civic organizations including North Texas Healthcare Compliance Association, a founding Board Member and past President of the Alliance for Healthcare Excellence, past Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; former Board President of the early childhood development intervention agency, The Richardson Development Center for Children (now Warren Center For Children); current Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, current Vice Chair of Policy for the Life Sciences Committee of the ABA International Section, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, a current Defined Contribution Plan Committee Co-Chair, former Group Chair and Co-Chair of the ABA RPTE Section Employee Benefits Group, past Representative and chair of various committees of ABA Joint Committee on Employee Benefits; an ABA Health Law Coordinating Council representative, former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division, past Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee, a former member of the Board of Directors of the Southwest Benefits Association and others.

For more information about Ms. Stamer or her work, services, experience and involvements, see here or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™ provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc.™ resources here.

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating your profile here.  We also invite you to join the discussion of these and other human resources, health and other employee benefit and patient empowerment concerns by participating and contributing to the discussions in our Health Plan Compliance Group or COPE: Coalition On Patient Empowerment Groupon LinkedIn or Project COPE: Coalition on Patient Empowerment Facebook Page.

NOTICE: These statements and materials are for general informational and purposes only. They do not establish an attorney-client relationship, are not legal advice or an offer or commitment to provide legal advice, and do not serve as a substitute for legal advice. Readers are urged to engage competent legal counsel for consultation and representation in light of the specific facts and circumstances presented in their unique circumstance at any particular time. No comment or statement in this publication is to be construed as legal advice or an admission and its content is not tailored to any particular situation and does not necessarily address all relevant issues. Because the law is rapidly evolving and rapidly evolving rules makes it highly likely that subsequent developments could impact the currency and completeness of this discussion.otherwise notify any participant of any such change, limitation, or other condition that might affect the suitability of reliance upon these materials or information otherwise conveyed in connection with this program. Readers may not rely upon, are solely responsible for, and assume the risk and all liabilities resulting from their use of this publication.

Circular 230 Compliance. The following disclaimer is included to ensure that we comply with U.S. Treasury Department Regulations. Any statements contained herein are not intended or written by the writer to be used, and nothing contained herein can be used by you or any other person, for the purpose of (1) avoiding penalties that may be imposed under federal tax law, or (2) promoting, marketing or recommending to another party any tax-related transaction or matter addressed herein.

©2019 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press, Inc.™ For information about republication or the topic of this article, please contact the author directly. All other rights reserved.


EEOC ADA Suit Against Magnolia Health Highlights US Employer’s Growing Disability Discrimination Risks

August 18, 2015

A new disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) against  Visalia, California -based Magnolia Health Corporation and its affiliates (Magnolia) highlights the need for healthcare industry and other U.S. employers adequacy and defensibility of their practices for offering accommodation to, hiring, screening and other employment practices with respect to persons with actual or perceived disabilities in light of the EEOC’s prioritization of disability discrimination enforcement under the Obama Administration.

In keeping with President Obama’s announced agenda, the EEOC has made disability and other discrimination regulations and enforcement a major priority.  The EEOC’s Strategic Enforcement Plan includes eliminating class-based and other recruitment and hiring practices that discriminate against people with disabilities and other classes protected under federal employment discrimination laws among its top six national priorities.  In furtherance of these priorities, the EEOC and other federal agencies both have expanded regulatory protections for persons with disabilities and significantly stepped up investigation and enforcement of disability discrimination claims against businesses accused or suspected of discriminating against disabled or other persons protected under federal discrimination laws. See e.g., Discrimination Rules Create Risks For Employer Reliance On Injunction Of FMLA Rule On Same-Sex Partners’ Marital Status; EEOC Suit Against Pipe Fitting Business Shows Disability Discrimination Risks For Employers Hiring Vets With PTSD; EEOC Charges Employer Violated ADA By Terminating Employment At FMLA Leave End; Texas Employers Top Target For EEOC Charges; Wal-Mart Settlement Shows ADA Risks When Considering Employee Return To Work Accommodation Requests & Inquiries; Employer Pays $475,000 To Settle ADA Discrimination Lawsuit Challenging Medical Fitness Testing For EMTs, Firefighters & Other Public Safety Workers.

In keeping with this aggressive enforcement agenda, the EEOC’s suit filed August 8, 2015 against Magnolia reflects this enforcement emphasis.  In the suit, the EEOC asks the Federal District Court to award backpay, compensatory and punitive damages on behalf of the class, as well as impose injunctive relief to prevent and address alleged “systemic” practices of disability discrimination in violation of the ADA by Magnolia.

Specifically, the EEOC lawsuit charges Magnolia with engaging since 2012 in systematic discrimination based on disability, a record of disability and perceived disability in violation of the ADA by refusing to hire and denying accommodations with persons disabilities, and ultimately firing individuals that Magnolia regarded as disabled, had a record of a disability or had an actual disability.  The EEOC says Magnolia’s prohibited discriminatory practices included only offering positions to certain applicants under the condition that the applicants pass a medical examination, as well as discharging or revoking job offers when it learned of or received records of prior medical conditions or current medical restrictions.

When announcing the suit, the EEOC made clear it intends the lawsuit to send a message to all U.S. employers.  “Requiring individuals to be free from any need for accommodation is a trend that the EEOC is seeing in our region. Disability discrimination remains a persistent problem that needs more attention by employers,” said Anna Park, regional attorney for EEOC’s Los Angeles District.

Meanwhile, Director for EEOC’s Fresno Local Office Melissa Barrios warned, “Employers must try to accommodate individuals with disabilities by exploring effective ways to allow them to work provided there is no undue hardship.”  Ms. Barrios added, “Employment decisions, such as denying hire or firing, that are made without engaging in that critical interactive process run afoul of the law.”

With the EEOC continuing to emphasize ADA enforcement, U.S. employers should exercise care to ensure that their employment screening, hiring, accommodation and other duties both are properly designed and administered for defensibility under the ADA.   Healthcare or other employers should not presume that the EEOC or the courts automatically to accept as obvious or without question that the nature of their business or a particular position disqualifies an individual or class of individuals with a physical or mental disability, past history of injury or illness or other actual or perceived physical or mental limitation automatically for employment in that position.  Rather, employers making hiring or other employment decisions should be prepared to prove that their organization complies with the ADA in word and in deed by both adopting policies of compliance and ensuring that those policies are appropriately administered in a well-documented fashion so that the documentation.  Employers that decide not to hire an individual with an actual or perceived disability for safety or other reasons should be prepared in the event of a disability discrimination challenge to show that hiring or other employment decisions with respect to individuals with actual, perceived or records of disabilities were made without impermissible disability discrimination. An employer determining that an individual with an actual, perceived or record of disability should be prepared to show that this determination was made either without regard to the individual’s disability or that the individual does not qualify even with reasonable accommodation, that accommodation would be unreasonably costly, or accommodation could not eliminate the safety or other proven barriers to qualification of the individual for the position.  Businesses and business leaders concerned with managing these and other disability discrimination risks should keep in mind that evidentiary rules make it important that businesses ensure that in addition to maintaining appropriate written policies, they also conduct their employment activities appropriately to minimize the creation of evidence that could create or support discrimination claims as well as documentation to support the employer’s planned defenses.

For Legal or Consulting Advice, Legal Representation, Training Or More Information

If you need help responding to these new or other workforce, benefits and compensation, performance and risk management, compliance, enforcement or management concerns, help updating or defending your workforce or employee benefit policies or practices, or other related assistance, the author of this update, attorney Cynthia Marcotte Stamer may be able to help.

Recognized as a “Top” attorney in employee benefits, labor and employment and health care law extensively involved in health and other employee benefit and human resources policy and program design and administration representation and advocacy throughout her career, Cynthia Marcotte Stamer is a practicing attorney and Managing Shareholder of Cynthia Marcotte Stamer, P.C., a member of Stamer│Chadwick │Soefje PLLC, author, pubic speaker, management policy advocate and industry thought leader with more than 27 years’ experience practicing at the forefront of employee benefits and human resources law.

A Fellow in the American College of Employee Benefit Counsel, past Chair and current Welfare Benefit Committee Co-Chair of the American Bar Association (ABA) RPTE Section Employee Benefits Group, Vice Chair of the ABA Tort & Insurance Practice Section Employee Benefits Committee, former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group,  an ABA Joint Committee on Employee Benefits Council Representative and Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms.Stamer is recognized nationally and internationally for her practical and creative insights and leadership on health and other employee benefit, human resources and insurance matters and policy.

Ms. Stamer helps management manage. Ms. Stamer’s legal and management consulting work throughout her 27 plus year career has focused on helping organizations and their management use the law and process to manage people, process, compliance, operations and risk. Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer helps public and private, domestic and international businesses, governments, and other organizations and their leaders manage their employees, vendors and suppliers, and other workforce members, customers and other’ performance, compliance, compensation and benefits, operations, risks and liabilities, as well as to prevent, stabilize and cleanup workforce and other legal and operational crises large and small that arise in the course of operations.

Ms. Stamer works with businesses and their management, employee benefit plans, governments and other organizations deal with all aspects of human resources and workforce management operations and compliance.  She supports her clients both on a real time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.  Well known for her extensive work with health care, insurance and other highly regulated entities on corporate compliance, internal controls and risk management, her clients range from highly regulated entities like employers, contractors and their employee benefit plans, their sponsors, management, administrators, insurers, fiduciaries and advisors, technology and data service providers, health care, managed care and insurance, financial services, government contractors and government entities, as well as retail, manufacturing, construction, consulting and a host of other domestic and international businesses of all types and sizes.  Common engagements include internal and external workforce hiring, management, training, performance management, compliance and administration, discipline and termination, and other aspects of workforce management including employment and outsourced services contracting and enforcement, sentencing guidelines and other compliance plan, policy and program development, administration, and defense, performance management, wage and hour and other compensation and benefits, reengineering and other change management, internal controls, compliance and risk management, communications and training, worker classification, tax and payroll, investigations, crisis preparedness and response, government relations, safety, government contracting and audits, litigation and other enforcement, and other concerns.

Ms. Stamer uses her deep and highly specialized health, insurance, labor and employment and other knowledge and experience to help employers and other employee benefit plan sponsors; health, pension and other employee benefit plans, their fiduciaries, administrators and service providers, insurers, and others design legally compliant, effective compensation, health and other welfare benefit and insurance, severance, pension and deferred compensation, private exchanges, cafeteria plan and other employee benefit, fringe benefit, salary and hourly compensation, bonus and other incentive compensation and related programs, products and arrangements. She is particularly recognized for her leading edge work, thought leadership and knowledgeable advice and representation on the design, documentation, administration, regulation and defense of a diverse range of self-insured and insured health and welfare benefit plans including private exchange and other health benefit choices, health care reimbursement and other “defined contribution” limited benefit, 24-hour and other occupational and non-occupational injury and accident, ex-patriate and medical tourism, onsite medical, wellness and other medical plans and insurance benefit programs as well as a diverse range of other qualified and nonqualified retirement and deferred compensation, severance and other employee benefits and compensation, insurance and savings plans, programs, products, services and activities.  As a key element of this work, Ms. Stamer works closely with employer and other plan sponsors, insurance and financial services companies, plan fiduciaries, administrators, and vendors and others to design, administer and defend effective legally defensible employee benefits and compensation practices, programs, products and technology. She also continuously helps employers, insurers, administrative and other service providers, their officers, directors and others to manage fiduciary and other risks of sponsorship or involvement with these and other benefit and compensation arrangements and to defend and mitigate liability and other risks from benefit and liability claims including fiduciary, benefit and other claims, audits, and litigation brought by the Labor Department, IRS, HHS, participants and beneficiaries, service providers, and others.  She also assists debtors, creditors, bankruptcy trustees and others assess, manage and resolve labor and employment, employee benefits and insurance, payroll and other compensation related concerns arising from reductions in force or other terminations, mergers, acquisitions, bankruptcies and other business transactions including extensive experience with multiple, high-profile large scale bankruptcies resulting in ERISA, tax, corporate and securities and other litigation or enforcement actions.

Ms. Stamer also is deeply involved in helping to influence the Affordable Care Act and other health care, pension, social security, workforce, insurance and other policies critical to the workforce, benefits, and compensation practices and other key aspects of a broad range of businesses and their operations.  She both helps her clients respond to and resolve emerging regulations and laws, government investigations and enforcement actions and helps them shape the rules through dealings with Congress and other legislatures, regulators and government officials domestically and internationally.  A former lead consultant to the Government of Bolivia on its Social Security reform law and most recognized for her leadership on U.S. health and pension, wage and hour, tax, education and immigration policy reform, Ms. Stamer works with U.S. and foreign businesses, governments, trade associations, and others on workforce, social security and severance, health care, immigration, privacy and data security, tax, ethics and other laws and regulations. Founder and Executive Director of the Coalition for Responsible Healthcare Policy and its PROJECT COPE: the Coalition on Patient Empowerment and a Fellow in the American Bar Foundation and State Bar of Texas, Ms. Stamer annually leads the Joint Committee on Employee Benefits (JCEB) HHS Office of Civil Rights agency meeting and other JCEB agency meetings.  She also works as a policy advisor and advocate to many business, professional and civic organizations.

Author of the thousands of publications and workshops these and other employment, employee benefits, health care, insurance, workforce and other management matters, Ms. Stamer also is a highly sought out speaker and industry thought leader known for empowering audiences and readers. Ms. Stamer’s insights on employee benefits, insurance, health care and workforce matters in Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, Modern Healthcare, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, InsuranceThoughtLeadership.com and many other prominent publications. Ms. Stamer also regularly serves on the faculty and planning committees for symposia of LexisNexis, the American Bar Association, ALIABA, the Society of Employee Benefits Administrators, the American Law Institute, ISSA, HIMMs, and many other prominent educational and training organizations and conducts training and speaks on these and other management, compliance and public policy concerns.

Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer presently serves on an American Bar Association (ABA) Joint Committee on Employee Benefits Council representative; Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the ABA RPTE Employee Benefits & Other Compensation Committee, its current Welfare Benefit Plans Committee Co-Chair, on its Substantive Groups & Committee and its incoming Defined Contribution Plan Committee Chair and Practice Management Vice Chair; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; current Vice Chair of the ABA TIPS Employee Benefit Committee; the former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division; on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications.  She also previously served as a founding Board Member and President of the Alliance for Healthcare Excellence, as a Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; the Board President of the early childhood development intervention agency, The Richardson Development Center for Children; Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a member of the Board of Directors of the Southwest Benefits Association. For additional information about Ms. Stamer, see www.cynthiastamer.com, or www.stamerchadwicksoefje.com   the member of contact Ms. Stamer via email here or via telephone to (469) 767-8872.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™  provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press, Inc.™ resources at www.solutionslawpress.com including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information including your preferred e-mail by creating or updating your profile at here.

©2015 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press. All other rights reserved.


Hospital To Pay $75K For Refusing To Hire Disabled Child Care Worker

March 10, 2014

Osceola Community Hospital Refused To Hire Child Care Worker With Cerebral Palsy Who Had Worked As Volunteer

Osceola Community Hospital in Sibley, Iowa will pay $75,000 and furnish other relief to settle an Americans With Disabilities Act (ADA) disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) for its refusal to hire a child care worker with cerebral palsy.  The case shows both the need for health care and other employers to have sufficient evidence to support decisions not to hire disabled workers for safety reasons as well as the potential risks that hospitals or other face when refusing to hire disabled individuals who have been allowed to work as volunteers in their organizations.

The EEOC charged a day care center operated by the hospital, Bright Beginnings of Osceola County, unlawfully failed to hire a volunteer employee into a paid position for which she was qualified because of her cerebral palsy.  Although the woman who brought the charge of discrimination against the hospital already volunteered in the day care center and held a job driving a school bus, the EEOC’s investigation revealed the county refused to hire her into a paying job in the center out of an unfounded fear that her disability meant that she could not safely care for the children.

Judge Mark Bennett entered a consent decree on February, 28, 2014, resolving the brought by the EEOC in EEOC v. Osceola Community Hospital d/b/a Bright Beginnings of Osceola County, Civil Action No. 5:12-cv-4087 (N.D. Iowa, Sept. 26, 2012 that orders Osceola Community Hospital to pay $75,000 to the discrimination victim.  The decree also requires the hospital to institute a policy prohibiting discrimination on the basis of disability and to distribute the policy to all of its employees.  The hospital also must train its employees and report regularly to the EEOC on its compliance with the ADA.

The lawsuit provides another example to health care and other employers of their growing exposure to disability discrimination claims under the ADA.  The EEOC action and lawsuit highlights the importance of employers ensuring that decisions to refuse to hire disabled workers for safety reasons are based upon appropriate evidence of actual safety concerns that prevent the worker from safely performing the assigned duties with or without reasonable accommodation.

The fact that the worker in this case had in fact worked as a volunteer likely created additional challenges in defending the decision.  The use of volunteer workers in health industry businesses is a common practice that may justify special care before those organizations deny employment to a former volunteer on the basis of safety concerns associated with the disabilities of the applicant or worker both to document the reasonable basis of the safety concern and that the concern could not be adequately resolved through reasonable accommodation.

Eenforcing federal discrimination laws is a high priority of the Obama Administration. The Departments of Labor, Health & Human Services, Education, Justice, Housing & Urban Development, and others all have both increased enforcement, audits and public outreach, as well as have sought or are proposing tighter regulations.

The expanding applicability of nondiscrimination rules coupled with the wave of new policies and regulatory and enforcement actions should alert private businesses and state and local government agencies of the need to exercise special care to prepare to defend their actions against potential disability or other Civil Rights discrimination challenges under employment and a broad range of other laws.

Health care and organizations, public or private, government contractor or not, should act to ensure both that their organizations, their policies, and people in form and in action understand and comply with current disability discrimination laws and that these compliance activities are well-documented to help defend against potential charges or other challenges.  Because of changing regulatory and enforcement trends, organizations and their leaders should avoid assuming the adequacy of current compliance and risk management. Most organization should reevaluate their assessments concerning whether their organization is a federal government contractor or subcontractor to minimize the risk of overlooking critical obligations.

Many organizations need to update their understanding, policies and practices in light of tightening rules and enforcement. The scope and applicability of federal nondiscrimination and other laws have been expanded or modified in recent years by the differences in perspectives of the Obama Administration from the Bush Administration, as well as statutory, regulatory, judicial precedent and enforcement changes.  In addition, all organization should conduct well-documented periodic training and take other actions to monitor and enforce compliance by staff, contractors and others with whom they do business.

For Help With Compliance & Risk Management and Defense

If you need help in auditing or assessing, updating or defending your organization’s compliance, risk manage or other  internal controls practices or actions, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping private and governmental organizations and their management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; schools and other governmental agencies and others design, administer and defend innovative compliance, risk management, workforce, compensation, employee benefit, privacy, procurement and other management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend union-management relations, wage and hour, discrimination and other labor and employment laws, procurement, conflict of interest, discrimination management, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions.  The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, reengineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters.  She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

Other Resources

If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at ww.solutionslawpress.com.

THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS.  ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

©2014 Cynthia Marcotte Stamer.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.


Government Contractors To Face Hiring “Targets” for Vets & Disabled Under Impending Rules.

August 27, 2013

U.S. employers Federal government contractors and subcontractors will be required to set a hiring goal of having 7 percent of their workforces be people with disabilities and hiring goals for veterans, among other requirements when the Department of Labor Office of Federal Contract Compliance Programs (OFCCP) moves forward in upcoming weeks to finalize proposed changes to OFCCP regulations originally proposed on December 9.  Coupled with other enforcement and regulatory activism by the Administration, the plan announced today by Vice President Biden to move forward to finalize the new hiring target requirements will further heighten the need for government contractors as well as other U.S. businesses to guard against rising disability, veterans and other discrimination law exposures.  Employers that are government contractors should review the proposed regulations to determine its anticipated effect.  Employers concerned about the proposed tightening of hiring standards or other provisions of the proposed regulation also should consider commenting on the proposed regulation.  Meanwhile, all employers should heed the proposed regulation as yet another sign of the heightening of their exposures and responsibilities to disabled and other workers protected by federal discrimination laws under the Obama Administration.

Tighter Disability & Veterans Discrimination Rules For Government Contractors Coming

According to today’s announcement by Vice President Biden, the Administration plans to finalize a new Department of Labor Office of Federal Contract Compliance Programs (OFCCP) VEVRAA Rule and Rehabilitation Act Rule  in the Federal Register “soon” and will take effect 180 days after publication.   The action will finalize plans to adopt these rules that the Administration previously announced last December, reported on by Solutions Law Press, Inc. in DOL Plans To Tighten Employment Protections For Disabled Veterans & Other Disabled Employees Signals Need For Businesses To Tighten Defenses.

The new OFCCP’s rules will raise the affirmative action requirements for federal contractors and subcontractors to ensure equal employment opportunities for qualified workers with disabilities and veterans.

The proposed regulatory changes detail specific actions contractors must take in the areas of recruitment, training, record keeping and policy dissemination — similar to those that have long been required to promote workplace equality for women and minorities. In addition, the rule would clarify OFCCP’s expectations for contractors by providing specific guidance on how to comply with the law.

Specifically, the two new rules for the first time require federal government contractors to establish “hiring benchmarks” that the Administration intends to use to provide “real accountability” by measuring federal contractors’ progress toward achieving equal opportunity for people with disabilities and protected veterans.

  • The VEVRAA rule requires contractors to establish an annual hiring benchmark, either based on the national percentage of veterans in the workforce (currently 8%), or based on the best available data and factors unique to their establishments.
  • The Section 503 rule establishes an aspirational 7% utilization goal for the employment of individuals with disabilities.

Since taking office, the Obama Administration already has stepped up enforcement and oversight of federal laws prohibiting discrimination against veterans and individuals with disabilities.  The new requirements for benchmarking and reporting required by these new rules will make it easier for OFCCP to identify and target for audit or enforcement government contractors whose lower statistical hiring of veterans and other disabled workers.  Since government contractors and subcontractors can expect greater exposure to contract and compliance audits, enforcement and other risks to rise when the new rules take effect,  all government contractors and subcontractors are encouraged to evaluate their current and historical hiring practices and compliance in light of these new rules and begin preparing their strategy for both commenting on the anticipated rules, and minimizing potential risks and exposures within the scope of attorney client privilege.

Among other things, the proposed rule would:

  • Set a 7 percent hiring goal for the employment of individuals with disabilities, the highest level ever;
  • Require enhanced documentation and recordkeeping of requests and processing of requests for reasonable accommodation and other matters;
  • Provide for annual self-reviews of employers’ recruitment and outreach efforts; and
  • Add a new requirement for contractors to list job openings to increase their pools of qualified applicants.

These new rules would expand already significant nondiscrimination, affirmative action and recordkeeping requirements applicable to government contractors.  The expansion of these rules comes as the reach of federal employment discrimination laws has expanded to include many employers not historically covered by these requirements due to participation in Stimulus Bill or other government-funded programs which with broader than historically applicable affirmative action requirements.  Settlement of OFCCP Employment Discrimination Charge Reminder To ARRA, Other Government Contractors Of Heightened Enforcement Risks.

Meanwhile, enforcing federal discrimination laws is a high priority of the Obama Administration. The Departments of Labor, Health & Human Services, Education, Justice, Housing & Urban Development, and others all have both increased enforcement, audits and public outreach, as well as have sought or are proposing tighter regulations protecting the disabled, veterans, and others.  See, e.g. New Obama Administration Affirmative Action Guidance Highlights Organization’s Need To Tighten Nondiscrimination Practices; HR Key Player In Managing Rising Risk of Disability, Other Discrimination Suits Under Obama Administration Justice Department;  Employer Assistance and Resource Network Offers Free Webinars For Employers During October In Honor of Disability Employment Awareness Month on Thursdays in October from 2:00 – 2:30 p.m. Eastern Time. Topics will include Employer Preparedness to Include Veterans with Disabilities; 4/19 Deadline For Comments On Proposed Rules For Selecting State Employment Service Delivery Systems Providers For Veterans; Justice Department Charges Employer, Pension Plan With Violating USERRA Reemployment Rights; Tighten Employment Disability Risk Management As Obama Declares 12/10 National Disability Employment Awareness Month; Employer Pays $475,000 To Settle ADA Discrimination Lawsuit Challenging Medical Fitness Testing For EMTs, Firefighters & Other Public Safety Worker’s; Obama’s Reaffirms Commitment Prosecute Disability Discrimination To Mark Omlstead Anniversary.

The expanding applicability of nondiscrimination rules coupled with the wave of new policies and regulatory and enforcement actions should alert private businesses and state and local government agencies of the need to exercise special care to prepare to defend their actions against potential disability or other Civil Rights discrimination challenges under employment and a broad range of other laws.

Business Should Get Serious About Discrimination Risk Management

Government contractors and subcontractors as well as other employers should review these rules to assess their potential impact, as well as evaluate the adequacy of already existing practices and documentation with discrimination and other laws with the help of qualified legal counsel experienced with advising government contractors and other businesses about these and related non-discrimination rules within the scope of attorney-client privilege.

In anticipation of these activities,  these and other employers may want to participate in one of the following “introductory webinars” on the new rules this week (with repeats in September) to provide overviews of the key points of the rules

  • OFCCP Webinars on the VEVRAA Final Rule on August 29, 2013 at 2:00 p.m. (Eastern) – Register or September 11, 2013 at 2:00 p.m. (Eastern) – Register; and
  • OFCCP Webinars on the Section 503 Final on August 30, 2013 at 2:00 p.m. (Eastern) – Register or September 18, 2013 at 2:00 p.m. (Eastern) – Register.

All organizations, public or private, government contractor or not, should act to ensure both that their organizations, their policies, and people in form and in action understand and comply with current federal nondiscrimination laws and that these compliance activities are well-documented to help defend against potential charges or other challenges.  Because of changing regulatory and enforcement trends, organizations and their leaders should avoid assuming the adequacy of current compliance and risk management. Most organization should reevaluate their assessments about whether their organization is a federal government contractor or subcontractor to minimize the risk of overlooking critical obligations.

Many organizations need to update their understanding, policies and practices in light of tightening rules and enforcement. The scope and applicability of federal nondiscrimination and other laws has grown and evolved in recent years by the differences in perspectives of the Obama Administration from the Bush Administration, as well as statutory, regulatory, judicial precedent and enforcement changes.  In addition, all organization should conduct well-documented periodic training and take other actions to monitor and enforce compliance by staff, contractors and others with whom they do business.

For Help With Compliance & Risk Management and Defense

If you need help in auditing or assessing, updating or defending your organization’s compliance, risk manage or other  internal controls practices or actions, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping private and governmental organizations and their management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; schools and other governmental agencies and others design, administer and defend innovative compliance, risk management, workforce, compensation, employee benefit, privacy, procurement and other management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend union-management relations, wage and hour, discrimination and other labor and employment laws, procurement, conflict of interest, discrimination management, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions.  The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, re-engineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters.  She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to reach other publications by Ms. Stamer see here or contact Ms. Stamer directly.

Other Resources

If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources available at ww.solutionslawpress.com.

THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS.  ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

©2011 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.


Agencies Release ACA Wellness, Adult Pre-Existing Condition, Essential Health Benefits Guidance; Briefing Planned

November 20, 2012

Employers and other health plan sponsors, insurers, and their administrators and service providers should consider the advisability of updating health plan cost projections, plan documents and procedures, communications and other practices in response to new and proposed guidance interpreting federal health plan rules under the Patient Protection and Affordable Care Act (ACA) released today (November 20, 2012).

Solutions Law Press, Inc. plans will host a webex executive study group briefing to update its members and other interested persons on this new and proposed guidance on Tuesday, November 27, 2012 at Noon Central Time.  Interested persons wishing details about registration for this briefing should send an e-mail here.

Guidance Released Today

Earlier today, the Departments of Labor and Health & Human Services issued guidance implementing ACA provisions that make it illegal for insurance companies to discriminate against people with pre-existing conditions, as well as guidance impacting wellness and disease management programs and the “essential health benefits” definition that plays  a key role in defining the benefits package mandates applicable to exchange and other health plans and policies required to comply with ACA’s mandates.  This guidance includes:

  • A proposed rule that, beginning in 2014, prohibits health insurance companies from discriminating against individuals because of a pre-existing or chronic condition. Under the rule, insurance companies would be allowed to vary premiums within limits, only based on age, tobacco use, family size and geography. Health insurance companies would be prohibited from denying coverage to any American because of a pre-existing condition or from charging higher premiums to certain enrollees because of their current or past health problems, gender, occupation, and small employer size or industry that the agencies intend to ensure that people for whom coverage would otherwise be unaffordable and young adults have access to a catastrophic coverage plan in the individual market. See HHS Proposed Regulation – Health Insurance Market Rules available here;
  • A proposed rule outlining policies and standards for coverage of essential health benefits, while giving states more flexibility to implement the Affordable Care Act. Essential health benefits are a core set of benefits that would give consumers a consistent way to compare health plans in the individual and small group markets. A companion letter on the flexibility in implementing the essential health benefits in Medicaid was also sent to states. Related to Essential Health Benefits, Actuarial Value, and Accreditation available here; and
  • A proposed rule implementing and expanding employment-based wellness programs that the agencies intend to promote health and help control health care spending, while prohibiting what the agencies consider unfair underwriting practices that impermissibly discriminate based on health status.  See Proposed regulations here; Study available here; Fact Sheet available here.

With this guidance impacting key plan design and cost concerns, employers and other health plan sponsors, plan fiduciaries and administrators, insurers and their vendors will need to act quickly to evaluate the potential implications of this guidance in light of already existing rules and enforcement positions, their plan design and costs, and market and other factors.

Today’s Guidance Just Tip of Iceberg

The guidance published today is the first in an expected deluge of regulatory pronouncements that HHS, DOL, the Internal Revenue Service and state insurance agencies are expected to issue as the rush to finalize arrangements and guidance governing the implementation and enforcement of the ACA health care reforms scheduled to take effect and to tweek guidance on provisions already effective under the law.  This guidance adds to the extensive list of previously issued guidance previously published by the Agencies since Congress passed ACA.  With the election behind the US and the Supreme Court having rejected initial challenges by businesses and individuals to the employer and individual mandates last Summer, employers and insurers now must get cracking to update their programs and cost estimates to comply with both existing and new guidance while keeping a close eye out for potential changes to ACA or other federal or state health coverage laws as the new Congress is expected to continue to discuss refinements or other changes when the new Congress begins work in January 2013. 

What Should Employers Do To Cope With These & Other Health Plan Mandates?

Facing the operational and financial challenges of meeting these mandates, many business leaders continue report significant concern about what they should do to respond to these requirements.  For some practical steps that businesses confronting these issues should take to cope with ACA and other health plan responsibilities, check out the “12 Steps Every Employer With A Health Plan Should Do Now” article by Cynthia Marcotte Stamer in the October 26, 2012 online edition of Texas CEO Magazine. To read the full article, see here.

Clearly in light of the new guidance, employers, insurers, health plan fiduciaries and their service providers need to act quickly to familiarize themselves with the guidance and make any need adjustments to their plans, communications, practices and budgets warranted by the new guidance and remain vigilent for and prepared to do the same with other guidance and reform proposals as it is released. 

Beyond responding to the new guidance and other future developments, most health plan sponsors, insurers, administrators and other fiduciaries, and their vendors also should consider conducting this specific analysis and update of their health benefit programs in the context of a broader strategy. 

In her 12-Steps Article, Ms. Stamer writes, “While most employers and insurers of employment-based group health plans view with great concern radically expanded health plan responsibilities taking effect in 2014, many are failing to take steps critical to manage exposures and costs already arising from the Affordable Care Act (ACA) and other federal health plan regulations.” 

In the article, Ms Stamer discusses the following 12 steps that she suggests most businesses consider to help catch up with current responsibilities and to help their business manage future costs and responsibilities:

  1. Know The Cast Of Characters & What Hat(s) They Wear
  2. Know What Rules Apply, and How They Affect a Group Health Plan
  3. Review and Update Health Plan Documents to Meet Requirements and Manage Exposure
  4. Update the Plan For Changing Compliance Requirements and Enhanced Defensibility
  5. Consistency Matters: Build Good Plan Design, Documentation and Processes, and Follow Them
  6. Ensure the Correct Party Carefully Communicates About Coverage and Claims in a Compliant, Timely, Prudent, Provable Manner
  7. Prepare For ACA’s Expanded Data Gathering and Reporting Requirements
  8. Select, Contract and Manage Vendors With Care
  9. Help Plan Members Build Their Health Care Coping Skills With Training and Supportive Tools
  10. Pack The Parachute and Locate The Nearest Exit Doors
  11. Get Moving On Compliance and Risk Management Issues
  12. Provide Input On Affordable Care Act Rules

For Help or More Information

If you need help reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices to respond to emerging health plan regulations, monitoring or commenting on these rules, defending your health plan or its administration, or other health or employee benefit, human resources or risk management concerns, please contact the author of this update, Cynthia Marcotte Stamer.

About Ms. Stamer

A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 24 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters. 

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals.  A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials concerning regulatory, investigatory or enforcement concerns. 

Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations.   She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications.   You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and registerto receive future updates about developments on these and other concerns  see here or contact Ms. Stamer via telephone at 469.767.8872 or via e-mail to  cstamer@solutionslawyer.net.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources at www.solutionslawpress.com including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information here.   

©2012 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.


12 Steps Every Employer With A Health Plan Should Do Now No Matter Who Wins the Election

October 29, 2012

Business leaders concerned about what to do to manage health benefit costs, responsibilities and liabilities over the next year and to position to cope with impending shifts in the health plan regulatory landscape ahead should check out the “12 Steps Every Employer With A Health Plan Should Do Now” article by Cynthia Marcotte Stamer in the October 26, 2012 online edition of Texas CEO Magazine.

Nationally recognized for quarter century of work advising businesses and governments about health benefit and other employee benefits and human resources matters, Ms. Stamer says regardless of who wins the Presidential election next week, employers need to get moving to deal with current health plan obligations and exposures and brace for new future challenges.

Ms. Stamer writes, “While most employers and insurers of employment-based group health plans view with great concern radically expanded health plan responsibilities taking effect in 2014, many are failing to take steps critical to manage exposures and costs already arising from the Affordable Care Act (ACA) and other federal health plan regulations.” 

In the article, Ms Stamer discusses the following 12 steps that she suggests most businesses consider to help catch up with current responsibilities and to help position their business to anticipate and manage future costs and responsibilities:

  1. Know The Cast Of Characters & What Hat(s) They Wear
  2. Know What Rules Apply, and How They Affect a Group Health Plan
  3. Review and Update Health Plan Documents to Meet Requirements and Manage Exposure
  4. Update the Plan For Changing Compliance Requirements and Enhanced Defensibility
  5. Consistency Matters: Build Good Plan Design, Documentation and Processes, and Follow Them
  6. Ensure the Correct Party Carefully Communicates About Coverage and Claims in a Compliant, Timely, Prudent, Provable Manner
  7. Prepare For ACA’s Expanded Data Gathering and Reporting Requirements
  8. Select, Contract and Manage Vendors With Care
  9. Help Plan Members Build Their Health Care Coping Skills With Training and Supportive Tools
  10. Pack The Parachute and Locate The Nearest Exit Doors
  11. Get Moving On Compliance and Risk Management Issues
  12. Provide Input On Affordable Care Act Rules

For Help or More Information

If you need help reviewing and updating, administering or defending your group health or other employee benefit, human resources, insurance, health care matters or related documents or practices to respond to emerging health plan regulations, monitoring or commenting on these rules, defending your health plan or its administration, or other health or employee benefit, human resources or risk management concerns, please contact the author of this update, Cynthia Marcotte Stamer. To read the full article, see here. To learn more, check out some of Ms. Stamer’s upcoming speaking engagements, her many publications or contact Ms. Stamer directly at (469) 767-8872.

About Ms. Stamer

A Fellow in the American College of Employee Benefit Council, immediate past Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Group and current Co-Chair of its Welfare Benefit Committee, Vice-Chair of the ABA TIPS Employee Benefits Committee, a council member of the ABA Joint Committee on Employee Benefits, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is recognized, internationally, nationally and locally for her more than 24 years of work, advocacy, education and publications on cutting edge health and managed care, employee benefit, human resources and related workforce, insurance and financial services, and health care matters. 

A board certified labor and employment attorney widely known for her extensive and creative knowledge and experienced with these and other employment, employee benefit and compensation matters, Ms. Stamer continuously advises and assists employers, employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators, service providers, insurers and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend medical and other welfare benefit, qualified and non-qualified deferred compensation and retirement, severance and other employee benefit, compensation, and human resources, management and other programs and practices tailored to the client’s human resources, employee benefits or other management goals.  A primary drafter of the Bolivian Social Security pension privatization law, Ms. Stamer also works extensively with management, service provider and other clients to monitor legislative and regulatory developments and to deal with Congressional and state legislators, regulators, and enforcement officials concerning regulatory, investigatory or enforcement concerns. 

Recognized in Who’s Who In American Professionals and both an American Bar Association (ABA) and a State Bar of Texas Fellow, Ms. Stamer serves on the Editorial Advisory Board of Employee Benefits News, the editor and publisher of Solutions Law Press HR & Benefits Update and other Solutions Law Press Publications, and active in a multitude of other employee benefits, human resources and other professional and civic organizations.   She also is a widely published author and highly regarded speaker on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, Modern and many other national and local publications.   You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and registerto receive future updates about developments on these and other concerns  see here or contact Ms. Stamer via telephone at 469.767.8872 or via e-mail to  cstamer@solutionslawyer.net.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources at www.solutionslawpress.com including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information here.   

©2012 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.


NLRB’s Nailing of Bel Air Hotel Reminder RIFs, Other Reengineering & Transactions Impacting Workforce Requirement Proper Risk Management

October 5, 2012

Severance Deals Get Hotel Bel-Air Nailed By NLRB For Labor Law Violations

A National Labor Relations Board (NLRB) decision that nails Hotel Bel-Air (Hotel) for offering severance packages to unionized workers highlights one of a range of potentially costly missteps that businesses conducting reductions in force or other re-engineering risk if they fail to properly understand and manage legal requirements when designing and implementing the change.

Since labor and other workforce-related risks are long-standing, some businesses, their leaders and consultants may be tempted to assume that prior experience means these are handled. The fact specific nature of the risks and changing rules and enforcement, however, makes it critical not to be over-confident. Legal and operational mismanagement of these risks can disrupt achievement of the purpose of the change and add significant added cost and exposure for the business and its management. Proper use of qualified legal counsel as part of the process is important both to help identify and properly manage risk and to leverage attorney-client privilege to help shield sensitive communications in the planning and implementation of these activities from discovery.

Employer’s Obligations To Negotiate & Deal With Union

Once a union is recognized as the certified representative of employees in a workplace, the National Labor Relations Act (NLRA) generally prohibits the employer from unilaterally changing term and conditions of employment or from going around the union to bargain directly with employees over layoffs, the effects of layoffs and other material terms and conditions of employment. As part of this responsibility, the NLRA and other federal and state laws generally require that employers provide notification to the union of planned reductions in force, plant closings or other operational changes that might impact the workforce and bargain in good faith with the union before conducting layoffs, or offering or making in work rules, compensation, severance or other benefits or other terms or conditions of employment.

In general, an employer’s duty to bargain with a union generally also continues to apply when the collective bargaining agreement between the union and the employer expires unless and until the parties reach agreement or impasse.  While negotiations continue, the employer’s obligation to refrain from making unilateral changes generally encompasses a duty to refrain from implementation unless and until an overall impasse has been reached on bargaining for the agreement as a whole. See Pleasantview Nursing Home, 335 NLRB 96 (2001) citing Bottom Line Enterprises, 302 NLRB 373 (1991). The NLRB considers negotiations to be in progress, and will not find a genuine impasse to exist, until the parties are warranted in assuming that further bargaining would be “futile” or that there is “no realistic possibility that continuation of discussion .  . . would be fruitful.” Saint-Gobain Abrasives, Inc., 343 NLRB 542 556 (2004).

Because the existence of impasse is a factual determination that depends on a variety of factors, including the contemporaneous understanding of the parties as to the state of negotiations, the good faith of the parties, the importance of the disputed issues, the parties’ bargaining history, and the length of their negotiations, Taft Broadcasting Co., 163 NLRB 475, 478 (1967), parties to the negotiation often do not necessarily agree when they have reached impasse.  As the September 28 decision by the NLRB against the Hotel shows, employers that act unilaterally based on an overly optimistic determination of impasse suffer significant financial and other operational and legal risks for engaging in unfair labor practices in violation of Section 8 of the NLRA. 

NLRB Nails Hotel Bel-Air For Failing To Bargain, Offering Severance Around Union

In its September 28, 2012 Bel-Air Hotel Decision, the NLRB ruled the Hotel engaged in unfair labor practices in violation of the NLRA when it offered severance packages to laid off workers in return for the workers’ waiver of recall rights without bargaining to impasse with the union representing its workers, UNITE HERE Local 11 (Union), about the effects of the temporary shutdown.  

The NLRB also ruled the Hotel engaged in unlawful direct dealing by contacting the employees about severance packages without going through the Union even though the Hotel’s contract with the union had expired when the Hotel contacted the laid off union employees to offer severance in return for waivers.  As a result, the NLRB ordered the Hotel to rescind the waiver and release forms signed by the Union members and to meet and bargain with the Union on these terms.

Bel-Air Hotel Decision Background

The NLRB order against the Hotel resulted from unfair labor practice charges that the Union filed against the Hotel after the Hotel offered severance packages directly to workers in exchange for the workers’ waiver of their recall rights while the workers were laid off during the Hotel’s temporary closure for renovations in 2009. 

Before the Hotel offered the severance package directly to the laid off workers, the Hotel and the Union bargained for nine months about the terms of a separation agreement and recall rights for employees who would lose their jobs during a planned 2-year shutdown of the facility for renovation.  In April, 2010, the Hotel gave the Union what it said was the “last, best, and final offer” on severance pay for unit employees laid off during the temporary renovation closure.  While the Union and the Hotel did talk after the Hotel made this final offer. Unfortunately, the parties did not reach an agreement before their existing collective bargaining agreement expired or before the Hotel shut down the facility for renovation.  After the shutdown, the Union and the Hotel stopped formal negotiations but had some “off the record” informal communications until June.  With no resolution by the end of June, the Hotel moved forward unilaterally to offer severance directly to the laid off employees as outlined in its final offer. 

Although the facility was closed and the employees already laid off when the Hotel’s contract with the Union expired, the Union claimed the Hotel remained obligated to negotiate with the Union.  The Union said a flurry of “off-the-record” discussions between the Hotel and the Union leading up to and after the termination showed the parties had not reached impasse. The Union also separately charged that the Hotel violated the NLRA by going around the Union to directly contact employees to offer severance payments in exchange for waiving their right to return to their jobs when the Hotel reopened after renovation.

In response to unfair labor practices charges filed by the Union, Hotel management among other things argued that the Union no longer represented the employees when it offered severance and because the parties’ contract had expired and the parties were at impasse when the Hotel made the offer.

  • Union Remained Representative Despite Layoff & Temporary Facilities Shutdown

The NLRB found “meritless” the Hotel’s effort to rely upon the NLRB’s decision in  Sterling Processing Corp., 291 NLRB 208 (1988) to support the Hotel’s claim that it had no duty to bargain or extend the severance offers through the Union because it made the unilateral severance offer when the facility was closed and the employees were already laid off.

In Sterling, the NLRB found the employer’s unilateral modification of preclosure wages and working conditions did not violate Section 8(a)(5) of the NLRA because when the employer acted unilaterally, there were no employees for the union to represent because when the employer took its unilateral action, the employer already had permanently closed the facility and terminated all employees with no reasonable expectation of reemployment.   

The NLRB ruled that the circumstances when the Hotel acted were distinguishable from Sterling because the unit employees on layoff from the Hotel retained a reasonable expectation of recall from layoff since the Hotel’s closure was only temporary and the Hotel had only laid off, and not yet discharged the employees when it made the unilateral severance offers.  According to the NLRB, the terms of the severance offer evidenced the existence of an expectation of recall because under the terms of that offer, employees who accepted a severance payment waived their recall rights.  See, Rockwood Energy & Mineral Corp., 299 NLRB 1136, 1139 fn. 11 (1990), enfd. 942 F.2d 169 (3d Cir. 1991)(finding that lengthy suspension of production did not relieve employer of its bargaining obligation where laid off employees had “some expectation of recall,” and distinguishing Sterling).

  • No Impasse Because Of Informal “Off The Record” Communications

The Hotel also separately and unsuccessfully argued that its direct offer of severance benefits to laid off employees was not an unfair labor practice because the parties had bargained to impasse before the offer was made. In response to the Union’s claim that a series of “off-the-record” exchanges between the Union and Hotel after the contract expired reflected a continuation of bargaining, the Hotel argued that an impasse existed because the Union was not engaged in good faith negotiations and there was not any possibility that the informal discussions between the Union and the Hotel would result in any fruitful change in the parties positions. 

In an effort to support its position, the Hotel management argued that the Union’s negotiation behavior with other Los Angeles hotels showed the Union had a practice of “artificially extend[ing] negotiations in bad faith” that supported the Hotel’s claim that continued negotiation would be futile. The NLRB rejected this argument too.  It said evidence that the Union did not bargain in good faith to string out negotiations when negotiating with other businesses as part of a campaign to coerce all hotels city wide to agree to a standard contract had no probative relevance for purposes of determining if the Hotel and the Union had bargained to impasse in their negotiations and did not prove bad faith by the Union for purposes of its negotiation with the Hotel.

Having rejected these and other Hotel arguments and evidence of impasse, the NLRB ruled that the evidence indicated that the parties continued communications had narrowed their differences before and after the Hotel made its last final offer on April 9.  Given this progress, the NLRB ruled that parties’ participation in informal off the record discussions well into June were sufficient to show the existence of some possibility that continued negotiations might result in a fruitful change in the parties position sufficient to obligate the Hotel to continue to bargain with the Union.

NLRB Order Carries Heavy Cost for Bel-Air Hotel

Complying the NLRB’s orders to remedy the breach will be painful and expensive for the Hotel, particularly since by the time the order was issued, the renovation was substantially completed. 

To fulfill the requirements of the Order, the Hotel must, among other things:

  • Bargain with the Union as the recognized and exclusive collective-bargaining representative of the employees about the effects on bargaining unit employees of the temporary shutdown of the hotel for renovation and, if an understanding is reached, embody the understanding in a signed collective bargaining agreement;
  • Not deal directly with bargaining unit employees about severance, waiver and release or other terms or arrangements relating to the impact of the temporary shutdown on the bargaining unit employees
  • Rescind the waiver and release agreements signed by individual bargaining unit employees which included the waiver of rehire rights; and
  • Post a NLRB-mandated written notice in the workplace for 60 consecutive days in conspicuous places.

This means that the Hotel will have to work through issues about how to find positions for employees, if any, who originally agreed to waive their rehire rights who now wish to be rehired, as well as engage in expensive bargaining and the implementation of the terms of any resulting collective bargaining agreement.

Union Duties One of Many Potential HR RIF & Deal Traps

The NLRB’s prounion ruling is unsurprising. Since the Obama Administration took office, its NLRB appointments, rule changes and other activism are intended to and are promoting the strength and efforts of labor.  See e.g. Labor Risks Rising For Employers Despite NLRB Loss Of Arizona Secret Ballot Challenge : HR Article by Ms. Cynthia Marcotte Stamer .

Collective bargaining responsibilities like those that resulted in the NLRB order against the Hotel are only one of many potential labor, human resources and benefits-related traps that businesses need to negotiate carefully when planning and executing layoffs or other workforce restructurings in connection with cost or other restructurings, business transactions or other activities impacting the workforce. 

Some examples of other issues and risks that businesses involved in changes impacting their workforce also may need to manage include but are not limited to the need to manage discrimination, federal and state leave, whistleblower and retaliation, and other general employment-related legal risks and responsibilities; to give Worker Adjustment and Retraining Act (WARN) or state law required plant closing or other notifications to workers, unions, government officials, vendors, customers, lenders or other creditors, insurers or others; to disclose, review,  modify or terminate contracts, employee benefit plan documents, communications and other materials; to modify fiduciary, officer, board or other assignments and other related insurance, indemnification, bonding and related arrangements; to comply with employee benefit and compensation related plan document, fiduciary responsibility, discrimination, communication, benefit funding or distribution, reporting and disclosure and other Employee Retirement Income Security Act, Internal Revenue Code, securities and other laws and regulations; privacy, trade secret, and other data integration, confidentiality, and information security and management concerns; Sarbanes-Oxley  and other securities, accounting or related requirements; system and data integration; and many others.

Because improper handling of these or other responsibilities in connection with these responsibilities can significantly undermine the businesses’ ability to realize the financial and operational goals behind the action, as well as expose the business to potentially costly liability, businesses anticipating or conducting reductions in the force or other activities that will impact their workforce should seek advice and help from qualified legal counsel experienced with these concerns early to mitigate these concerns.

If you have any questions or need help with these or other workforce management, employee benefits or compensation matters, please do not hesitate to contact the author of this update, Cynthia Marcotte Stamer.

About The Author

Management attorney and consultant Cynthia Marcotte Stamer helps businesses, governments and associations solve problems, develop and implement strategies to manage people, processes, and regulatory exposures to achieve their business and operational objectives and manage legal, operational and other risks. Board certified in labor and employment law by the Texas Board of Legal Specialization, with more than 25 years human resource and employee benefits experience, Ms. Stamer helps businesses manage their people-related risks and the performance of their internal and external workforce though appropriate human resources, employee benefit, worker’s compensation, insurance, outsourcing and risk management strategies domestically and internationally. Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble AV-Rating, Ms. Stamer also is a highly regarded author and speaker, who regularly conducts management and other training on a wide range of labor and employment, employee benefit, human resources, internal controls and other related risk management matters.  Her writings frequently are published by the American Bar Association (ABA), Aspen Publishers, Bureau of National Affairs, the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc., Atlantic Information Services, Employee Benefit News, and many others. For a listing of some of these publications and programs, see here. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. Chair of the ABA RPTE Employee Benefit and Other Compensation Committee, a council member of the ABA Joint Committee on Employee Benefits, and the Legislative Chair of the Dallas Human Resources Management Association Government Affairs Committee, she also serves in leadership positions in many human resources, corporate compliance, and other professional and civic organizations. For more details about Ms. Stamer’s experience and other credentials, contact Ms. Stamer, information about workshops and other training, selected publications and other human resources related information, see here or contact Ms. Stamer via telephone at 469.767.8872 or via e-mail to  cstamer@solutionslawyer.net.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources at www.solutionslawpress.com including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information here.   

©2012 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.


Tighten Employment Disability Risk Management As Obama Declares 12/10 National Disability Employment Awareness Month

October 1, 2012

President Obama’s declaration today (October 1, 2012) of October as National Disability Employment Awareness Month reminds business that U.S. businesses and their leaders need to tighten their disability discrimination risk management and compliance in light of the Obama Administration’s emphasis on aggressively interpreting and enforcing disability discrimination laws, rising private plaintiff lawsuits and other recent regulatory and judicial changes.

In his proclaimation today, President Obama reaffirmed his often stated commitment to the aggressive enforcement of disability laws and other efforts to promote opportunities for disabled individuals, stating:

“[My Administration remains committed to helping our businesses, schools, and communities support our entire workforce. To meet this challenge,… we are striving to make it easier to get and keep those jobs by improving compliance with Section 508 of the Rehabilitation Act.

As the administration marks the month, U.S. employers and other business leaders can expect the Obama Administration will be stepping up its already aggressive outreach to disabled Americans to promote awareness of their disability law rights and tools for asserting and enforcing these rights.

Business Faces Growing Employment Disability Exposures

As part of his administration’s commitment, the Obama Administration has moved to aggressively enforce the disability and accommodations of teh Americans With Disabilities Act, Section 508 of the Rehabilitation Act, and other federal disability discrimination laws.  The reach and effectiveness of these efforts has been enhanced by statutory and regulatory changes that require employers to exercise greater efforts to meet their compliance obligations and manage their disability and other discrimination risks.

ADA Exposures Heightened

The ADA, for instance, generally prohibits disability discrimination and requires employers to make reasonable accommodations to employees’ and applicants’ disabilities as long as this does not pose an undue hardship.  Violations of the ADA can expose businesses to substantial liability. Violations of the ADA may be prosecuted by the EEOC or by private lawsuits.  Employees or applicants that can prove they were subjected to prohibited disability discrimination under the ADA generally can recover actual damages, attorneys’ fees, and up to $300,000 of exemplary damages (depending on the size of the employer).   

In recent years, amendments to the original provisions of the ADA have made it easier for plaintiffs and the EEOC to establish disabled status of an individual.  Businesses should exercise caution to carefully document legitimate business justification for their hiring, promotion and other employment related decisions about these and other individuals who might qualify as disabled.  Provisions of the ADA Amendments Act (ADAAA) that expand the definition of “disability” under the ADA,  As signed into law on September 25, 2008, the ADAAA amended the definition of “disability” for purposes of the disability discrimination prohibitions of the ADA to make it easier for an individual seeking protection under the ADA to establish that that has a disability within the meaning of the ADA.  The ADAAA retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, provisions of the ADAAA that took effect January 1, 2009 change the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:

  • Directs EEOC to revise that portion of its regulations defining the term “substantially limits;”
  • Expands the definition of “major life activities” by including two non-exhaustive lists: (1) The first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating); and (2) The second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”);
  • States that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
  • Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
  • Changes the definition of “regarded as” so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor; and
  • Provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.

The ADAAA also emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.In adopting these changes, Congress expressly sought to overrule existing employer-friendly judicial precedent construing the current provisions of the ADA and to require the EEOC to update its existing guidance to confirm with the ADAAA Amendments.  Under the leadership of the Obama Administration, the EEOC and other federal agencies have embraced this charge and have sigificantly stepped up enforcement of the ADA and other federal discrimination laws.

Recent enforcement, regulatory and other activities by the EEOC demonstrate that the EEOC is enthusiastically moving forward to exercise its regulatory and enforcement powers under these enhanced ADA provisions to tighten requirements for employers and to enforce its rules. See e.g.,  Leprino Foods To Pay $550K To Settle OFCCP Charge Pre-Hire Screening Test Illegally Discriminated « As EEOC Steps Up ADA Accommodation Enforcement, New DOD Apple App, Other Resources Released; Wal-Mart Settlement Shows ADA Risks When Considering Employee Return To Work Accommodation Requests & Inquiries; Employer Pays $475,000 To Settle ADA Discrimination Lawsuit Challenging Medical Fitness Testing For EMTs, Firefighters & Other Public Safety Worker’s.

Rehabilitation Act Risks For Government Contractors

Beyond the generally applicable risks applicable to all employers of more than 15 employees under the ADA, federal and state government contractors face additional responsibilities and risks. 

Subject to limited exceptions, government contractors providing services or supplies on ARRA or other government funded contracts or projects must comply both with generally applicable employment discrimination requirements and special statutory and contractual nondiscrimination, affirmative action, and recordkeeping requirements applicable government contractors. For instance, federal law generally requires government contractors to comply with the special equal employment opportunity requirements of  Executive Order 11246 (EO 11246); Section 503 of the Rehabilitation Act of 1973 (Section 503); and the Vietnam Veterans’ Readjustment Assistance Act of 1974 (VEVRAA).   Pursuant to these laws, business with the federal government, both contractors and subcontractors, generally must follow a number of statutory and contractual requirements to follow the fair and reasonable standard that they not discriminate in employment on the basis of sex, race, color, religion, national origin, disability or status as a protected veteran. OFCCP generally audits and enforces these requirements. Memo to Funding Recipients: Compliance with Applicable Nondiscrimination and Equal Opportunity Statutes, Regulations, and Executive Orders.  

OFCCP has made clear that it will conduct compliance evaluations and host compliance assistance events to ensure that federal contractors comply and are aware of their responsibilities under EO 11246, Section 503 and VEVRAA. 

While many government contractors may be tempted to become complacent about OFCCP exposures based on reports of the OFCCP’s relatively low enforcement in the past, see Report Says OFCCP Enforcement Data Show Infrequent Veteran, Disability Bias Findings | Bloomberg BNA recent enforcement data documents OFCCP is getting much more serious and aggressive about auditing and enforcing compliance with its affirmative action and other requirements against government contractors under the Obama Administration.  See, OFCCP Enforcement Data is Available on a New DOL Website. See also, Affirmative Action Update: OFCCP Enforcement Statistics Show Increase in Violations.  The readiness of OFCCP to enforce its rules is illustrated by the settlement of an OFCCP action filed against federal contractor Nash Finch Co. (Nash Finch) announceed last week.  Under the settlement, Nash Finch to pay $188,500 in back wages and interest and offer jobs to certain women applicants who OFCCP charged Nash rejected for the entry-level position of order selector at the company’s distribution facility in Lumberton, Minnesota.  See Settlement of OFCCP Employment Discrimination Charge Reminder To ARRA, Other Government Contractors Of Heightened Enforcement Risks.

These government contractor disability discrimination risks are particularly acute where the government contractor works on or provides supplies on contacts or projects funded in whole or in part by monies provided under the American Recovery and Reinvestment Act of 2009 (“ARRA”).    When the contract or project in question receives any funding out of the $787 billion of stimulus funding provided by ARRA, special OFCCP rules applicable to ARRA funded projects necessitates that federal contractors exercise special care to understand and meet their responsibilities and manage associated exposures.   See, e.g. Settlement of OFCCP Employment Discrimination Charge Reminder To ARRA, Other Government Contractors Of Heightened Enforcement Risks

Businesses Should Act To Manage Risks

The ADAAA amendments, the Rehabilitation Act’s expanded reach, and the Obama Administration’s emphasis on enforcement make it likely that businesses generally will face more disability claims from a broader range of employees and will possess fewer legal shields to defend themselves against these claims. These changes will make it easier for certain employees to qualify and claim protection as disabled under the ADA, the Rehabilitation Act, and other disability discrimination laws. 

In light of these and other developments and risks, businesses generally should act cautiously when dealing with applicants or employees with actual, perceived, or claimed physical or mental impairments to minimize exposures under the ADA, the Rehabilitation Act and other laws.  Management should exercise caution to carefully and appropriate the potential legal significance of physical or mental impairments or conditions that might be less significant in severity or scope, correctable through the use of eyeglasses, hearing aids, daily medications or other adaptive devices, or that otherwise have been assumed by management to fall outside the ADA’s scope.  

Likewise, businesses should be prepared for the EEOC, OFCCP and the courts to treat a broader range of disabilities, including those much more limited in severity and life activity restriction, to qualify as disabling for purposes of the Act. Businesses should assume that a greater number of employees with such conditions are likely to seek to use the ADA as a basis for challenging hiring, promotion and other employment decisions.  For this reason, businesses generally should tighten job performance and other employment recordkeeping to enhance their ability to demonstrate nondiscriminatory business justifications for the employment decisions made by the businesses.

Businesses also should consider tightening their documentation regarding their procedures and processes governing the  collection and handling records and communications that may contain information regarding an applicant’s physical or mental impairment, such as medical absences, worker’s compensation claims, emergency information, or other records containing health status or condition related information.  The ADA generally requires that these records be maintained in separate confidential files and disclosed only to individuals with a need to know under circumstances allowed by the ADA. 

As part of this process, businesses also should carefully review their employment records, group health plan, family leave, disability accommodation, and other existing policies and practices to comply with, and manage exposure under the new genetic information nondiscrimination and privacy rules enacted as part of the Genetic Information and Nondiscrimination Act (GINA) signed into law by President Bush on May 21, 2008.  Effective November 21, 2009, Title VII of GINA amends the Civil Rights Act to prohibit employment discrimination based on genetic information and restricts the ability of employers and their health plans to require, collect or retain certain genetic information. Under GINA, employers, employment agencies, labor organizations and joint labor-management committees face significant liability for violating the sweeping nondiscrimination and confidentiality requirements of GINA concerning their use, maintenance and disclosure of genetic information. Employees can sue for damages and other relief like currently available under Title VII of the Civil Rights Act of 1964 and other nondiscrimination laws.  For instance, GINA’s employment related provisions include rules that will:

  • Prohibit employers and employment agencies from discriminating based on genetic information in hiring, termination or referral decisions or in other decisions regarding compensation, terms, conditions or privileges of employment;
  • Prohibit employers and employment agencies from limiting, segregating or classifying employees so as to deny employment opportunities to an employee based on genetic information;
  • Bar labor organizations from excluding, expelling or otherwise discriminating against individuals based on genetic information;
  • Prohibit employers, employment agencies and labor organizations from requesting, requiring or purchasing genetic information of an employee or an employee’s family member except as allowed by GINA to satisfy certification requirements of family and medical leave laws, to monitor the biological effects of toxic substances in the workplace or other conditions specifically allowed by GINA;
  • Prohibit employers, labor organizations and joint labor-management committees from discriminating in any decisions related to admission or employment in training or retraining programs, including apprenticeships based on genetic information;
  • Mandate that in the narrow situations where limited cases where genetic information is obtained by a covered entity, it maintain the information on separate forms in separate medical files, treat the information as a confidential medical record, and not disclosure the genetic information except in those situations specifically allowed by GINA;
  • Prohibit any person from retaliating against an individual for opposing an act or practice made unlawful by GINA; and
  • Regulate the collection, use, access and disclosure of genetic information by employer sponsored and certain other health plans.

These employment provisions of GINA are in addition to amendments to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Employee Retirement Income Security Act of 1974 (ERISA), the Public Health Service Act, the Internal Revenue Code of 1986, and Title XVIII (Medicare) of the Social Security Act that are effective for group health plan for plan years beginning after May 20, 2009.

If you have any questions or need help reviewing and updating your organization’s employment and/or employee practices in response to the Rehabilitation Act, ADA, GINA or other applicable laws, or if we may be of assistance with regard to any other workforce management, employee benefits or compensation matters, please do not hesitate to contact the author of this update, Board Certified Labor and Employment Attorney and Management Consultant Cynthia Marcotte Stamer at 469..

About The Author

Management attorney and consultant Cynthia Marcotte Stamer helps businesses, governments and associations solve problems, develop and implement strategies to manage people, processes, and regulatory exposures to achieve their business and operational objectives and manage legal, operational and other risks. Board certified in labor and employment law by the Texas Board of Legal Specialization, with more than 25 years human resource, employee benefits and management experience, Ms. Stamer helps businesses manage their people-related risks and the performance of their internal and external workforce though appropriate human resources, employee benefit, worker’s compensation, insurance, outsourcing and risk management strategies domestically and internationally. Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble AV-Rating, Ms. Stamer also is a highly regarded author and speaker, who regularly conducts management and other training on a wide range of labor and employment, employee benefit, human resources, internal controls and other related risk management matters.  Her writings frequently are published by the American Bar Association (ABA), Aspen Publishers, Bureau of National Affairs, the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc., Atlantic Information Services, Employee Benefit News, and many others. For a listing of some of these publications and programs, see here. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. Chair of the ABA RPTE Employee Benefit and Other Compensation Committee, a council member of the ABA Joint Committee on Employee Benefits, and the Legislative Chair of the Dallas Human Resources Management Association Government Affairs Committee, she also serves in leadership positions in numerous human resources, corporate compliance, and other professional and civic organizations. For more details about Ms. Stamer’s experience and other credentials, contact Ms. Stamer, information about workshops and other training, selected publications and other human resources related information, see here or contact Ms. Stamer via telephone at 214.270.2402 or via e-mail here.

Other Helpful Resources & Other Information

If you found these updates of interest, you also be interested in one or more of the following other recent articles published in this electronic Solutions Law publication available for review here including:

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©2012 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press, Inc.  All other  rights reserved. 


Tighten Disability Discrimination Defenses As National Disability Employment Awareness Month Promises To Whip Up New Claims & Awareness

October 1, 2012

President Obama’s declaration today (October 1, 2012) of October as National Disability Employment Awareness Month reminds business that U.S. businesses and their leaders need to tighten their disability discrimination risk management and compliance in light of the Obama Administration’s emphasis on aggressively interpreting and enforcing disability discrimination laws, rising private plaintiff lawsuits and other recent regulatory and judicial changes.  With the Administration expected to step up further its already substantial educational outreach to the disabled and their advocates, U.S. employers should brace for this month’s celebration to fuel even more disability discrimination claims and other activity by the disabled and their activists.

Since taking office, President Obama has make enforcing and expanding the rights of the disabled in employment and other areas a leading priority. 

In his proclamation today, President Obama reaffirmed his often stated commitment to the aggressive enforcement of disability laws and other efforts to promote opportunities for disabled individuals, stating:

“[My Administration remains committed to helping our businesses, schools, and communities support our entire workforce. To meet this challenge,… we are striving to make it easier to get and keep those jobs by improving compliance with Section 508 of the Rehabilitation Act.”

As the administration marks the month, U.S. employers and other business leaders can expect the Obama Administration will be stepping up its already aggressive outreach to disabled Americans to promote awareness of their disability law rights and tools for asserting and enforcing these rights.  See, e.g. October Is National Disability Employment Awareness Month (NDEAM).

Business Faces Growing Employment Disability Exposures

As part of his administration’s commitment, the Obama Administration has moved to aggressively enforce the disability and accommodations of the Americans With Disabilities Act (ADA), Section 508 of the Rehabilitation Act, and other federal disability discrimination laws.  The reach and effectiveness of these efforts has been enhanced by statutory and regulatory changes that require employers to exercise greater efforts to meet their compliance obligations and manage their disability and other discrimination risks.

ADA Exposures Heightened

The ADA, for instance, generally prohibits disability discrimination and requires employers to make reasonable accommodations to employees’ and applicants’ disabilities as long as this does not pose an undue hardship.  Violations of the ADA can expose businesses to substantial liability. Violations of the ADA may be prosecuted by the EEOC or by private lawsuits.  Employees or applicants that can prove they experienced prohibited disability discrimination under the ADA generally can recover actual damages, attorneys’ fees, and up to $300,000 of exemplary damages (depending on the size of the employer).   

In recent years, amendments to the original provisions of the ADA have made it easier for plaintiffs and the EEOC to prove disabled status of an individual.  Businesses should exercise caution to carefully document legitimate business justification for their hiring, promotion and other employment related decisions about these and other individuals who might qualify as disabled.  Provisions of the ADA Amendments Act (ADAAA) that expand the definition of “disability” under the ADA,  As signed into law on September 25, 2008, the ADAAA amended the definition of “disability” for purposes of the disability discrimination prohibitions of the ADA to make it easier for an individual seeking protection under the ADA to establish that that has a disability within the meaning of the ADA.  The ADAAA retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, provisions of the ADAAA that took effect January 1, 2009 change the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:

  • Directs EEOC to revise that part of its regulations defining the term “substantially limits;”
  • Expands the definition of “major life activities” by including two non-exhaustive lists: (1) The first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating); and (2) The second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”);
  • States that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
  • Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
  • Changes the definition of “regarded as” so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor; and
  • Provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.

The ADAAA also emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.In adopting these changes, Congress expressly sought to overrule existing employer-friendly judicial precedent construing the current provisions of the ADA and to require the EEOC to update its existing guidance to confirm with the ADAAA Amendments.  Under the leadership of the Obama Administration, the EEOC and other federal agencies have embraced this charge and have significantly stepped up enforcement of the ADA and other federal discrimination laws.

Recent enforcement, regulatory and other activities by the EEOC show that the EEOC is enthusiastically moving forward to exercise its regulatory and enforcement powers under these enhanced ADA provisions to tighten requirements for employers and to enforce its rules. See e.g.,  Leprino Foods To Pay $550K To Settle OFCCP Charge Pre-Hire Screening Test Illegally Discriminated « As EEOC Steps Up ADA Accommodation Enforcement, New DOD Apple App, Other Resources Released; Wal-Mart Settlement Shows ADA Risks When Considering Employee Return To Work Accommodation Requests & Inquiries; Employer Pays $475,000 To Settle ADA Discrimination Lawsuit Challenging Medical Fitness Testing For EMTs, Firefighters & Other Public Safety Worker’s.

Rising Rehabilitation Act Risks For Government Contractors

Beyond the generally applicable risks applicable to all employers of more than 15 employees under the ADA, federal and state government contractors face more responsibilities and risks. 

Subject to limited exceptions, government contractors providing services or supplies on ARRA or other government-funded contracts or projects must comply both with generally applicable employment discrimination requirements and special statutory and contractual nondiscrimination, affirmative action, and recordkeeping requirements applicable government contractors. For instance, federal law generally requires government contractors to comply with the special equal employment opportunity requirements of  Executive Order 11246 (EO 11246); Section 503 of the Rehabilitation Act of 1973 (Section 503); and the Vietnam Veterans’ Readjustment Assistance Act of 1974 (VEVRAA).   Pursuant to these laws, business with the federal government, both contractors and subcontractors, generally must follow a number of statutory and contractual requirements to follow the fair and reasonable standard that they not discriminate in employment on the basis of sex, race, color, religion, national origin, disability or status as a protected veteran. OFCCP generally audits and enforces these requirements. Memo to Funding Recipients: Compliance with Applicable Nondiscrimination and Equal Opportunity Statutes, Regulations, and Executive Orders.  

OFCCP has made clear that it will conduct compliance evaluations and host compliance assistance events to ensure that federal contractors comply and are aware of their responsibilities under EO 11246, Section 503 and VEVRAA. 

While many government contractors may be tempted to become complacent about OFCCP exposures based on reports of the OFCCP’s relatively low enforcement in the past, see Report Says OFCCP Enforcement Data Show Infrequent Veteran, Disability Bias Findings | Bloomberg BNA recent enforcement data documents OFCCP is getting much more serious and aggressive about auditing and enforcing compliance with its affirmative action and other requirements against government contractors under the Obama Administration.  See, OFCCP Enforcement Data is Available on a New DOL Website. See also, Affirmative Action Update: OFCCP Enforcement Statistics Show Increase in Violations.  The readiness of OFCCP to enforce its rules is illustrated by the settlement of an OFCCP action filed against federal contractor Nash Finch Co. (Nash Finch) announceed last week.  Under the settlement, Nash Finch to pay $188,500 in back wages and interest and offer jobs to certain women applicants who OFCCP charged Nash rejected for the entry-level position of order selector at the company’s distribution facility in Lumberton, Minnesota.  See Settlement of OFCCP Employment Discrimination Charge Reminder To ARRA, Other Government Contractors Of Heightened Enforcement Risks.

These government contractor disability discrimination risks are particularly acute where the government contractor works on or provides supplies on contacts or projects funded in whole or in part by monies provided under ARRA.    When the contract or project in question receives any funding out of the $787 billion of stimulus funding provided by ARRA, special OFCCP rules applicable to ARRA funded projects necessitates that federal contractors exercise special care to understand and meet their responsibilities and manage associated exposures.   See, e.g. Settlement of OFCCP Employment Discrimination Charge Reminder To ARRA, Other Government Contractors Of Heightened Enforcement Risks

GINA & Other Medical Information Nondiscrimination & Privacy Risks

Employers also need to use care to ensure that their hiring and other employment practices, as well as their employee benefits, workers’ compensation and wellness practices are up to date and properly managed to mitigate exposures under laws like the Genetic Information and Nondiscrimination Act (GINA),  the ADA’s medical information privacy requirements,  as well as the privacy and nondiscrimination rules of the Health Insurance Portability & Accountability Act and other relevant federal and state laws.

Signed into law by President Bush on May 21, 2008 and in effect since November 21, 2009, for instance, Title VII of GINA amended the Civil Rights Act to prohibit employment discrimination based on genetic information and to restrict the ability of employers and their health plans to require, collect or retain certain genetic information. Under GINA, employers, employment agencies, labor organizations and joint labor-management committees face significant liability for violating the sweeping nondiscrimination and confidentiality requirements of GINA concerning their use, maintenance and disclosure of genetic information. Employees can sue for damages and other relief like now available under Title VII of the Civil Rights Act of 1964 and other nondiscrimination laws.  For instance, GINA’s employment related provisions include rules that:

  • Prohibit employers and employment agencies from discriminating based on genetic information in hiring, termination or referral decisions or in other decisions regarding compensation, terms, conditions or privileges of employment;
  • Prohibit employers and employment agencies from limiting, segregating or classifying employees so as to deny employment opportunities to an employee based on genetic information;
  • Bar labor organizations from excluding, expelling or otherwise discriminating against individuals based on genetic information;
  • Prohibit employers, employment agencies and labor organizations from requesting, requiring or purchasing genetic information of an employee or an employee’s family member except as allowed by GINA to satisfy certification requirements of family and medical leave laws, to monitor the biological effects of toxic substances in the workplace or other conditions specifically allowed by GINA;
  • Prohibit employers, labor organizations and joint labor-management committees from discriminating in any decisions related to admission or employment in training or retraining programs, including apprenticeships based on genetic information;
  • Mandate that in the narrow situations where limited cases where genetic information is obtained by a covered entity, it maintain the information on separate forms in separate medical files, treat the information as a confidential medical record, and not disclosure the genetic information except in those situations specifically allowed by GINA;
  • Prohibit any person from retaliating against an individual for opposing an act or practice made unlawful by GINA; and
  • Regulate the collection, use, access and disclosure of genetic information by employer sponsored and certain other health plans.

These employment provisions of GINA are in addition to amendments to HIPAA, the Employee Retirement Income Security Act of 1974 (ERISA), the Public Health Service Act, the Internal Revenue Code of 1986, and Title XVIII (Medicare) of the Social Security Act that are effective for group health plan for plan years beginning after May 20, 2009.  Under these HIPAA and GINA rules, health plans generally may not make certain medical inquiries or discriminate against employees or their family members based on family or individual medical history or genetic information.  In addition, health plans and others are required to safeguard personal medical information and may only share that information only under very limited circumstances requiring specific documentation be in place and that the parties can prove that the access and use of that information is appropriately restricted.  Violation of these and other rules can have significant civil and in some cases even criminal liabilities for companies, plans, plan fiduciaries and company officials that take part in violations of these rules.

Businesses Should Act To Manage Risks

The ADAAA amendments, the Rehabilitation Act’s expanded reach, and the Obama Administration’s emphasis on enforcement make it likely that businesses generally will face more disability claims from a broader range of employees and will have fewer legal shields to defend themselves against these claims. These changes will make it easier for certain employees to qualify and claim protection as disabled under the ADA, the Rehabilitation Act, and other disability discrimination laws. 

All U.S. businesses should review and tighten the adequacy of their existing compliance and risk management practices to promote and document compliance.  These efforts should focus on all relevant hiring, recruitment, promotion, compensation, recordkeeping and reporting policies and practices internally, as well as those of any recruiting agencies, subcontractors or other business partners whose actions might impact on compliance.

In light of these and other developments and risks, businesses generally should act cautiously when dealing with applicants or employees with actual, perceived, or claimed physical or mental impairments to minimize exposures under the ADA, the Rehabilitation Act and other laws.  Management should exercise caution to carefully and appropriately assess and identify the potential legal significance of physical or mental impairments or conditions that might be less significant in severity or scope, correctable through the use of eyeglasses, hearing aids, daily medications or other adaptive devices, or that management might be tempted to assume fall outside the ADA’s scope.  

Likewise, businesses should be ready for the EEOC, OFCCP and the courts to treat a broader range of disabilities, including those much more limited in severity and life activity restriction, to qualify as disabling for purposes of the Act. Businesses should assume that a greater number of employees with such conditions are likely to seek to use the ADA as a basis for challenging hiring, promotion and other employment decisions.  For this reason, businesses generally should tighten job performance and other employment recordkeeping to enhance their ability to demonstrate nondiscriminatory business justifications for the employment decisions made by the businesses.

Businesses also should consider tightening their documentation regarding their procedures and processes governing the  collection and handling records and communications that may contain information regarding an applicant’s physical or mental impairment, such as medical absences, worker’s compensation claims, emergency information, or other records containing health status or condition related information.  The ADA generally requires that these records be maintained in separate confidential files and disclosed only to individuals with a need to know under circumstances allowed by the ADA. 

As part of this process, businesses also should carefully review their employment records, group health plan, family leave, disability accommodation, and other existing policies and practices to comply with, and manage exposure under  the genetic information nondiscrimination and privacy rules enacted as part of GINA, the health care privacy rules of the HIPAA, and the medical record privacy rules of the ADA.  Particular care should be used when planning wellness, health risk assessment, work-related injury, family or other medical leave or related programs, all of which raise particular risks and concerns.

In the face of the rising emphasis of OFCCP, the EEOC and other federal and state agencies on these audit and enforcement activities, government contractors should exercise additional compliance and risk management efforts beyond these generally recommended steps.   Among other things, these steps should include the following:

  • Government contractors and subcontractors should specifically review their existing or proposed contracts and involvements to identify projects or contracts which may involve federal or state contracts or funding that could trigger responsibility.  In this respect, businesses should conduct well-documented inquiries when proposing and accepting contracts to ensure that potential obligations as a government contractor are not overlooked because of inadequate intake procedures. Businesses also should keep in mind that ARRA and other federal program funds often may be filtered through a complex maze of federal grants or program funding to states or other organizations, which may pass along government contractor status and liability when subcontracting for services as part of the implementation of broader programs.  Since the existence of these obligations often is signaled by contractual representations in the contracts with these parties, careful review of contractual or bid specifications and commitments is essential.  However, it also generally is advisable also to inquire about whether the requested products or services are provided pursuant to programs or contracts subject to these requirements early in the process. 
  • In addition to working to identify contracts and arrangements that are covered by OFCCP or other requirements, government contractors and other businesses also should reconfirm and continuously monitor the specific reporting, affirmative action, and other requirements that apply to any programs that may be subject to OFCCP requirements to ensure that they fully understand and implement appropriate procedures to comply with these conditions as well as pass along  the obligation to make similarly necessary arrangements to any subcontractors or suppliers that the government contractor involves as a subcontractor. 
  • Throughout the course of the contract, the government contractor also should take steps to maintain and file all required reports and monitor and audit operational compliance with these and other requirements.  
  • The organization should develop and administer appropriate procedures for monitoring and investigating potential compliance concerns and maintaining documentation of that activity.  Any known potential deficiencies or complaints should be promptly investigated and redressed with the assistance of qualified counsel in a prompt manner to mitigate potential risks.
  • Documentation should be carefully retained and organized on a real time and continuous basis to faciliate efficiency and effectiveness in completing required reports, monitoring compliance indicators and responding to OFCCP, EEOC or private plaintiff charges as well as other compliance inquiries.
  • Any audit inquiries or charges should be promptly referred to qualified legal counsel for timely evaluation and response.
  • When available and affordable, management should consider securing appropriate employment practices liability coverage, indemnification from business partners and other liability protection and assurance to help mitigate investigagtion and defense costs.
  • Board members or other senior management should include periodic review of compliance in their agenda.

If you have any questions or need help reviewing and updating your organization’s employment and/or employee practices in response to the Rehabilitation Act, ADA, GINA or other applicable laws, or if we may be of help with regard to any other workforce management, employee benefits or compensation matters, please do not hesitate to contact the author of this update, Board Certified Labor and Employment Attorney and Management Consultant Cynthia Marcotte Stamer at 469.767.8872.

About The Author

Management attorney and consultant Cynthia Marcotte Stamer helps businesses, governments and associations solve problems, develop and implement strategies to manage people, processes, and regulatory exposures to meet their business and operational goals and manage legal, operational and other risks. Board certified in labor and employment law by the Texas Board of Legal Specialization, with more than 25 years human resource, employee benefits and management experience, Ms. Stamer helps businesses manage their people-related risks and the performance of their internal and external workforce though appropriate human resources, employee benefit, worker’s compensation, insurance, outsourcing and risk management strategies domestically and internationally. Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble AV-Rating, Ms. Stamer also is a highly regarded author and speaker, who regularly conducts management and other training on a wide range of labor and employment, employee benefit, human resources, internal controls and other related risk management matters.  Her writings frequently are published by the American Bar Association (ABA), Aspen Publishers, Bureau of National Affairs, the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc., Atlantic Information Services, Employee Benefit News, and many others. For a listing of some of these publications and programs, see here. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. Chair of the ABA RPTE Employee Benefit and Other Compensation Committee, a council member of the ABA Joint Committee on Employee Benefits, and the Legislative Chair of the Dallas Human Resources Management Association Government Affairs Committee, she also serves in leadership positions in many human resources, corporate compliance, and other professional and civic organizations. For more details about Ms. Stamer’s experience and other credentials, contact Ms. Stamer, information about workshops and other training, selected publications and other human resources related information, see here or contact Ms. Stamer via telephone at 469.767.8872 or via e-mail here.

Other Helpful Resources & Other Information

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©2012 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press, Inc.  All other  rights reserved. 


Settlement of OFCCP Employment Discrimination Charge Reminder To ARRA, Other Government Contractors Of Heightened Enforcement Risks

September 29, 2012

Federal contractor Nash Finch Co. (Nash Finch) will pay $188,500 in back wages and interest and offer jobs to certain women applicants who the U.S Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) charged Nash rejected for the entry-level position of order selector at the company’s distribution facility in Lumberton, Minnesota under a consent decree approved by an OFCCP administrative law judge this week.

Nash Finch Settlement Highlights

Minneapolis-based and the second-largest wholesale food distributor in the U.S., Nash Finch distributes food products to military commissaries around the world. Since the start of the OFCCP review period on May 1, 2005, Nash Finch has received payments of more than $14 million from the U.S. Department of Defense.

The consent decree resolves an OFCCP administrative action commenced after OFCCP investigators conducted a review of Nash Finch’s employment practices at the Lumberton facility from May 1, 2005, to Dec. 31, 2006. OFCCP asserted that Nash Finch had failed to ensure qualified female job applicants received equal consideration for employment without regard to sex as required by Executive Order 11246. OFCCP filed a complaint with the Labor Department’s Office of Administrative Law Judges on Nov. 30, 2010, alleging that Nash Finch systematically had discriminated against women who applied for jobs as order selectors during a nine-month period in 2006. See Solis v. Nash Finch Co., OFCCP Case Number: 2011-OFC-00004.  Under the consent decree, Nash Finch will pay $188,500 in back pay and interest to the 84 women.  In addition to the financial remedies, the settlement requires Nash Finch to extend job offers to up to 12 women in the original class as order selector positions become available. The company must also submit progress reports to OFCCP for the next two years.

Reflective of the growing emphasis of OFCCP and other federal agencies on audit and enforcement of compliance with federal employment discrimination and affirmative action laws, the Nash Finch charges and resultant settlement highlight that the Obama Administration’s emphasis on employment discrimination and other civil rights laws expansion and enforcement is resulting in increased liability for employers that fail to take appropriate steps to manage compliance related risks.

Settlements Remind ARRA & Other Federal Government Contractors To Act To Defend Against Heightened Requirements & Enforcement

The OFCCP action and settlement against Nash Finch and other recent OFCCP and other employment discrimination law enforcement actions and settlements against government contractors and other U.S. employers remind U.S. businesses that provide services or supplies directly or as subcontractors on federally funded projects or contracts to review and tighten their employment discrimination, affirmative action and other employment practices in light of the Obama Administration’s heightened emphasis on auditing and enforcing OFCCP and other nondiscrimination and affirmative action rules.

While all U.S businesses face heightened exposures to discrimination-related enforcement risks and liability under the Obama Administration’s enforcement policies, businesses providing services or supplies directly or as subcontractors on projects funded in whole or in part by monies provided under the American Recovery and Reinvestment Act of 2009 (“ARRA”) or other federally funded projects or contracts are particularly at risk.  See e.g.,  Leprino Foods To Pay $550K To Settle OFCCP Charge Pre-Hire Screening Test Illegally Discriminated « As EEOC Steps Up ADA Accommodation Enforcement, New DOD Apple App, Other Resources Released; Wal-Mart Settlement Shows ADA Risks When Considering Employee Return To Work Accommodation Requests & Inquiries; Employer Pays $475,000 To Settle ADA Discrimination Lawsuit Challenging Medical Fitness Testing For EMTs, Firefighters & Other Public Safety Worker’s.

Subject to limited exceptions, government contractors providing services or supplies on ARRA or other government funded contracts or projects must comply both with generally applicable employment discrimination requirements and special statutory and contractual nondiscrimination, affirmative action, and recordkeeping requirements applicable government contractors. For instance, federal law generally requires government contractors to comply with the special equal employment opportunity requirements of  Executive Order 11246 (EO 11246); Section 503 of the Rehabilitation Act of 1973 (Section 503); and the Vietnam Veterans’ Readjustment Assistance Act of 1974 (VEVRAA).   Pursuant to these laws, business with the federal government, both contractors and subcontractors, generally must follow a number of statutory and contractual requirements to follow the fair and reasonable standard that they not discriminate in employment on the basis of sex, race, color, religion, national origin, disability or status as a protected veteran. OFCCP generally audits and enforces these requirements. Memo to Funding Recipients: Compliance with Applicable Nondiscrimination and Equal Opportunity Statutes, Regulations, and Executive Orders.  OFCCP has made clear that it will conduct compliance evaluations and host compliance assistance events to ensure that federal contractors comply and are aware of their responsibilities under EO 11246, Section 503 and VEVRAA.  While many government contractors may be tempted to become complacent about OFCCP exposures based on reports of the OFCCP’s relatively low enforcement in the past, see Report Says OFCCP Enforcement Data Show Infrequent Veteran, Disability Bias Findings | Bloomberg BNA recent enforcement data documents OFCCP is getting much more serious and aggressive about auditing and enforcing compliance with its affirmative action and other requirements against government contractors under the Obama Administration.  See, OFCCP Enforcement Data is Available on a New DOL Website. See also, Affirmative Action Update: OFCCP Enforcement Statistics Show Increase in Violations

  • Government Contractors On ARRA Funded Projects Particularly Exposed

When the contract or project in question receives any funding out of the $787 billion of stimulus funding provided by ARRA, special OFCCP rules applicable to ARRA funded projects necessitates that federal contractors exercise special care to understand and meet their responsibilities and manage associated exposures. 

For one thing, the range of businesses required to comply with OFCCP’s equal employment opportunity requirements for government contractors is broader.  Government contractors who sometimes qualify as exempt from certain OFCCP rules may not qualify as exempt when working on ARRA funded projects.  Government contractors that on other types of federally-funded projects might qualify as exempt from certain OFCCP requirements often are unaware that the range of federal contractors required to comply with the OFCCP equal employment opportunity and related rules of ARRA is much broader than often applies for federal projects funded from other sources. Smaller government contractors run the risk of unknowingly incurring liability by mistakenly assuming that the small size of their contract exempts them from otherwise applicable OFCCP requirements. Consequently, before relying on any assumed exemption, a government contractor providing goods or services for ARRA-funded project directly or as a subcontractor should specifically verify the applicability of those exemptions and document that analysis.  

Furthermore, all government contractors on ARRA-funded projects need to understand that they operate subject to heightened compliance and enforcement scrutiny.  The OFCCP particularly scrutinizes government contractor equal employment opportunity and other civil rights requirements on ARRA funded projects.  The “Procedures for Scheduling and Conducting Compliance Evaluations of American Recovery and Reinvestment Act of 2009 (ARRA) Funded Contractors” issued July 7, 2009.  See OFCCP Order No. ADM 0901/SEL the “ARRA Procedures”) subject government contractors on ARRA funded projects to special rules and heightened OFCCP oversight.  OFCCP has established separate scheduling procedures to provide for compliance evaluations of ARRA funded contractors separate from those usually applicable to government contractors because ARRA also obligates OFCCP separately to track its ARRA-related and non-ARRA-related enforcement activities. 

The ARRA Procedures require that Regional, District and Area offices conduct a full compliance evaluation, including a full desk audit and onsite review, of every ARRA funded contractor establishment scheduled, even in the absence of systemic discrimination indicators. Normally applied by OFCCP to non-ARRA government contract reviews, Active Case Management (ACM) procedures normally allow OFCCP to conduct only an abbreviated desk audit in the absence of systematic discrimination indicators in non-ARRA compliance evaluations.  These ACM procedures will not be used in ARRA compliance evaluations. 

Due to the special nature of ARRA, OFCCP also has indicated that the ARRA compliance evaluations will not apply the following scheduling exceptions typically applicable in non-ARRA contract compliance reviews.  For instance, OFCCP ARRA procedures state:

  • No more than 25 establishments per contractor exception: Presently, for contractors with multiple establishments, the Federal Contractor Scheduling System (FCSS) limits the number of compliance evaluations scheduled to 25 new evaluations during a scheduling cycle. The 25-establishment limit does not apply to ARRA compliance evaluations.
  • Two year exception: Traditionally, contractor establishments that have been reviewed by OFCCP are excepted from further review for a 24-month period. Under ARRA scheduling procedures, ARRA funded contractor establishments may be eligible for an ARRA compliance evaluation even if they have been reviewed within the previous 24 months. However, pre-award clearance is not required for contractor establishments reviewed by OFCCP within the past 24 months.

However, ARRA scheduling procedures will apply the following scheduling exceptions:

  • ARRA funded contractor establishments that have undergone an FCSS compliance evaluation will be excepted from scheduling and review under ARRA procedures for six months from the date of the FCSS case closure.
  • ARRA funded contractor establishments that have undergone an ARRA compliance evaluation will not be subject to another ARRA evaluation.
  • ARRA funded contractor establishments that have undergone an ARRA evaluation will also be excepted from scheduling for a standard OFCCP compliance evaluation, pursuant to FCSS, for 24 months from the date of closure of the ARRA compliance evaluation.

ARRA funded contractors also are subject to other special pre-award clearance, pre-award intake, pre-award classification and other special procedures.  The ARRA Procedures also set for special requirements particularly applicable to construction contracts funded by ARRA.

The special procedures and heightened compliance review procedures provided for under the ARRA Procedures indicate that government contractors or subcontractors providing services or supplies on projects funded with ARRA funds will want to place special attention on compliance with OFCCP and other federal equal employment opportunity and other employment regulation compliance.

Government Contractors, Other US Employers Urged To Act To Manage Exposures

In the face of the rising emphasis of OFCCP, the EEOC and other federal and state agencies on these audit and enforcement activities, government contractors and other U.S. businesses should act to position themselves to defend against likely challenges and scrutiny.  All government contractors and other businesses should review and tighten the adequacy of their existing compliance and risk management practices to promote and document compliance.  These efforts should focus on all relevant hiring, recruitment, promotion, compensation, recordkeeping and reporting policies and practices internally, as well as those of any recruiting agencies, subcontractors or other business partners whose actions might impact on compliance. Among other things, these steps should include the following:

  • Government contractors and subcontractors should specifically review their existing or proposed contracts and involvements to identify projects or contracts which may involve federal or state contracts or funding that could trigger responsibility.  In this respect, businesses should conduct well-documented inquiries when proposing and accepting contracts to ensure that potential obligations as a government contractor are not overlooked because of inadequate intake procedures. Businesses also should keep in mind that ARRA and other federal program funds often may be filtered through a complex maze of federal grants or program funding to states or other organizations, which may pass along government contractor status and liability when subcontracting for services as part of the implementation of broader programs.  Since the existence of these obligations often is signaled by contractual representations in the contracts with these parties, careful review of contractual or bid specifications and commitments is essential.  However, it also generally is advisable also to inquire about whether the requested products or services are provided pursuant to programs or contracts subject to these requirements early in the process. 
  • In addition to working to identify contracts and arrangements that are covered by OFCCP or other requirements, government contractors and other businesses also should reconfirm and continuously monitor the specific reporting, affirmative action, and other requirements that apply to any programs that may be subject to OFCCP requirements to ensure that they fully understand and implement appropriate procedures to comply with these conditions as well as pass along  the obligation to make similarly necessary arrangements to any subcontractors or suppliers that the government contractor involves as a subcontractor. 
  • Throughout the course of the contract, the government contractor also should take steps to maintain and file all required reports and monitor and audit operational compliance with these and other requirements.  
  • The organization should develop and administer appropriate procedures for monitoring and investigating potential compliance concerns and maintaining documentation of that activity.  Any known potential deficiencies or complaints should be promptly investigated and redressed with the assistance of qualified counsel in a prompt manner to mitigate potential risks.
  • Documentation should be carefully retained and organized on a real time and continuous basis to faciliate efficiency and effectiveness in completing required reports, monitoring compliance indicators and responding to OFCCP, EEOC or private plaintiff charges as well as other compliance inquiries.
  • Any audit inquiries or charges should be promptly referred to qualified legal counsel for timely evaluation and response.
  • When available and affordable, management should consider securing appropriate employment practices liability coverage, indemnification from business partners and other liability protection and assurance to help mitigate investigagtion and defense costs.
  • Board members or other senior management should include periodic review of compliance in their agenda.

If you have any questions or need help reviewing and updating your organization’s employment, employee benefits, contracting or other risk management or internal controls compliance practices, responding to an OFCCP, EEOC or other government or private plaintiff charge or investigation, or if we may be of assistance with regard to any other workforce or compliance management, employee benefits, compensation matters, please do not hesitate to contact the author of this update, Cynthia Marcotte Stamer.

About The Author

Management attorney and consultant Cynthia Marcotte Stamer helps businesses, governments and associations solve problems, develop and implement strategies to manage people, processes, and regulatory exposures to achieve their business and operational objectives and manage legal, operational and other risks. Board certified in labor and employment law by the Texas Board of Legal Specialization, with more than 20 years human resource and employee benefits experience, Ms. Stamer helps businesses manage their people-related risks and the performance of their internal and external workforce though appropriate human resources, employee benefit, worker’s compensation, insurance, outsourcing and risk management strategies domestically and internationally. Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble AV-Rating, Ms. Stamer also is a highly regarded author and speaker, who regularly conducts management and other training on a wide range of labor and employment, employee benefit, human resources, internal controls and other related risk management matters.  Her writings frequently are published by the American Bar Association (ABA), Aspen Publishers, Bureau of National Affairs, the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc., Atlantic Information Services, Employee Benefit News, and many others. For a listing of some of these publications and programs, see here. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. Chair of the ABA RPTE Employee Benefit and Other Compensation Committee, a council member of the ABA Joint Committee on Employee Benefits, and the Legislative Chair of the Dallas Human Resources Management Association Government Affairs Committee, she also serves in leadership positions in many human resources, corporate compliance, and other professional and civic organizations. For more details about Ms. Stamer’s experience and other credentials, contact Ms. Stamer, information about workshops and other training, selected publications and other human resources related information, see here or contact Ms. Stamer via telephone at 469.767.8872 or via e-mail to cstamer@solutionslawyer.net.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources at www.solutionslawpress.com including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information here.   

©2012 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.

 


$1.25M NLRB Backpay Order Highlights Risks of Mismanaging Union Risks In Health Care & Others M&A Deals

September 23, 2012

California nursing home buyer must pay estimated $1.25 million in backpay and interest, recognize union & hire 50 employees of seller following purchase

Last week’s National Labor Relations Board (NLRB) order requiring the buyer of a California nursing home to pay approximately $1.25 million in backpay and interest, rehire 50 employees and recognize the seller’s union reminders buyers of union-organized businesses of some of the significant risks of mishandling union-related obligations in merger and acquisition, bankruptcy and other corporate transactions under the National Labor Relations Act (NLRA) and other federal labor laws.  

Buyer’s Obligations To Honor Seller’s Collective Bargaining Obligations

Under the NLRA, new owners of a union facility that are “successors” of the seller generally must recognize and bargain with the existing union if “the bargaining unit remains unchanged and a majority of employees hired by the new employer were represented by a recently certified bargaining agent.”  See NLRB v. Burns Sec. Servs., 406 U.S. 272, 281 (1972).   

In assembling its workforce, a successor employer also generally “may not refuse to hire the predecessor’s employees solely because they were represented by a union or to avoid having to recognize a union.” U.S. Marine Corp., 293 NLRB 669, 670 (1989), enfd., 944 F.2d 1305 (7th Cir. 1991).   

Nasaky, Inc. NLRB Order

Last week’s  NLRB Order requires Nasaky, Inc., the buyer of the Yuba Skilled Nursing Center in Yuba City, California, to recognize and honor collective bargaining obligations that the seller Nazareth Enterprises owed the before the sale and rehire and pay backpay and interest to make whole 50 of the seller’s former employees who the NLRB determined Nasaky, Inc. wrongfully refused to hire when it took over the facility from the prior owner, Nazareth Enterprises. 

Before Nasaky, Inc. bought the nursing home, many of the employees at the nursing home were represented by the Service Employees International Union, United Healthcare Workers West (Union).    After Nasaky, Inc. agreed to buy the facility but before it took control of its operations, Nasaky, Inc. advertised in the media for new workers to staff the facility and told existing employees at the facility that they must reapply to have a chance of keeping their jobs under the new ownership.  

When Nasaky, Inc. took operating control of the Facility, facility operations continued as before with the same patients receiving the same services.  The main difference was the workforce.  The new staff included 90 employees in erstwhile bargaining unit positions, of which forty were former employees of the predecessor employer and fifty were newcomers.  Nasaky, Inc. then took the position that the change in the workforce excused it from responsibility for recognizing or bargaining with the Union or honoring the collective bargaining agreement between the Union and seller Nazareth Enterprises.

When the union demanded that Nasaky, Inc. recognize the Union and honor the Union’s collective bargaining agreement with Nazareth Enterprises, Nasaky, Inc. refused.  Instead, Nasaky, Inc. notified the union that it would not allow the Union on its premises, would not honor the Union’s collective bargaining agreement with the seller, and did not accept any of the predecessor’s terms and conditions of employment.  The Union then filed charges with the NLRB, charging that Nazareth Enterprises had breached its obligations as a successor under the NLRA.  

After NLRB Regional Director Joseph F. Frankl agreed and issued a complaint, California Administrative Law Judge Gerald Etchingham found all the allegations true based on a two-day hearing.  He rejected all of Nasaky’s explanations for why it declined to hire most of those who had worked for the previous employer.  See ALJ Decision.  Since Nasaky, Inc did not file exceptions, the NLRB ordered Nasaky, Inc. immediately to recognize and bargain with the Union, hire the former employees and make them whole.  The amount of backpay and interest is expected to approximate $1.25 million.  

Managing Labor Exposures In Business Transactions

The NLRB’s order against Nasaky, Inc. highlights some of the business and operational risks that buyers and sellers can face if labor-management relations are misperceived or mismanaged in connection with business transactions.  Because the existence of collective bargaining agreements or other labor obligations can substantially affect the operational flexibility of a buyer, buyers need to investigate and carefully evaluate the potential existence and nature of their obligations as part of their due diligence strategy before the transaction.  A well-considered understanding of whether the structure of the transaction is likely to result in the buyer being considered a successor for purposes of union organizing and collective bargaining obligations also is very important so that the buyer and seller can properly appreciate and deal with any resulting responsibilities.

Beyond the potential duty to recognize a seller’s collective bargaining obligations, buyers and sellers also should consider the potential consequences of the proposed transaction on severance, pension, health, layoff and recall and other rights and obligations that may arise.  At minimum, the existence of these responsibilities and their attendant costs are likely to impact the course of the negotiations.

When a worksite is union organized, for instance, additional obligations may arise in the handling of reductions in force or other transactions as a result of the union presence.  For example, in addition to otherwise applicable responsibilities applicable to non-union affected transaction, the Worker Adjustment Retraining Act (WARN) and other plant closing laws and/or collective bargaining agreements may impose special notification or other requirements before a reduction in force or other transaction related activities. 

Similarly, the existence of collective bargaining agreements also may trigger obligations for one or both parties to engage in collective bargaining over contemplated changes in terms and conditions of employment, to provide severance, to accellerate or fund severance, benefits or other obligations, to provide continued health or other coverage, to honor seniority, recall or other rights or deal with a host of other special contractual obligations.

Where the collective bargaining arrangements of the seller currently or in the past have included obligations to contribute to a multiemployer, collectively bargained pension or welfare plan, the buyer and seller also need to consider both the potential for withdrawal liability or other obligations and any opportunities to minimize these exposures in structuring the allocation of the arrangement. In this case, both parties need to recognize that differences exist between the federals for determining when successor liability results under the withdrawal liability rules than typically apply other labor and employment law purposes.  While buyers and sellers often presume that the stock versus assess sale distinction that typically applies for many other legal purposes will apply, this can be an expensive mistake in the case of determining a buyer’s obligation to honor the seller’s collective bargaining obligations post deal.  Likewise, buyers can be exposed to multiemployer successor liability from asset transactions, although it may be possible to mitigate or avoid such liabilities by incorporating appropriate representations in the sale documents or through other steps.  Since these multiemployer withdrawal and contribution liabilities generally attach on a controlled group basis, both parties need to properly appreciate and address these concerns early in the transaction to mitigate their risks and properly value the transaction.

In light of these and other potential labor-related risks that may affect corporate and other business transactions, parties contemplating or participating in these transactions are urged to engage and consult with competent legal counsel with specific experience in such labor management relations and multiemployer benefit plan matters early in the process.

About The Author

Management attorney and consultant Cynthia Marcotte Stamer helps businesses, governments and associations solve problems, develop and implement strategies to manage people, processes, and regulatory exposures to achieve their business and operational objectives and manage legal, operational and other risks. Board certified in labor and employment law by the Texas Board of Legal Specialization, with more than 25 years human resource and employee benefits experience, Ms. Stamer helps businesses manage their people-related risks and the performance of their internal and external workforce though appropriate labor and employment, human resources, employee benefit, worker’s compensation, insurance, outsourcing and risk management strategies domestically and internationally. Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble AV-Rating, Ms. Stamer’s experience includes significant experience  advising and representing buyers, sellers, their commonly controlled and affiliated entities, lenders, bankruptcy trustees and committees and others regarding labor-management relations, employment, compensation, employee benefits and other human resources related exposures, strategies and negotiations.  She also has served as counsel to multiemployer and single employer pension, profit-sharing and other retirement, health and welfare, severance and other plans and their fiduciaries and sponsors in relation to these and other transactions.

Ms. Stamer also is a highly regarded author and speaker, who regularly conducts management and other training on a wide range of labor and employment, employee benefit, human resources, internal controls and other related risk management matters.  Her writings frequently are published by the American Bar Association (ABA), Aspen Publishers, Bureau of National Affairs, the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc., Atlantic Information Services, Employee Benefit News, and many others. For a listing of some of these publications and programs, see here. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. Chair of the ABA RPTE Employee Benefit and Other Compensation Committee, a council member of the ABA Joint Committee on Employee Benefits, and the Legislative Chair of the Dallas Human Resources Management Association Government Affairs Committee, she also serves in leadership positions in many human resources, corporate compliance, and other professional and civic organizations. For more details about Ms. Stamer’s experience and other credentials, contact Ms. Stamer, information about workshops and other training, selected publications and other human resources related information, see here or contact Ms. Stamer via telephone at 469.767.8872 or via e-mail to cstamer@solutionslawyer.net.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources at www.solutionslawpress.com including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information here.   

©2012 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.

 


As EEOC Steps Up ADA Accommodation Enforcement, New DOD Apple App, Other Resources Released

September 18, 2012

With the Equal Employment Opportunity Commission (EEOC) and other federal agencies prioritizing disability discrimination law enforcement, businesses and individuals looking to find solutions to help accommodate persons with disabilities may find a new free app for Apple Devices from the Department of Defense (DOD) Computer/Electronic Accommodations Program helpful. 

New DOD Accommodation Apple App & Other Accommodation Aids

The DOD Apple application is an example of the many new resources that the federal government is providing to promote compliance with disability discrimination laws and to help people with disabilities under the Obama Administration. 

The DOD Apple application now available in the iTunes App Store lets users browse the latest news and tips on assistive technology, scan CAP’s calendar of events and stay connected to the disability community. DOD says an Android version is coming soon. 

CAP works to make the Federal Government a model employer of people with disabilities by providing job accommodations and equal access to electronic and information technology.  With disabilities and other discrimination law compliance audit and enforcement rising, this new application provides another timely resource for government contractors and agencies, and other businesses looking to provide accommodations and manage disability risks.

The DOD application is just one of many emerging training and other tools that the agencies are rolling out to promote employment and other opportunities for people with disabilities.  The Federal Government is devoting increasing resources to educating the disabled about resources including employment discrimination protections and other aids.  The October 10  Work Incentive Seminar Event webinar is another example.  To be held on October 10, 2012 from 3 – 4:30 p.m. Eastern Time, the webinar is for people who receive Social Security disability benefits and want to learn how the Ticket to Work program can help them earn money and become financially independent. It also will discuss  writing a resume, job interview tips, whether or not to discuss your disability with a potential employer and tips for on the job success. Officials invites interested parties to register online or call 1-866-968-7842 (V) or 1-866-833-2967 (TTY/TDD).

Rising Liability & Enforcement Make Accommodation & Other Disability Law Risk Management Critical

Managing disability risks and meeting accommodation obligations is increasingly important as US government agencies place growing emphasis on enforcing disability discrimination laws and regulations that increasingly result in significant liability for U.S. businesses.

For instance, in June, 2012, the U.S. Justice Department announced a $10,250,000  settlement with JPI Construction L.P. (JPI) and six other JPI firms is the largest-ever disability-based housing discrimination settlement.  The settlement resolves Justice Department charges the JPI and its affiliates illegally discriminated on the basis of disability in the design and construction of multifamily housing complexes.

Under the settlement of disability charges initiated against JPI a few years ago, JPI will pay $10,250,000 into an accessibility fund to update properties so they comply with the Americans with Disabilities Act and the Fair Housing Act (FHA), and to increase the availability of housing that is accessible to people with disabilities.

The record settlement follows the reaffirmation of the Obama Administration’s continuing committment to find and punish companies that illegally discriminate or fail to provide required accommodations in violation of Federal disability discrimination laws made by President Obama and others to mark the 13th Anniversary of the June 22, 1999 Supreme Court decision in Olmstead v. L.C

As part of that anniversary celebration of Olmstead, the Obama Administration reaffirmed its continuing commitment to fight disability discriminated and touted the success of its “significant progress continuing to enforce Olmstead as well as more broadly helping to level the playing field for people with disabilities.”

In Olmstead, the Supreme Court ruled in that the unjustified institutional isolation of people with disabilities is a form of unlawful discrimination under the ADA. 

In marking the 13th anniversary of this decision, President Obama said, “As we mark the anniversary of this historic civil rights decision, we reaffirm our commitment to fighting discrimination, and to addressing the needs and concerns of those living with disabilities.”

In reaffirming this commitment, the Administration highlighted its past and continuing efforts to enforce disability discrimination laws, as well as other activities to support individuals with disability. 

As part of its significant commitment to disability discrimination enforcement, the Civil Rights Division at the Department has been involved in more than 40 Olmstead matters in 25 states.   Recently, in Virginia, the Department entered into a landmark settlement agreement with the Commonwealth, which will shift Virginia’s developmental disabilities system from one heavily reliant on large, state-run institutions to one focused on safe, individualized, and community-based services that promote integration, independence and full participation by people with disabilities in community life. The agreement expands and strengthens every aspect of the Commonwealth’s system of serving people with intellectual and developmental disabilities in integrated settings, and it does so through a number of services and supports.  The Department has a website dedicated to Olmstead enforcement, which includes links to settlements, briefs, findings letters, and other materials. The settlement agreements are a reminder that private businesses and state and local government agencies alike should exercise special care to prepare to defend their actions against potential disability or other Civil Rights discrimination challenges.  All organizations, whether public or private need to make sure both that their organizations, their policies, and people in form and in action understand and comply with current disability and other nondiscrimination laws.  When reviewing these responsibilities, many state and local governments and private businesses may need to update their understanding of current requirements.  The scope and applicability of disability and various other federal nondiscrimination and other laws have been expanded or modified in recent years by statutory, regulatory or enforcement changes. 

These Justice Department efforts also are reflected in the companion enforcement efforts to investigate and prosecute disability discrimination by the Labor Department Equal Employment Opportunity Commission in employment, the HUD and related areas, the Department of Education in education and related fields and a host of other agencies.

The enforcement of disability discrimination and accommodation requirements in the employment space is even more zealous making big dollar EEOC and private plaintiff judgements and settlements increasingly common.  See, e.g. Employer Pays $475,000 To Settle ADA Discrimination Lawsuit Challenging Medical Fitness Testing For EMTs, Firefighters & Other Public Safety Worker’s.

 Where the entity is a private or government agency that is a government contractor or receiving other federal funds or grants, compliance with the ADA and other nondiscrimination and civil rights laws is particularly important as the contracts or regulations pursuant to which these funds are granted typically require compliance with these and other special nondiscrimination rules.  In the case of funds provided under the 2009 Stimulus Bill, the scope of businesses subject to these requirements and the likelihood of audits was specifically increased in many ways, making recipients of these funds at particular risk for failing to fulfill requirements.

These Federal enforcement activities are further heightened by rising private litigation of disability claims.  These public and private actions are encouraged by changes made by Congress to the ADA, which make it easier for plaintiff’s bringing disabilities claims to win, as well as the proactive agenda of the Obama Administration in enforcing disability discrimination laws.

In light of these continuing enforcement efforts, businesses should continue and heighten their diligence against possible disability discrimination exposures by strengthening policies, practices, training and documentation to keep up compliance and to position to defend against possible charges.

About The Author

Management attorney and consultant Cynthia Marcotte Stamer helps businesses, governments and associations solve problems, develop and implement strategies to manage people, processes, and regulatory exposures to achieve their business and operational objectives and manage legal, operational and other risks. Board certified in labor and employment law by the Texas Board of Legal Specialization, with more than 20 years human resource and employee benefits experience, Ms. Stamer helps businesses manage their people-related risks and the performance of their internal and external workforce though appropriate human resources, employee benefit, worker’s compensation, insurance, outsourcing and risk management strategies domestically and internationally. Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble AV-Rating, Ms. Stamer also is a highly regarded author and speaker, who regularly conducts management and other training on a wide range of labor and employment, employee benefit, human resources, internal controls and other related risk management matters.  Her writings frequently are published by the American Bar Association (ABA), Aspen Publishers, Bureau of National Affairs, the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc., Atlantic Information Services, Employee Benefit News, and many others. For a listing of some of these publications and programs, see here. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. Chair of the ABA RPTE Employee Benefit and Other Compensation Committee, a council member of the ABA Joint Committee on Employee Benefits, and the Legislative Chair of the Dallas Human Resources Management Association Government Affairs Committee, she also serves in leadership positions in many human resources, corporate compliance, and other professional and civic organizations. For more details about Ms. Stamer’s experience and other credentials, contact Ms. Stamer, information about workshops and other training, selected publications and other human resources related information, see here or contact Ms. Stamer via telephone at 469.767.8872 or via e-mail to  cstamer@solutionslawyer.net.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources at www.solutionslawpress.com including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information here.   

©2012 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.


Wal-Mart Settlement Shows ADA Risks When Considering Employee Return To Work Accommodation Requests & Inquiries

August 23, 2012

From handling requests for light duty or other modifications follow a leave to investigating the medical justification for leaves or the fitness of an employee to return to work following a medical absence, employers need to use care to manage disability discrimination exposures.

Today’s announcement by the  Equal Employment Opportunity Commission (EEOC) that Wal-Mart Stores, Inc. and Wal-Mart Stores East, L.P.  (Wal-Mart) will pay $50,000 in back pay and damages to settle an EEOC disability discrimination lawsuit highlights the potential disability discrimination risks that employers can face when deciding not to provide a requested accommodation to a worker returning from medical leave while other recent enforcement actions show ADA risks from simply making medical inquiries to a worker on or returning from medical leave.

In its lawsuit against Wal-Mart, Case No. 2:11-CV-00834, filed in the U.S. District Court for the District of New Mexico, the EEOC charged that a Carlsbad, N.M Wal-Mart store violated the Americans With Disabilities Act (ADA) by firing a part-time sales clerk, Marcia Arney because the store refused to provide temporary accommodations ordered by her physician following a period of medical leave.

According to the EEOC lawsuit, when Arney, a 22-year Wal-Mart employee, showed the store manager a note from her doctor requesting an accommodation involving periodic breaks off her feet, the manager refused to return her to her job unless she obtained a medical release with no restrictions. The EEOC claims that had Wal-Mart inquired further, it would have known the accommodation need was temporary and in any case, that Wal-Mart easily could have accommodated the restriction. 

Under the consent decree settling the suit, Wal-Mart will conduct annual live ADA training of management  officials at its Carlsbad store and post a notice on its agreement with the EEOC so that employees are aware  of procedures for reporting disability discrimination. Wal-Mart also committed to not require  disabled workers to produce a full release from their doctor upon returning  from a medical leave. Further, Wal-Mart agreed to engage in an interactive process with disabled employees to find a  reasonable accommodation to assist them in performing their jobs and to report future requests for accommodation, as well as charges and lawsuits alleging disability discrimination to the EEOC for the duration of the decree.

Title I of the ADA prohibits employers from discriminating against individuals on the basis of disability in various aspects of employment.  The ADA’s provisions on disability-related inquiries and medical examinations reflect Congress’s intent to protect the rights of applicants and employees to be assessed on merit alone, while protecting the rights of employers to make sure that individuals in the workplace can efficiently perform the essential functions of their jobs.   An employer generally violates the ADA if it requires its employees to undergo medical examinations or submit to disability-related inquiries that are not related to how the employee performs his or her job duties, or if it requires its employees to disclose overbroad medical history or medical records.  Title I of the ADA also generally requires employers to make  reasonable accommodations to employees’ and applicants’ disabilities as long as  this does not pose an undue hardship or the employer the employer otherwise proves employing a disabled person with reasonable accommodation could not eliminate significant safety concerns.  Employers generally bear the burden of proving these or other defenses.  Employers are also prohibited from excluding individuals with disabilities unless they show that the exclusion is consistent with business necessity and they are prohibited from retaliating against employees for opposing practices contrary to the ADA.  Violations of the ADA can expose businesses to substantial liability.

As reflected by the Wal-Mart, violations of the employment provisions of the ADA may be prosecuted by the EEOC or by private lawsuits and can result in significant judgments.  Disabled employees or applicants that can prove they fully were denied reasonable accommodations or otherwise subjected to prohibited disability discrimination under the ADA generally can recover actual damages, attorneys’ fees, and up to $300,000 of exemplary damages (depending on the size of the employer).   

The lawsuit against Wal-Mart is part of a wave of lawsuits in which the EEOC or other agencies under the Obama Administration are aggressively challenging medical examination and other medical screenings by private and public employers.  In the Wal-Mart case, the suit challenged an employer’s refusal to provide requested accommodations.  In other cases, however, the EEOC or other agencies under the Obama Administration also have challenged medical inquiries made by an employer to employees during or returning from leave.  Both types of suits send clear signals that employers should use care in making medical inquiries and responding to requests for accommodation from employees taking or returning from medical leaves.  See, e.g., Employer Pays $475,000 To Settle ADA Discrimination Lawsuit Challenging Medical Fitness Testing For EMTs, Firefighters & Other Public Safety Worker’s.

To help mitigate the expanded employment liability risks , businesses generally should act to manage their exposures.  Management needs to recognize the likely need to defend medical inquiries, decisions to refuse accommodation requests or other similar actions that arise when dealing with employees taking or returning from medical leave due to a disability, illness or injury.  Employers need to critically check and document the legitimate business justification for making a medical inquiry or refusing a requested accommodation based on a well-documented investigation and analysis tailored to the specific situation of each requesting employee.

Businesses also should consider tightening their documentation regarding their procedures and processes governing the  collection and handling records and communications that may contain information that could be helpful or hurtful in the event of a discrimination charge.  Businesses need to ensure that all required records and statistics are collected.  In addition, businesses also should consider strengthening record creation and retention efforts to help preserve other evidence that could be invaluable to defending charges and change the way that decisions are made and documented to position their organizations to more effectively demonstrate the defensibility of their employment and other business activities against potential nondiscrimination charges.

As part of this process, businesses also should carefully review their employment records, group health plan, family leave, disability accommodation, and other existing policies and practices to comply with, and manage exposure under the new genetic information nondiscrimination and privacy rules enacted as part of the Genetic Information and Nondiscrimination Act (GINA) signed into law by President Bush on May 21, 2008.  Effective November 21, 2009, Title VII of GINA amends the Civil Rights Act to prohibit employment discrimination based on genetic information and restricts the ability of employers and their health plans to require, collect or retain certain genetic information. Under GINA, employers, employment agencies, labor organizations and joint labor-management committees face significant liability for violating the sweeping nondiscrimination and confidentiality requirements of GINA concerning their use, maintenance and disclosure of genetic information. Employees can sue for damages and other relief like currently available under Title VII of the Civil Rights Act of 1964 and other nondiscrimination laws.  For instance, GINA’s employment related provisions include rules that will:

  • Prohibit employers and employment agencies from discriminating based on genetic information in hiring, termination or referral decisions or in other decisions regarding compensation, terms, conditions or privileges of employment;
  • Prohibit employers and employment agencies from limiting, segregating or classifying employees so as to deny employment opportunities to an employee based on genetic information;
  • Bar labor organizations from excluding, expelling or otherwise discriminating against individuals based on genetic information;
  • Prohibit employers, employment agencies and labor organizations from requesting, requiring or purchasing genetic information of an employee or an employee’s family member except as allowed by GINA to satisfy certification requirements of family and medical leave laws, to monitor the biological effects of toxic substances in the workplace or other conditions specifically allowed by GINA;
  • Prohibit employers, labor organizations and joint labor-management committees from discriminating in any decisions related to admission or employment in training or retraining programs, including apprenticeships based on genetic information;
  • Mandate that in the narrow situations where limited cases where genetic information is obtained by a covered entity, it maintain the information on separate forms in separate medical files, treat the information as a confidential medical record, and not disclosure the genetic information except in those situations specifically allowed by GINA;
  • Prohibit any person from retaliating against an individual for opposing an act or practice made unlawful by GINA; and
  • Regulate the collection, use, access and disclosure of genetic information by employer sponsored and certain other health plans.

These employment provisions of GINA are in addition to amendments to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Employee Retirement Income Security Act of 1974 (ERISA), the Public Health Service Act, the Internal Revenue Code of 1986, and Title XVIII (Medicare) of the Social Security Act that are effective for group health plan for plan years beginning after May 20, 2009.

If you have any questions or need help reviewing and updating your organization’s employment and/or employee practices in response to the ADAAA, GINA or other applicable laws, or if we may be of assistance with regard to any other workforce management, employee benefits or compensation matters, please do not hesitate to contact the author of this update, Cynthia Marcotte Stamer.

About The Author

Management attorney and consultant Cynthia Marcotte Stamer helps businesses, governments and associations solve problems, develop and implement strategies to manage people, processes, and regulatory exposures to achieve their business and operational objectives and manage legal, operational and other risks. Board certified in labor and employment law by the Texas Board of Legal Specialization, with more than 20 years human resource and employee benefits experience, Ms. Stamer helps businesses manage their people-related risks and the performance of their internal and external workforce though appropriate human resources, employee benefit, worker’s compensation, insurance, outsourcing and risk management strategies domestically and internationally. Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble AV-Rating, Ms. Stamer also is a highly regarded author and speaker, who regularly conducts management and other training on a wide range of labor and employment, employee benefit, human resources, internal controls and other related risk management matters.  Her writings frequently are published by the American Bar Association (ABA), Aspen Publishers, Bureau of National Affairs, the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc., Atlantic Information Services, Employee Benefit News, and many others. For a listing of some of these publications and programs, see here. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. Chair of the ABA RPTE Employee Benefit and Other Compensation Committee, a council member of the ABA Joint Committee on Employee Benefits, and the Legislative Chair of the Dallas Human Resources Management Association Government Affairs Committee, she also serves in leadership positions in many human resources, corporate compliance, and other professional and civic organizations. For more details about Ms. Stamer’s experience and other credentials, contact Ms. Stamer, information about workshops and other training, selected publications and other human resources related information, see here or contact Ms. Stamer via telephone at 469.767.8872 or via e-mailto  cstamer@solutionslawyer.net

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources at www.solutionslawpress.com including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information here.   

©2012 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.

 


Employer Pays $475,000 To Settle ADA Discrimination Lawsuit Challenging Medical Fitness Testing For EMTs, Firefighters & Other Public Safety Worker’s

August 13, 2012

Employers that require employees to submit to medical examinations, question employees about physician or mental conditions or disabilities while on medical leave or for other fitness for duty assessments, or engage in other similar activities should evaluate the defensibility of those practices in light of the growing challenges to these and other employee screening practices by the Obama Administration and private plaintiff attorneys like the Justice Department disability discrimination complaint that lead to a $475,000 settlement against Baltimore County, Maryland.

Baltimore County Nailed For Health Screening of Public Safety Workers

On August 7, 2012, the Justice Department announced that Baltimore County, Maryland will pay $475,000 and change its hiring procedures to resolve a Justice Department lawsuit filed that charged the county violated the Americans with Disabilities Act (ADA) by requiring employees to submit to medical examinations and disability-related inquiries without a proper reason, and by excluding applicants from emergency medical technician (EMT) positions because of their diabetes.  The prosecution is notable both for the Justice Department’s challenge of health screenings of EMTs and other workers in key safety positions generally as well as the Justice Department’s challenges to the employer’s medical inquiries to workers on medical leave.

Title I of the ADA prohibits employers from discriminating against individuals on the basis of disability in various aspects of employment.  The ADA’s provisions concerning disability-related inquiries and medical examinations reflect Congress’s intent to protect the rights of applicants and employees to be assessed on merit alone, while protecting the rights of employers to ensure that individuals in the workplace can efficiently perform the essential functions of their jobs.  An employer generally violates the ADA if it requires its employees to undergo medical examinations or submit to disability-related inquiries that are not related to how the employee performs his or her job duties, or if it requires its employees to disclose overbroad medical history or medical records.  Title I of the ADA also generally requires employers to make  reasonable accommodations to employees’ and applicants’ disabilities as long as  this does not pose an undue hardship or the employer the employer otherwise proves employing a disabled person with reasonable accommodation could not eliminate significant safety concerns.  Employers generally bear the burden of proving these or other defenses.  Employers are also prohibited from excluding individuals with disabilities unless they show that the exclusion is consistent with business necessity and they are prohibited from retaliating against employees for opposing practices contrary to the ADA.  Violations of the ADA can expose businesses to substantial liability.

As reflected by the Baltimore County settlement, violations of the employment provisions of the ADA may be prosecuted by the EEOC or by private lawsuits and can result in significant judgments.  Employees or applicants that can prove they were subjected to prohibited disability discrimination under the ADA generally can recover actual damages, attorneys’ fees, and up to $300,000 of exemplary damages (depending on the size of the employer).   

The U.S. Justice Department lawsuit against Baltimore County, Maryland is one in a growing series of lawsuits in which the Justice Department or Equal Employment Opportunity Commission (EEOC) is aggressively challenging medical examination and other medical screenings by private and public employers.  In its lawsuit against the County, the Justice Department complaint identified 10 current and former police officers, firefighters, EMTs, civilian employees and applicants who were allegedly subjected to inappropriate and intrusive medical examinations and/or other disability-based discrimination.  Justice Department officials claimed the County required some employees to undergo medical examinations or respond to medical inquiries that were unrelated to their ability to perform the functions of their jobs.  The complaint also alleged the County required employees to submit to medical examinations that were improperly timed, such as requiring an employee who was on medical leave and undergoing medical treatment to submit to a medical exam even though the employee was not attempting to return to work yet.

According to the complaint, numerous affected employees – some of whom had worked for the County for decades – submitted to the improper medical exams for fear of discipline or termination if they refused.  The complaint also alleges that the county retaliated against an employee who tried to caution against the unlawful medical exams and refused to hire two qualified applicants for EMT positions because they had diabetes.

 In the proposed consent decree filed on August 7, 2012 and awaiting District Court approval, the County seeks to resolve the lawsuit by agreeing to:

  • Pay $475,000 to the complainants and provide additional work-related benefits (including retirement benefits and back pay, plus interest);
  • Adopt new policies and procedures regarding the administration of medical examinations and inquiries;
  • Refrain from using the services of the medical examiner who conducted the overbroad medical examinations in question;
  • End the automatic exclusion of job applicants who have insulin-dependent diabetes mellitus; and
  • Give ADA training to all current supervisory employees and all employees who participate in making personnel decisions.

 Obama Administration Aggressively Enforcing & Interpreting Employment & Other Disability Discrimination Laws 

The Baltimore County suit is reflective of the aggressive emphasis that the Obama Administration is placing on challenging employers that require employees to undergo medical screening, respond to medical inquiries or engage in other practices that the EEOC, Justice Department or other Obama Administration officials under Title I of the ADA, as well as its heavy emphasis upon enforcement of the ADA and other disability discrimination laws against U.S. businesses and state and local government agencies generally. 

The Justice Department action against Baltimore County is part of the Obama Administration’s sweeping effort to enforce employment and other disability discrimination laws against businesses and state and local government agencies alike.  While the Administration’s disability law enforcement reaches broadly, disability discrimination enforcement is particularly notable in the area of employment law.  This enforcement targets both public employers like Baltimore County, and private employers.  In the private employer arena, for instance, the EEOC earlier this year sued Wendy’s franchisee, CTW L.L.C., (Texas Wendy’s) for allegedly violating the ADA by denying employment to a hearing-impaired applicant.  In its suit against Texas Wendy’s, the EEOC  seeks injunctive relief, including the formulation of policies to prevent and  correct disability discrimination as well as an award of lost wages and compensatory damages for Harrison  and punitive damages against CTW L.L.C.   In the suit, the EEOC charged that the general manager of a Killeen,  Texas Wendy’s refused to hire Michael Harrison, Jr. for a cooker position,  despite his qualifications and experience, upon learning that Harrison is  hearing-impaired.

According to the EEOC, Harrison, who had previously worked for a different fast-food franchise for over two  years, was denied hire by the general manager.  Harrison said that after successfully  interviewing with the Wendy’s shift manager, he attempted to complete the  interview process by interviewing with Wendy’s general manager via Texas Relay,  a telephonic system used by people with hearing impairments. Harrison’s told  the EEOC that during the call he was told by the general manager that “there is  really no place for someone we cannot communicate with.”

As illustrated by the suits against Baltimore County, Texas Wendy’s and many other public and private employers, employers must exercise care when making hiring, promotion or other employment related decisions relating to persons with hearing or other conditions that could qualify as a disability under the ADA.  

Defending disability discrimination charges has become more complicated due to both the aggressive interpretation and enforcement of the ADA under the Obama Administration and amendments to the ADA that aid private plaintiffs, the EEOC, the Justice Department and others to prove their case.  Provisions of the ADA Amendments Act (ADAAA) that expand the definition of “disability” under the ADA,   signed into law on September 25, 2008, broadened the definition of “disability” for purposes of the disability discrimination prohibitions of the ADA to make it easier for an individual seeking protection under the ADA to establish that a person has a disability within the meaning of the ADA.  The ADAAA retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, provisions of the ADAAA that took effect January 1, 2009 change the way that these statutory terms should be interpreted in several ways. Most significantly, the ADAAA:

  • Directs EEOC to revise that portion of its regulations defining the term “substantially limits;”
  • Expands the definition of “major life activities” by including two non-exhaustive lists: (1) The first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating); and (2) The second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”);
  • States that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
  • Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
  • Changes the definition of “regarded as” so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor; and
  • Provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.

The ADAAA also emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis. In adopting these changes, Congress expressly sought to overrule existing employer-friendly judicial precedent construing the current provisions of the ADA and to require the EEOC to update its existing guidance to confirm with the ADAAA Amendments.  Under the leadership of the Obama Administration, the EEOC and other federal agencies have embraced this charge and have significantly stepped up enforcement of the ADA and other federal discrimination laws.

The ADAAA amendments coupled with the Obama Administration’s emphasis on enforcement make it likely that businesses generally will face more disability claims from a broader range of employees and will possess fewer legal shields to defend themselves against these claims. These changes will make it easier for certain employees to qualify as disabled under the ADA.  Consequently, businesses should act strategically to mitigate their ADA exposures in anticipation of these changes. Given the Obama Administration’s well-documented, self-touted activism of the EEOC, Justice Department and other federal agencies in prosecuting disability discrimination and promoting a pro-disability enforcement agenda, businesses are encouraged to review and tighten their employment disability discrimination compliance procedures and documentation. 

Likewise, businesses should be prepared for the EEOC and the courts to treat a broader range of disabilities, including those much more limited in severity and life activity restriction, to qualify as disabling for purposes of the Act. Businesses should assume that a greater number of employees with such conditions are likely to seek to use the ADA as a basis for challenging hiring, promotion and other employment decisions.  For this reason, businesses should exercise caution to carefully document legitimate business justification for their hiring, promotion and other employment related decisions about these and other individuals who might qualify as disabled taking into account both the broadened disability definition and the aggressive interpretative stance of the Obama Administration. Businesses also generally should tighten job performance and other employment recordkeeping to promote the ability to prove nondiscriminatory business justifications for the employment decisions made by the businesses.

Businesses also should consider tightening their documentation regarding their procedures and processes governing the  collection and handling records and communications that may contain information regarding an applicant’s physical or mental impairment, such as medical absences, worker’s compensation claims, emergency information, or other records containing health status or condition related information.  The ADA generally requires that these records be maintained in separate confidential files and disclosed only to individuals with a need to know under circumstances allowed by the ADA. 

As part of this process, businesses also should carefully review their employment records, group health plan, family leave, disability accommodation, and other existing policies and practices to comply with, and manage exposure under the new genetic information nondiscrimination and privacy rules enacted as part of the Genetic Information and Nondiscrimination Act (GINA) signed into law by President Bush on May 21, 2008.  Effective November 21, 2009, Title VII of GINA amends the Civil Rights Act to prohibit employment discrimination based on genetic information and restricts the ability of employers and their health plans to require, collect or retain certain genetic information. Under GINA, employers, employment agencies, labor organizations and joint labor-management committees face significant liability for violating the sweeping nondiscrimination and confidentiality requirements of GINA concerning their use, maintenance and disclosure of genetic information. Employees can sue for damages and other relief like currently available under Title VII of the Civil Rights Act of 1964 and other nondiscrimination laws.  For instance, GINA’s employment related provisions include rules that will:

  • Prohibit employers and employment agencies from discriminating based on genetic information in hiring, termination or referral decisions or in other decisions regarding compensation, terms, conditions or privileges of employment;
  • Prohibit employers and employment agencies from limiting, segregating or classifying employees so as to deny employment opportunities to an employee based on genetic information;
  • Bar labor organizations from excluding, expelling or otherwise discriminating against individuals based on genetic information;
  • Prohibit employers, employment agencies and labor organizations from requesting, requiring or purchasing genetic information of an employee or an employee’s family member except as allowed by GINA to satisfy certification requirements of family and medical leave laws, to monitor the biological effects of toxic substances in the workplace or other conditions specifically allowed by GINA;
  • Prohibit employers, labor organizations and joint labor-management committees from discriminating in any decisions related to admission or employment in training or retraining programs, including apprenticeships based on genetic information;
  • Mandate that in the narrow situations where limited cases where genetic information is obtained by a covered entity, it maintain the information on separate forms in separate medical files, treat the information as a confidential medical record, and not disclosure the genetic information except in those situations specifically allowed by GINA;
  • Prohibit any person from retaliating against an individual for opposing an act or practice made unlawful by GINA; and
  • Regulate the collection, use, access and disclosure of genetic information by employer sponsored and certain other health plans.

These employment provisions of GINA are in addition to amendments to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Employee Retirement Income Security Act of 1974 (ERISA), the Public Health Service Act, the Internal Revenue Code of 1986, and Title XVIII (Medicare) of the Social Security Act that are effective for group health plan for plan years beginning after May 20, 2009.  Added together, employment related disability discrimination are large and growing, meriting stepped up risk assessment and management.

Obama Administration Also Aggressively Prosecutes Disability Discrimination In Other Business Operations

Guarding against disability discrimination in employment is not the only area that businesses need to prepare to defend against.  The Obama Administration also has trumpeted its commitment to the aggressive enforcement of the public accommodation provisions of the ADA and other federal disability discrimination laws.  In June, 2012, for instance, President Obama himself made a point of reaffirming his administration’s “commitment to fighting discrimination, and to addressing the needs and concerns of those living with disabilities.”

As part of its significant commitment to disability discrimination enforcement, the Civil Rights Division at the Justice Department has aggressively enforced the public accommodation provisions of the ADA and other federal disability discrimination laws against state agencies and private businesses that it perceives to have improperly discriminated against disabled individuals.  For instance, the Justice Department entered into a landmark settlement agreement with the Commonwealth of Virginia, which will shift Virginia’s developmental disabilities system from one heavily reliant on large, state-run institutions to one focused on safe, individualized, and community-based services that promote integration, independence and full participation by people with disabilities in community life. The agreement expands and strengthens every aspect of the Commonwealth’s system of serving people with intellectual and developmental disabilities in integrated settings, and it does so through a number of services and supports.  The Justice Department has a website dedicated to disabilities law enforcement, which includes links to settlements, briefs, findings letters, and other materials. The settlement agreements are a reminder that private businesses and state and local government agencies alike should exercise special care to prepare to defend their actions against potential disability or other Civil Rights discrimination challenges.  All organizations, whether public or private need to make sure both that their organizations, their policies, and people in form and in action understand and comply with current disability and other nondiscrimination laws.  When reviewing these responsibilities, many state and local governments and private businesses may need to update their understanding of current requirements.  Statutory, regulatory or enforcement changes have expanded the scope and applicability of disability and various other federal nondiscrimination and other laws and risks of charges of discrimination. 

To help mitigate the expanded employment liability risks created by the ADAAA amendments, businesses generally should act cautiously when dealing with applicants or employees with actual, perceived, or claimed physical or mental impairments to decrease exposures under the ADA.  Management should exercise caution to carefully and proper the potential legal significance of physical or mental impairments or conditions that might be less significant in severity or scope, correctable through the use of eyeglasses, hearing aids, daily medications or other adaptive devices, or that otherwise have been assumed by management to fall outside the ADA’s scope. Employers should no longer assume, for instance, that a visually impaired employee won’t qualify as disabled because eyeglasses can substantially correct the employee’s visual impairment. 

If you have any questions or need help reviewing and updating your organization’s employment and/or employee practices in response to the ADAAA, GINA or other applicable laws, or if we may be of assistance with regard to any other workforce management, employee benefits or compensation matters, please do not hesitate to contact the author of this update, Cynthia Marcotte Stamer.

About The Author

Management attorney and consultant Cynthia Marcotte Stamer helps businesses, governments and associations solve problems, develop and implement strategies to manage people, processes, and regulatory exposures to achieve their business and operational objectives and manage legal, operational and other risks. Board certified in labor and employment law by the Texas Board of Legal Specialization, with more than 20 years human resource and employee benefits experience, Ms. Stamer helps businesses manage their people-related risks and the performance of their internal and external workforce though appropriate human resources, employee benefit, worker’s compensation, insurance, outsourcing and risk management strategies domestically and internationally. Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble AV-Rating, Ms. Stamer also is a highly regarded author and speaker, who regularly conducts management and other training on a wide range of labor and employment, employee benefit, human resources, internal controls and other related risk management matters.  Her writings frequently are published by the American Bar Association (ABA), Aspen Publishers, Bureau of National Affairs, the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc., Atlantic Information Services, Employee Benefit News, and many others. For a listing of some of these publications and programs, see here. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. Chair of the ABA RPTE Employee Benefit and Other Compensation Committee, a council member of the ABA Joint Committee on Employee Benefits, and the Legislative Chair of the Dallas Human Resources Management Association Government Affairs Committee, she also serves in leadership positions in many human resources, corporate compliance, and other professional and civic organizations. For more details about Ms. Stamer’s experience and other credentials, contact Ms. Stamer, information about workshops and other training, selected publications and other human resources related information, see here or contact Ms. Stamer via telephone at 469.767.8872 or via e-mail to  cstamer@solutionslawyer.net

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources at www.solutionslawpress.com including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information here.   

©2012 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.


New EEOC State Discrimination Charge Data Helpful Employer Risk Assessment Tool Discrimination Exposures Grow

June 26, 2012
 Tables Present Employment Discrimination Statistics in User-Friendly Format

New employment discrimination charge statistics made available online by the U.S. Equal Employment Opportunity Commission (EEOC) in May, 2012 provide a helpful risk assessment tool for private sector employers looking to understand and decide where to deploy resources to management their employment discrimination exposures. 

In May, the EEOC put private sector workplace discrimination charge statistics for each of the nation’s 50 states and U.S. Territories for fiscal years 2009-2011 online.  These data provide a look at EEOC charge receipts, broken down by the basis of discrimination, as well as the percent of total state and national charges. The state data tables are available online at http://www1.eeoc.gov/eeoc/statistics/enforcement/charges_by_state.cfm.

The EEOC plans to update the state data each fiscal year.

The availability of these statistics comes at an opportune time.  Disability and other discrimination challenges are rising.   Since taking office, President Obama has made enforcement of disability and other employment discrimination laws a top priority by both pursing enforcement directly and stepping up public outreach and education efforts to promote awareness and encourage private enforcement.  These efforts have been further strengthened by statutory and regulatory amendments to disability discrimination and other discrimination laws.   As a result of these developments and a tightening job market, discrimination claims are on the rise. 

To help mitigate the expanded employment liability risks , businesses generally should act to manage their exposures.  Management should exercise caution to carefully design and implement employment discrimination and related employment policies.  They should implement exit interview, hotline and other practices  to help detect and resolve potential discrimination exposures early.  They also should carefully document legitimate disciplinary and other non-discriminatory justifications for employment related activities and conduct regular training for management and employees. 

Businesses also should consider tightening their documentation regarding their procedures and processes governing the  collection and handling records and communications that may contain information that could be helpful or hurtful in the event of a discriminatioj charge.  Businesses need to ensure that all required records and statistics are collected.  In addition, businesses also should consider strengthing record creation and retention efforts to help preserve other evidence that could be invaluable to defending charges and change the way that decisions are made and documented to position their organizations to more effectively demonstrate the defensibility of their employment and other business activities against potential nondiscrimination charges.

As part of this process, businesses also should carefully review their employment records, group health plan, family leave, disability accommodation, and other existing policies and practices to comply with, and manage exposure under the new genetic information nondiscrimination and privacy rules enacted as part of the Genetic Information and Nondiscrimination Act (GINA) signed into law by President Bush on May 21, 2008.  Effective November 21, 2009, Title VII of GINA amends the Civil Rights Act to prohibit employment discrimination based on genetic information and restricts the ability of employers and their health plans to require, collect or retain certain genetic information. Under GINA, employers, employment agencies, labor organizations and joint labor-management committees face significant liability for violating the sweeping nondiscrimination and confidentiality requirements of GINA concerning their use, maintenance and disclosure of genetic information. Employees can sue for damages and other relief like currently available under Title VII of the Civil Rights Act of 1964 and other nondiscrimination laws.  For instance, GINA’s employment related provisions include rules that will:

  • Prohibit employers and employment agencies from discriminating based on genetic information in hiring, termination or referral decisions or in other decisions regarding compensation, terms, conditions or privileges of employment;
  • Prohibit employers and employment agencies from limiting, segregating or classifying employees so as to deny employment opportunities to an employee based on genetic information;
  • Bar labor organizations from excluding, expelling or otherwise discriminating against individuals based on genetic information;
  • Prohibit employers, employment agencies and labor organizations from requesting, requiring or purchasing genetic information of an employee or an employee’s family member except as allowed by GINA to satisfy certification requirements of family and medical leave laws, to monitor the biological effects of toxic substances in the workplace or other conditions specifically allowed by GINA;
  • Prohibit employers, labor organizations and joint labor-management committees from discriminating in any decisions related to admission or employment in training or retraining programs, including apprenticeships based on genetic information;
  • Mandate that in the narrow situations where limited cases where genetic information is obtained by a covered entity, it maintain the information on separate forms in separate medical files, treat the information as a confidential medical record, and not disclosure the genetic information except in those situations specifically allowed by GINA;
  • Prohibit any person from retaliating against an individual for opposing an act or practice made unlawful by GINA; and
  • Regulate the collection, use, access and disclosure of genetic information by employer sponsored and certain other health plans.

These employment provisions of GINA are in addition to amendments to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Employee Retirement Income Security Act of 1974 (ERISA), the Public Health Service Act, the Internal Revenue Code of 1986, and Title XVIII (Medicare) of the Social Security Act that are effective for group health plan for plan years beginning after May 20, 2009.

If you have any questions or need help reviewing and updating your organization’s employment and/or employee practices in response to the ADAAA, GINA or other applicable laws, or if we may be of assistance with regard to any other workforce management, employee benefits or compensation matters, please do not hesitate to contact the author of this update, Cynthia Marcotte Stamer.

About The Author

Management attorney and consultant Cynthia Marcotte Stamer helps businesses, governments and associations solve problems, develop and implement strategies to manage people, processes, and regulatory exposures to achieve their business and operational objectives and manage legal, operational and other risks. Board certified in labor and employment law by the Texas Board of Legal Specialization, with more than 20 years human resource and employee benefits experience, Ms. Stamer helps businesses manage their people-related risks and the performance of their internal and external workforce though appropriate human resources, employee benefit, worker’s compensation, insurance, outsourcing and risk management strategies domestically and internationally. Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble AV-Rating, Ms. Stamer also is a highly regarded author and speaker, who regularly conducts management and other training on a wide range of labor and employment, employee benefit, human resources, internal controls and other related risk management matters.  Her writings frequently are published by the American Bar Association (ABA), Aspen Publishers, Bureau of National Affairs, the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc., Atlantic Information Services, Employee Benefit News, and many others. For a listing of some of these publications and programs, see here. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. Chair of the ABA RPTE Employee Benefit and Other Compensation Committee, a council member of the ABA Joint Committee on Employee Benefits, and the Legislative Chair of the Dallas Human Resources Management Association Government Affairs Committee, she also serves in leadership positions in many human resources, corporate compliance, and other professional and civic organizations. For more details about Ms. Stamer’s experience and other credentials, contact Ms. Stamer, information about workshops and other training, selected publications and other human resources related information, see here or contact Ms. Stamer via telephone at 469.767.8872 or via e-mailto  cstamer@solutionslawyer.net

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources at www.solutionslawpress.com.

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information here.   

©2012 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.

 


Obama’s Reaffirms Commitment Prosecute Disability Discrimination To Mark Omlstead Anniversary

June 22, 2012

Statements of President Obama  made today (June 22, 2012) in celebration of the 13th anniversary of the June 22, 1999 Supreme Court decision in Olmstead v. L.C. are a reminder that U.S. businesses face a continuing and growing need to be on guard to defend against potential disability discrimination liabilities. Coupled with the well-documented activism of the Equal Employment Opportunity Commission and other agencies in prosecuting disability discrimination and promoting a pro-disability enforcement agenda, businesses are encouraged to review and tighten their disability discrimination compliance procedures and documentation. 

In Olmstead, the Supreme Court ruled in that the unjustified institutional isolation of people with disabilities is a form of unlawful discrimination under the Americans with Disabilities Act (ADA). 

In marking the 13th anniversary of this decision, President Obama said, “As we mark the anniversary of this historic civil rights decision, we reaffirm our commitment to fighting discrimination, and to addressing the needs and concerns of those living with disabilities.”

In reaffirming this commitment, the Administration highlighted its past and continuing efforts to enforce disability discrimination laws, as well as other activities to support individuals with disability. 

As part of its significant commitment to disability discrimination enforcement, the Civil Rights Division at the Department has been involved in more than 40 Olmstead matters in 25 states.   Recently, in Virginia, the Department entered into a landmark settlement agreement with the Commonwealth, which will shift Virginia’s developmental disabilities system from one heavily reliant on large, state-run institutions to one focused on safe, individualized, and community-based services that promote integration, independence and full participation by people with disabilities in community life. The agreement expands and strengthens every aspect of the Commonwealth’s system of serving people with intellectual and developmental disabilities in integrated settings, and it does so through a number of services and supports.  The Department has a website dedicated to Olmstead enforcement, which includes links to settlements, briefs, findings letters, and other materials. The settlement agreements are a reminder that private businesses and state and local government agencies alike should exercise special care to prepare to defend their actions against potential disability or other Civil Rights discrimination challenges.  All organizations, whether public or private need to make sure both that their organizations, their policies, and people in form and in action understand and comply with current disability and other nondiscrimination laws.  When reviewing these responsibilities, many state and local governments and private businesses may need to update their understanding of current requirements.  The scope and applicability of disability and various other federal nondiscrimination and other laws have been expanded or modified in recent years by statutory, regulatory or enforcement changes. 

These Justice Department efforts also are reflected in the companion enforcement efforts to investigate and prosecute disability discrimination by the Labor Department Equal Employment Opportunity Commission in employment, the Department of Housing & Urban Development in housing and related areas, the Department of Education in education and related fields and a host of other agencies.

While the Administration’s disability law enforcement reaches broadly, disability discrimination enforcement is particularly notable in the area of employment law.  For instance, the Equal Employment Opportunity Commission recently sued Wendy’s franchisee, CTW L.L.C., (Texas Wendy’s) for allegedly violating the Americans With Disabilities Act by denying employment to a hearing-impaired applicant.  In its suit against Texas Wendy’s, the EEOC  seeks injunctive relief, including the formulation of policies to prevent and  correct disability discrimination as well as an award of lost wages and compensatory damages for Harrison  and punitive damages against CTW L.L.C.   An example of a growing number of disability discrimination enforcement actions taken against employers and others on behalf of hearing impaired or other persons with disabilities under the Obama Administration, the case against Texas Wendy’s highlights the growing enforcement exposures of U.S. businesses to disability discrimination claims under the Obama Administration. In the suit, the EEOC charged that the general manager of a Killeen,  Texas Wendy’s refused to hire Michael Harrison, Jr. for a cooker position,  despite his qualifications and experience, upon learning that Harrison is  hearing-impaired.

According to the EEOC, Harrison, who had previously worked for a different fast-food franchise for over two  years, was denied hire by the general manager.  Harrison said that after successfully  interviewing with the Wendy’s shift manager, he attempted to complete the  interview process by interviewing with Wendy’s general manager via Texas Relay,  a telephonic system used by people with hearing impairments. Harrison’s told  the EEOC that during the call he was told by the general manager that “there is  really no place for someone we cannot communicate with.”

Expanding Disability Discrimination Exposures

As illustrated by the suit against Texas Wendy’s, employers must exercise care when making hiring, promotion or other employment related decisions relating to persons with hearing or other conditions that could qualify as a disability under the ADA.  

The ADA generally prohibits disability discrimination and requires employers to make  reasonable accommodations to employees’ and applicants’ disabilities as long as  this does not pose an undue hardship.

 In recent years, amendments to the original provisions of the ADA have made it easier for plaintiffs and the EEOC to establish disabled status of an individual.  Businesses should exercise caution to carefully document legitimate business justification for their hiring, promotion and other employment related decisions about these and other individuals who might qualify as disabled.  Provisions of the ADA Amendments Act (ADAAA) that expand the definition of “disability” under the ADA,  As signed into law on September 25, 2008, the ADAAA amended the definition of “disability” for purposes of the disability discrimination prohibitions of the ADA to make it easier for an individual seeking protection under the ADA to establish that a person has a disability within the meaning of the ADA.  The ADAAA retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, provisions of the ADAAA that took effect January 1, 2009 change the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:

  • Directs EEOC to revise that portion of its regulations defining the term “substantially limits;”
  • Expands the definition of “major life activities” by including two non-exhaustive lists: (1) The first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating); and (2) The second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”);
  • States that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
  • Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
  • Changes the definition of “regarded as” so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor; and
  • Provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.

The ADAAA also emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.In adopting these changes, Congress expressly sought to overrule existing employer-friendly judicial precedent construing the current provisions of the ADA and to require the EEOC to update its existing guidance to confirm with the ADAAA Amendments.  Under the leadership of the Obama Administration, the EEOC and other federal agencies have embraced this charge and have sigificantly stepped up enforcement of the ADA and other federal discrimination laws.

Violations of the ADA can expose businesses to substantial liability. Violations of the ADA may be prosecuted by the EEOC or by private lawsuits.  Employees or applicants that can prove they were subjected to prohibited disability discrimination under the ADA generally can recover actual damages, attorneys’ fees, and up to $300,000 of exemplary damages (depending on the size of the employer).   

 The ADAAA amendments coupled with the Obama Administration’s emphasis on enforcement make it likely that businesses generally will face more disability claims from a broader range of employees and will possess fewer legal shields to defend themselves against these claims. These changes will make it easier for certain employees to qualify as disabled under the ADA.  Consequently, businesses should act strategically to mitigate their ADA exposures in anticipation of these changes.  

To help mitigate the expanded employment liability risks created by the ADAAA amendments, businesses generally should act cautiously when dealing with applicants or employees with actual, perceived, or claimed physical or mental impairments to decrease exposures under the ADA.  Management should exercise caution to carefully and proper the potential legal significance of physical or mental impairments or conditions that might be less significant in severity or scope, correctable through the use of eyeglasses, hearing aids, daily medications or other adaptive devices, or that otherwise have been assumed by management to fall outside the ADA’s scope. Employers should no longer assume, for instance, that a visually impaired employee won’t qualify as disabled because eyeglasses can substantially correct the employee’s visual impairment. 

Likewise, businesses should be prepared for the EEOC and the courts to treat a broader range of disabilities, including those much more limited in severity and life activity restriction, to qualify as disabling for purposes of the Act. Businesses should assume that a greater number of employees with such conditions are likely to seek to use the ADA as a basis for challenging hiring, promotion and other employment decisions.  For this reason, businesses generally should tighten job performance and other employment record keeping to enhance their ability to prove nondiscriminatory business justifications for the employment decisions made by the businesses.

Businesses also should consider tightening their documentation regarding their procedures and processes governing the  collection and handling records and communications that may contain information regarding an applicant’s physical or mental impairment, such as medical absences, worker’s compensation claims, emergency information, or other records containing health status or condition related information.  The ADA generally requires that these records be maintained in separate confidential files and disclosed only to individuals with a need to know under circumstances allowed by the ADA. 

As part of this process, businesses also should carefully review their employment records, group health plan, family leave, disability accommodation, and other existing policies and practices to comply with, and manage exposure under the new genetic information nondiscrimination and privacy rules enacted as part of the Genetic Information and Nondiscrimination Act (GINA) signed into law by President Bush on May 21, 2008.  Effective November 21, 2009, Title VII of GINA amends the Civil Rights Act to prohibit employment discrimination based on genetic information and restricts the ability of employers and their health plans to require, collect or retain certain genetic information. Under GINA, employers, employment agencies, labor organizations and joint labor-management committees face significant liability for violating the sweeping nondiscrimination and confidentiality requirements of GINA concerning their use, maintenance and disclosure of genetic information. Employees can sue for damages and other relief like currently available under Title VII of the Civil Rights Act of 1964 and other nondiscrimination laws.  For instance, GINA’s employment related provisions include rules that will:

  • Prohibit employers and employment agencies from discriminating based on genetic information in hiring, termination or referral decisions or in other decisions regarding compensation, terms, conditions or privileges of employment;
  • Prohibit employers and employment agencies from limiting, segregating or classifying employees so as to deny employment opportunities to an employee based on genetic information;
  • Bar labor organizations from excluding, expelling or otherwise discriminating against individuals based on genetic information;
  • Prohibit employers, employment agencies and labor organizations from requesting, requiring or purchasing genetic information of an employee or an employee’s family member except as allowed by GINA to satisfy certification requirements of family and medical leave laws, to monitor the biological effects of toxic substances in the workplace or other conditions specifically allowed by GINA;
  • Prohibit employers, labor organizations and joint labor-management committees from discriminating in any decisions related to admission or employment in training or retraining programs, including apprenticeships based on genetic information;
  • Mandate that in the narrow situations where limited cases where genetic information is obtained by a covered entity, it maintain the information on separate forms in separate medical files, treat the information as a confidential medical record, and not disclosure the genetic information except in those situations specifically allowed by GINA;
  • Prohibit any person from retaliating against an individual for opposing an act or practice made unlawful by GINA; and
  • Regulate the collection, use, access and disclosure of genetic information by employer sponsored and certain other health plans.

These employment provisions of GINA are in addition to amendments to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Employee Retirement Income Security Act of 1974 (ERISA), the Public Health Service Act, the Internal Revenue Code of 1986, and Title XVIII (Medicare) of the Social Security Act that are effective for group health plan for plan years beginning after May 20, 2009.

If you have any questions or need help reviewing and updating your organization’s employment and/or employee practices in response to the ADAAA, GINA or other applicable laws, or if we may be of assistance with regard to any other workforce management, employee benefits or compensation matters, please do not hesitate to contact the author of this update, Cynthia Marcotte Stamer.

About The Author

Management attorney and consultant Cynthia Marcotte Stamer helps businesses, governments and associations solve problems, develop and implement strategies to manage people, processes, and regulatory exposures to achieve their business and operational objectives and manage legal, operational and other risks. Board certified in labor and employment law by the Texas Board of Legal Specialization, with more than 20 years human resource and employee benefits experience, Ms. Stamer helps businesses manage their people-related risks and the performance of their internal and external workforce though appropriate human resources, employee benefit, worker’s compensation, insurance, outsourcing and risk management strategies domestically and internationally. Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble AV-Rating, Ms. Stamer also is a highly regarded author and speaker, who regularly conducts management and other training on a wide range of labor and employment, employee benefit, human resources, internal controls and other related risk management matters.  Her writings frequently are published by the American Bar Association (ABA), Aspen Publishers, Bureau of National Affairs, the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc., Atlantic Information Services, Employee Benefit News, and many others. For a listing of some of these publications and programs, see here. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. Chair of the ABA RPTE Employee Benefit and Other Compensation Committee, a council member of the ABA Joint Committee on Employee Benefits, and the Legislative Chair of the Dallas Human Resources Management Association Government Affairs Committee, she also serves in leadership positions in many human resources, corporate compliance, and other professional and civic organizations. For more details about Ms. Stamer’s experience and other credentials, contact Ms. Stamer, information about workshops and other training, selected publications and other human resources related information, see here or contact Ms. Stamer via telephone at 469.767.8872 or via e-mailto  cstamer@solutionslawyer.net

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources at www.solutionslawpress.com.

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information here.   

©2012 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.

 


EEOC Sues Wendy’s Franchisee For Disability Discrimination

April 18, 2012

Killeen Fast-Food  Restaurant Refused to Hire Hearing-Impaired Applicant Despite His  Qualifications, Federal Agency Charges

Wendy’s franchisee, CTW L.L.C., (Texas Wendy’s) is being sued by the U.S. Equal Employment Opportunity Commission (EEOC) for allegedly violating the Americans With Disabililties Act by denying employment to a hearing-impaired applicant.  In its suit against Texas Wendy’s, the EEOC  seeks injunctive relief, including the formulation of policies to prevent and  correct disability discrimination as well as an award of lost wages and compensatory damages for Harrison  and punitive damages against CTW L.L.C.   An example of a growing number of disability discrimination enforcement actions taken against employers and others on behalf of hearing impaired or other persons with disabilities under the Obama Administration, the case against Texas Wendy’s highlights the growing enforcement exposures of U.S. businesses to disability discrimination claims under the Obama Administration.

Wendy’s Suit

The EEOC charges in its suit against Texas Wendy’s, Case No. 6:12-CV-00091-WSS in U.S. District Court for the  Western District of Texas, Waco Division, that the general manager of a Killeen,  Texas Wendy’s refused to hire Michael Harrison, Jr. for a cooker position,  despite his qualifications and experience, upon learning that Harrison is  hearing-impaired.

According to the EEOC, Harrison, who had previously worked for a different fast-food franchise for over two  years, was denied hire by the general manager.  Harrison said that after successfully  interviewing with the Wendy’s shift manager, he attempted to complete the  interview process by interviewing with Wendy’s general manager via Texas Relay,  a telephonic system utilized by people with hearing impairments. Harrison’s told  the EEOC that during the call he was told by the general manager that “there is  really no place for someone we cannot communicate with.”

Expanding Disability Discrimination Exposures

As illustrated by the suit against Texas Wendy’s, employers must exercise care when making hiring, promotion or other employment related decisions relating to persons with hearing or other conditions that could qualify as a disability under the ADA.  

The ADA generally prohibits disability discrimination and requires employers to make  reasonable accommodations to employees’ and applicants’ disabilities as long as  this does not pose an undue hardship.

 In recent years, amendments to the original provisions of the ADA have made it easier for plaintiffs and the EEOC to establish disabled status of an individual.  Businesses should exercise caution to carefully document legitimate business justification for their hiring, promotion and other employment related decisions about these and other individuals who might qualify as disabled.  Provisions of the ADA Amendments Act (ADAAA) that expand the definition of “disability” under the ADA,  As signed into law on September 25, 2008, the ADAAA amended the definition of “disability” for purposes of the disability discrimination prohibitions of the ADA to make it easier for an individual seeking protection under the ADA to establish that that has a disability within the meaning of the ADA.  The ADAAA retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, provisions of the ADAAA that took effect January 1, 2009 change the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:

  • Directs EEOC to revise that portion of its regulations defining the term “substantially limits;”
  • Expands the definition of “major life activities” by including two non-exhaustive lists: (1) The first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating); and (2) The second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”);
  • States that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
  • Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
  • Changes the definition of “regarded as” so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor; and
  • Provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.

The ADAAA also emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.In adopting these changes, Congress expressly sought to overrule existing employer-friendly judicial precedent construing the current provisions of the ADA and to require the EEOC to update its existing guidance to confirm with the ADAAA Amendments.  Under the leadership of the Obama Administration, the EEOC and other federal agencies have embraced this charge and have sigificantly stepped up enforcement of the ADA and other federal discrimination laws.

Violations of the ADA can expose businesses to substantial liability. Violations of the ADA may be prosecuted by the EEOC or by private lawsuits.  Employees or applicants that can prove they were subjected to prohibited disability discrimination under the ADA generally can recover actual damages, attorneys’ fees, and up to $300,000 of exemplary damages (depending on the size of the employer).   

 The ADAAA amendments coupled with the Obama Administration’s emphasis on enforcement make it likely that businesses generally will face more disability claims from a broader range of employees and will possess fewer legal shields to defend themselves against these claims. These changes will make it easier for certain employees to qualify as disabled under the ADA.  Consequently, businesses should act strategically to mitigate their ADA exposures in anticipation of these changes.  

To help mitigate the expanded employment liability risks created by the ADAAA amendments, businesses generally should act cautiously when dealing with applicants or employees with actual, perceived, or claimed physical or mental impairments to minimize exposures under the ADA.  Management should exercise caution to carefully and appropriate the potential legal significance of physical or mental impairments or conditions that might be less significant in severity or scope, correctable through the use of eyeglasses, hearing aids, daily medications or other adaptive devices, or that otherwise have been assumed by management to fall outside the ADA’s scope. Employers should no longer assume, for instance, that a visually impaired employee won’t qualify as disabled because eyeglasses can substantially correct the employee’s visual impairment. 

Likewise, businesses should be prepared for the EEOC and the courts to treat a broader range of disabilities, including those much more limited in severity and life activity restriction, to qualify as disabling for purposes of the Act. Businesses should assume that a greater number of employees with such conditions are likely to seek to use the ADA as a basis for challenging hiring, promotion and other employment decisions.  For this reason, businesses generally should tighten job performance and other employment recordkeeping to enhance their ability to demonstrate nondiscriminatory business justifications for the employment decisions made by the businesses.

Businesses also should consider tightening their documentation regarding their procedures and processes governing the  collection and handling records and communications that may contain information regarding an applicant’s physical or mental impairment, such as medical absences, worker’s compensation claims, emergency information, or other records containing health status or condition related information.  The ADA generally requires that these records be maintained in separate confidential files and disclosed only to individuals with a need to know under circumstances allowed by the ADA. 

As part of this process, businesses also should carefully review their employment records, group health plan, family leave, disability accommodation, and other existing policies and practices to comply with, and manage exposure under the new genetic information nondiscrimination and privacy rules enacted as part of the Genetic Information and Nondiscrimination Act (GINA) signed into law by President Bush on May 21, 2008.  Effective November 21, 2009, Title VII of GINA amends the Civil Rights Act to prohibit employment discrimination based on genetic information and restricts the ability of employers and their health plans to require, collect or retain certain genetic information. Under GINA, employers, employment agencies, labor organizations and joint labor-management committees face significant liability for violating the sweeping nondiscrimination and confidentiality requirements of GINA concerning their use, maintenance and disclosure of genetic information. Employees can sue for damages and other relief like currently available under Title VII of the Civil Rights Act of 1964 and other nondiscrimination laws.  For instance, GINA’s employment related provisions include rules that will:

  • Prohibit employers and employment agencies from discriminating based on genetic information in hiring, termination or referral decisions or in other decisions regarding compensation, terms, conditions or privileges of employment;
  • Prohibit employers and employment agencies from limiting, segregating or classifying employees so as to deny employment opportunities to an employee based on genetic information;
  • Bar labor organizations from excluding, expelling or otherwise discriminating against individuals based on genetic information;
  • Prohibit employers, employment agencies and labor organizations from requesting, requiring or purchasing genetic information of an employee or an employee’s family member except as allowed by GINA to satisfy certification requirements of family and medical leave laws, to monitor the biological effects of toxic substances in the workplace or other conditions specifically allowed by GINA;
  • Prohibit employers, labor organizations and joint labor-management committees from discriminating in any decisions related to admission or employment in training or retraining programs, including apprenticeships based on genetic information;
  • Mandate that in the narrow situations where limited cases where genetic information is obtained by a covered entity, it maintain the information on separate forms in separate medical files, treat the information as a confidential medical record, and not disclosure the genetic information except in those situations specifically allowed by GINA;
  • Prohibit any person from retaliating against an individual for opposing an act or practice made unlawful by GINA; and
  • Regulate the collection, use, access and disclosure of genetic information by employer sponsored and certain other health plans.

These employment provisions of GINA are in addition to amendments to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Employee Retirement Income Security Act of 1974 (ERISA), the Public Health Service Act, the Internal Revenue Code of 1986, and Title XVIII (Medicare) of the Social Security Act that are effective for group health plan for plan years beginning after May 20, 2009.

If you have any questions or need help reviewing and updating your organization’s employment and/or employee practices in response to the ADAAA, GINA or other applicable laws, or if we may be of assistance with regard to any other workforce management, employee benefits or compensation matters, please do not hesitate to contact the author of this update, Curran Tomko Tarksi LLP Labor & Employment Practice Chair Cynthia Marcotte Stamer at 214.270.2402.

About The Author

Management attorney and consultant Cynthia Marcotte Stamer helps businesses, governments and associations solve problems, develop and implement strategies to manage people, processes, and regulatory exposures to achieve their business and operational objectives and manage legal, operational and other risks. Board certified in labor and employment law by the Texas Board of Legal Specialization, with more than 20 years human resource and employee benefits experience, Ms. Stamer helps businesses manage their people-related risks and the performance of their internal and external workforce though appropriate human resources, employee benefit, worker’s compensation, insurance, outsourcing and risk management strategies domestically and internationally. Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble AV-Rating, Ms. Stamer also is a highly regarded author and speaker, who regularly conducts management and other training on a wide range of labor and employment, employee benefit, human resources, internal controls and other related risk management matters.  Her writings frequently are published by the American Bar Association (ABA), Aspen Publishers, Bureau of National Affairs, the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc., Atlantic Information Services, Employee Benefit News, and many others. For a listing of some of these publications and programs, see here. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. Chair of the ABA RPTE Employee Benefit and Other Compensation Committee, a council member of the ABA Joint Committee on Employee Benefits, and the Legislative Chair of the Dallas Human Resources Management Association Government Affairs Committee, she also serves in leadership positions in numerous human resources, corporate compliance, and other professional and civic organizations. For more details about Ms. Stamer’s experience and other credentials, contact Ms. Stamer, information about workshops and other training, selected publications and other human resources related information, see here or contact Ms. Stamer via telephone at 214.270.2402 or via e-mail here.

Other Helpful Resources & Other Information

If you found these updates of interest, you also be interested in one or more of the following other recent articles published in this electronic Solutions Law publication available for review here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here.

For important information concerning this communication click here.  If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@solutionslawyer.net.

©2012 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press, Inc.  All other  rights reserved. 


New Obama Administration Affirmative Action Guidance Highlights Organization’s Need To Tighten Nondiscrimination Practices

December 3, 2011

HR Key Player In Managing Rising Race & Other Discimination Suits Under Obama Administration Justice Department

The Obama Administration’s December 2 announcement of its revocation and replacement of Bush Administration policies on affirmative action in education highlights the heightened aggressiveness under the Obama Administration on the implementation, interpretation and enforcement of race, sex, disability, national origin and other federal discrimination and Civil Rights laws.

The new guidance discussed in more detail at http://wp.me/p1hsKH-1k makes clear the Administration’s view that schools can and should be doing more to promote integration and other affirmative action efforts in the schools and other organizations.  It also gives a number of examples of the types of steps that the Administration believes schools should be pursuing.  While specifically directed in schools, it provides insights about the affirmative action expectations of the Administration that merit notice by all public and private organizations and businesses.

The Justice Department under the Obama Administration in making discrimination in schools and other state and local agencies as well as by private businesses a priority.  For instance, in addition to tightening and enforcing race discrimination laws, the Justice Department on November 23, 2011 sued the University of Nebraska at Kearney (UNK), the Board of Regents of the University of Nebraska and employees of UNK for violating the Fair Housing Act by discriminating against students with disabilities. 

These and other activities are part of a growing number of regulatory and enforcement actions under the Obama Administation that illustrate the growing risk created for private and public organizations by failing to manage compliance with discrimination or other civil rights laws in the conduct of their business operations, as well as employment practices.

While most governmental agencies and businesses recognize the need to manage compliance with discrimination laws in their employment practices, many fail to adequately recognize and provide policies, management controls and training to maintain compliance with federal discrimination laws prohibiting discrimination in dealing with customers, vendors or other swith whom they do business. 

 Human resources and other management leaders should position their organizations to guard against rising enforcement of these laws by updating policies, oversight and training to ensure that their workers and business partners recognize and know how to conduct themselves properly to fulfill responsibilities with whom the business deals who may be protected under Federal or state race or other discrimination laws.  In addition to adopting and training workers on policies requiring compliance with these laws, businesses should include contractual provisions requiring compliance with these laws in leases and other relevant business contracts.  Most businesses also may want to provide and post information about processes that customers or others who may have a concern about potential prohibited discrimination to position the business to address concerns that otherwise might go unnoticed until they arise to the level of an agency or other legal  complaint.

If you need assistance in conducting a risk assessment of or responding to a challenge to your organization’s existing policies or practices for dealing with the issues addressed in these publications or other compliance, labor and employment, employee benefit, compensation, internal controls or other management practices, contact attorney Cynthia Marcotte Stamer.

For Added Information and Other Resources

If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:

For Help Or More Information

If you need assistance in auditing or assessing, updating or defending your organization’s compliance, risk manage or other  internal controls practices or actions, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping employers and other management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit  and management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend union-management relations, wage and hour, discrimination and other labor and employment laws, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions.  The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, reengineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters.  She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources at www.solutionslawpress.com.

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information here.   

©2011 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.


HR Key Player In Managing Rising Risk of Disability, Other Discimination Suits Under Obama Administration Justice Department

November 26, 2011

Latest Action Shows Obama Justice Department Aggressively Enforcing Discrimination Laws

The Justice Department on November 23, 2011 sued the University of Nebraska at Kearney (UNK), the Board of Regents of the University of Nebraska and employees of UNK for violating the Fair Housing Act by discriminating against students with disabilities.  The latest in a growing string of disability and other discrimination suits brought by the Justice Department since the Obama Administration took office, it highlights the growing risk created for private and public organizations by failing to manage compliance with disability or other civil rights laws in the conduct of their business operations, as well as employment practices.

The lawsuit  filed in the U.S. District Court for Nebraska, charges that UNK and its employees engaged in a pattern or practice of violating the Fair Housing Act or denied rights protected by the act by denying reasonable accommodation requests by students with psychological or emotional disabilities seeking to live with emotional assistance animals in university housing.

The Justice Department suit also charges that UNK requires students with psychological disabilities to disclose sensitive medical and other information that is unnecessary to evaluate their accommodation requests. 

The latest in a growing series of disability discrimination lawsuits brought by the Justice Department against public and private landlords and a growing list of other businesses, the UNK lawsuit arises from a complaint filed with the Department of Housing and Urban Development (HUD) by a student enrolled at UNK who sought to live with an emotional assistance dog that had been prescribed.  The lawsuit seeks a court order prohibiting future discrimination by the defendants, monetary damages for those harmed by the defendants’ actions, and a civil penalty.

The federal Fair Housing Act prohibits discrimination in housing on the basis of race, color, religion, sex, familial status, national origin and disability. With regard to disability discrimination, the Fair Housing Act requires housing providers to give reasonable accommodations for people with disabilities so that all have equal housing opportunities and limits the medical information that landlords can require from persons seeking disability accommodation in order to receive an accommodation.

The Obama Administration Justice Department has made enforcement of disability and other federal discrimination laws a key priority.  Businesses should tighten policies, practices and training to minimize exposures to Justice Department or private plaintiff complaints for violations under these laws.

While most businesses recognize the need to manage compliance with the ADA and other discrimination laws in their employment practices, many businesses and business leaders fail to adequately recognize and provide policies, management controls and training to maintain compliance with federal disability and other discrimination laws prohibiting discrimination against disabled or other customers or others with whom they do business.  Human resources and other management leaders should position their organizations to guard against rising enforcement of these laws by updating policies, oversight and training to ensure that their workers and business partners recognize and know how to conduct themselves properly to fulfill responsibilities to persons with disabilities or others with whom the business deals who may be protected under Federal or state disability discrimination laws.  In addition to adopting and training workers on policies requiring compliance with these laws, businesses should include contractual provisions requiring compliance with these laws in leases and other relevant business contracts.  Most businesses also may want to provide and post information about processes that customers or others who may have a concern about the needs of persons with these special needs to position the business to address concerns that otherwise might go unnoticed until they arise to the level of an agency or other legal  complaint.

If you need assistance in conducting a risk assessment of or responding to a challenge to your organization’s existing policies or practices for dealing with the issues addressed in these publications or other compliance, labor and employment, employee benefit, compensation, internal controls or other management practices, contact attorney Cynthia Marcotte Stamer.

For Added Information and Other Resources

If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer available including:

For Help Or More Information

If you need assistance in auditing or assessing, updating or defending your organization’s compliance, risk manage or other  internal controls practices or actions, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping employers and other management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit  and management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend union-management relations, wage and hour, discrimination and other labor and employment laws, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions.  The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, reengineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters.  She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources at www.solutionslawpress.com.

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information here.   

©2011 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.


EEOC Finalizes Updates To Disability Regulations In Response to ADA Amendments Act

March 24, 2011

Employers Urged To Tighten Disability Related Discrimination Risk Management

Employers should review and update their existing employment and employee benefit practices in response to updated regulations (Final Regulations) governing the disability discrimination rules of the Americans With Disabilities Act as amended by the ADA Amendments Act (ADAAA) that the Equal Employment Opportunity Commission (EEOC) will publish in the Friday, March 25, 2011 Federal Register.

On Thursday, March 24, 2011, the EEOC released an advance copy of the Final Regulations along with two Question-and-Answer documents about the Final Regulations to aid the public and employers – including small business – in understanding the law and new regulations. The Final Regulations, accompanying Question and Answer documents and a fact sheet are available on the EEOC website here .

The changes contained in the updated Final Regulations update the EEOC’s disability regulations in response to amendments made to the ADA by Congress as part of the ADAAA.  Like the ADAAA they implement, the Final regulations are designed to simplify the determination of who has a “disability” and make it easier for people to establish that they are protected by the Americans with Disabilities Act (ADA).

The Final Regulations and the ADAAA amendments they implement make it likely that businesses generally will face more disability claims from a broader range of employees and will possess fewer legal shields to defend themselves against these claims. Since these changes make it easier for certain employees to qualify as disabled under the ADA, businesses should act strategically to mitigate their ADA exposures in response to the Final Regulations.  Learn more about the Final Regulations and get suggestions for risk management of expanding disabilities discrimination exposures here.

For Help With Disability Discrimination Risk Management or Other Needs

If you need assistance in auditing or assessing, updating or defending your disability management or with other labor and employment, employee benefit, compensation or internal controls practices, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 23 years of work helping employers; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit  and management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend wage and hour and other workforce and internal controls policies, procedures and actions.  The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on wage and hour, worker classification and other human resources and workforce, employee benefits, compensation, internal controls and related matters.  She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here .

 ©2011 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.


EEOC Attacks Medical Leave Denials As Prohibited Disability Discrimination

October 19, 2010

Two new Equal Employment Opportunity Commission (EEOC) lawsuits filed against a Texas concrete manufacturer and Los Angeles garment manufacturer highlight the need for U.S. employers with more than 14 employees to consider and prepare to defend against potential disability discrimination exposures when dealing with medical leave requests by employees who might be considered disabled under the Americans with Disabilities Act (ADA) as well as other expanding ADA enforcement exposures.  Read more.

The lawsuits reflect that employers considering an employee’s request for medical leave should evaluate if the ADA requires the employer to grant the requested medical leave in addition to considering any otherwise applicable leave entitlement the requesting employee qualifies for under the Family & Medical Leave Act, state leave laws or otherwise applicable employer policies.  As a result, all employers of 15 or more employees generally should review and tighten their policies and processes for evaluating requests for medical leave to minimize their exposure to claims that the denial of a requested medical leave violated the ADA. 

Furthermore, employers also should consider the advisability of other more generalized policy or procedure updates to strengthen their defensibility against potential ADA and other disability claims generally in light of stepped up enforcement by the EEOC and private plaintiffs changes to the ADA made by the ADA Amendments Act of 2008 (ADAAA) that makes it easier for employees to win ADA suits. To mitigate growing exposures to these claims, employers covered by the ADA and/or the Rehabilitation Act of 1973 should review and strengthen their existing hiring and other employment practices and documentation to strengthen their defensibility in the face of these new challenges. 

If you need assistance responding an employee’s request for medical leave or other accommodations, or otherwise to review, update or defend your disability discrimination or other employment, compensation, benefits or other workforce, internal controls or risk management practices, please contact the author of this update, Board Certified Labor & Employment attorney Cynthia Marcotte Stamer at (469) 767-8872 or via e-mail here.

Other Resources

If you found this information of interest, you also may be interested in reviewing other recent Solutions Law Press updates including:

About Ms. Stamer

Management attorney and consultant Cynthia Marcotte Stamer helps businesses, governments and associations solve problems, develop and implement strategies to manage people, processes, and regulatory exposures to achieve their business and operational objectives and manage legal, operational and other risks. When working with clients, Ms. Stamer combines a client-oriented approach with an extensive practical and technical knowledge of human resources, insurance, employee benefits, health care, privacy & security, corporate compliance and other legal matters to assist clients to formulate and administer pragmatic operational and risk management strategies and effective internal controls taking into account the financial, operational, political, legal and other realities confronting the client.

Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble Premier AV-Rating, Ms. Stamer also is a highly regarded author and speaker who serves in the leadership of many professional and civil organizations.  She regularly conducts management and other training on a wide range of workforce management, employee benefits, compensation, risk management internal controls, and other related matters for businesses, trade and professional associations and others. Her insights on human resources risk management matters appear in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications.  To request Ms. Stamer’s assistance, for information about arranging for Ms. Stamer to provide workshops and other training, to access other publications or resources or for more details about Ms. Stamer’s experience and other credentials, contact Ms. Stamer at via telephone at 469.767.8872 or via e-mail at cstamer@solutionslawyer.net or see CynthiaStamer.com.

If you or someone else you know would like to receive future updates and notices about upcoming programs and events, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here.  To unsubscribe, send an e-mail with “Unsubscribe” in the subject here.  For important information concerning this communication see here.

©2010 Cynthia Marcotte Stamer.  License to reprint granted to Solutions Law Press.  All other rights reserved.


Stamer To Discuss “Health Care Reform’s Implications For Employers, Health Plans & Employee Benefits Practitioners” At May 5 Dallas Bar Association Meeting

March 22, 2010

Cynthia Marcotte Stamer will discuss “Health Care Reform:  Implications for Employers, Health Plans and Employee Benefits Practitioners” at the May 5, 2010 meeting of Dallas Bar Association Employee Benefits/Executive Compensation Section to be held from 12:00 noon – 1:00 p.m. in the Haynes & Boone Ballroom of Dallas Bar Association Belo Mansion located at 2101 Ross Avenue in Dallas, Texas.

Narrowly passed by Congress in March after a year of contentious debate, the comprehensive health care reform legislation imposes a complex array of reforms impacting employment based health plans, employers, and the insurers and other vendors and administrators of these programs.  Ms. Stamer will explore key elements of these reforms impacting employers and employment based health coverage and their implications for employers, employment based health plans, and employee benefits and other attorneys providing advice about these arrangements.

Chair of the American Bar Association RPTE Employee Benefits & Compensation Committee, an ABA Joint Committee on Employee Benefits Council member, Chair of the Curran Tomko Tarski Labor, Employment & Employee Benefits Practice and former Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and the Dallas Bar Association Employee Benefits & Executive Compensation Section, Ms. Stamer is nationally recognized for more than 22 years of work with employer and other health plan sponsors, fiduciaries, administrative and other service providers, insurers, and other clients on health benefit program and product design, documentation, administration, compliance, risk management, and public policy matters.  The publisher of Solutions Law Press, Ms. Stamer also publishes, conducts training and speaks extensively on these and related concerns for the ABA, the Bureau of National Affairs and many other organizations.  For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.   For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

If you need assistance with evaluating or responding to this new legislation or other employee benefits, employment, compensation or other management concerns, wish to inquire about compliance, risk management or training, or need legal representation on other matters please contact Cynthia Marcotte Stamer at cstamer@cttlegal.com, 214.270.2402; or your other preferred Curran Tomko Tarski LLP attorney.

If you found this information of interest, you also may be interested in reviewing other updates and publications by Ms. Stamer including:

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of Ms. Stamer here and learn more about  other Curran Tomko Tarski LLP attorneys here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information to Cstamer@CTTLegal.com or registering to participate in the distribution of these and other updates on our Solutions Law Press distributions here. For important information concerning this communication click here.    

©2010 Cynthia Marcotte Stamer. All rights reserved.


Stamer To Present “2010 Health Plan Checkup” At Annual DFW ISCEBS Employee Benefits Fundamentals Workshop

February 22, 2010

 

Cynthia Marcotte Stamer will discuss the latest changes and requirements affecting employer sponsored group health plans, their sponsors, fiduciaries, insurers and vendors during her presentation titled “2010 Health Plan Checkup” at the Dallas/Fort Worth ISCEBS Annual Fundamentals Workshop currently scheduled for May 13, 2010 in Dallas. 

With Congress and federal regulators turning up the heat on health care, keeping up to date with the latest developments is both critical and increasingly challenging for employers, their employee benefits and human resources staff, and the fiduciaries, insurers, administrators and others dealing with health plan design and administration. Coming as U.S. employers continue to struggle to provide health benefits in the face of skyrocketing health benefit costs, tighter health plan medical privacy, nondiscrimination, mental health and other benefit mandates, and a host of other tighter new federal regulations impacting employment-based health plans and their sponsoring businesses, fiduciaries and administrators increasingly are forcing U.S. business leaders to make appropriate health plan cost and compliance management a key management priority. Ms. Stamer will discuss key developments, highlight new developments on the horizon, and provide tips to participants for monitoring and responding to these and other developments.  To register or for additional information, contact the Dallas/Fort Worth ISCEBS here.

Nationally recognized for her more than 22 years of work on managed care and other health and other employee benefits, human resources, insurance, and health care matters, Ms. Stamer assists employee benefit plans, their sponsoring employers, fiduciaries, insurers, administrators and others to monitor and respond to evolving legal and operational requirements and to design, administer, document and defend managed care and other medical benefit programs and practices. She also regularly advises and assists these and other clients to monitor and respond to evolving legislation, regulations, enforcement activities by federal and state regulators, evolving product and market changes, and private litigation and other disputes.  Past Chair of the American Bar Association (ABA) Health Law Section Managed Care & Insurance Interest Group and the Current Chair of the ABA RPTE Employee Benefits & Compensation Committee, an ABA Joint Committee on Employee Benefits Council member, Chair of the Curran Tomko Tarski Labor, Employment & Employee Benefits Practice and Board Certified in Labor & Employment Law, Ms. Stamer also is a widely published author and highly regarded speaker on these and other employee benefit and human resources matters.  Some other recent updates on these topics recently published by Ms. Stamer include :

For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.   For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

If you need assistance with these or other compliance concerns, wish to inquire about federal or state regulatory compliance audits, risk management or training, assistance investigating or responding to a known or suspected compliance or risk management concern, or need legal representation on other matters please contact the author of this update, Cynthia Marcotte Stamer, CTT Labor & Employment Practice Chair at cstamer@cttlegal.com, 214.270.2402; or your other preferred Curran Tomko Tarski LLP attorney.

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of Ms. Stamer here and learn more about  other Curran Tomko Tarski LLP attorneys here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information to Cstamer@CTTLegal.com or registering to participate in the distribution of these and other updates on our Solutions Law Press distributions here. For important information concerning this communication click here.    If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to here.

©2010 Cynthia Marcotte Stamer. All rights reserved.


New Mental Health Parity Regulations Require Health Plan Review & Updates

January 31, 2010

By Cynthia Marcotte Stamer

Employer and union-sponsored group health plans and insurers generally must update their group health plans to comply with expanded federal “mental health parity” regulations (MHP Regulations) published on Friday, January 29, 2010 will require changes to most covered group health plans to comply with the new rules and to make adjustments to broader benefit provisions as appropriate to mitigate potential cost implications no later than the first plan year beginning after June 30, 2010.

Jointly published by the Treasury, Health & Human Services and Labor Departments and available for review here , the MHP Regulations interpret and implement federal rules prohibiting group health plans and their insurers from imposing certain special limits on benefits provided for mental health and substance abuse treatments not applicable to general medical or surgical benefits. 

The Paul Wellstone and Pete Domenici Mental Health Parity and Addition Equity Act of 2008, Public Law 110-343 (MHPAEA) expands the scope of prohibited restrictions on mental health benefits beginning after June 30, 2010.   Under the MHPAEA amendments, any covered group health plan that includes mental health and substance use disorder benefits along with standard medical and surgical benefits generally cannot apply more limited benefit limits, out-of-pocket cost limitations, prior authorization and utilization review or other benefit restrictions than apply to medical or surgical benefits.  In addition, group health plan utilization review, medical necessity and appropriateness and other rules and procedures used to decide mental health and substance abuse benefits generally must be based on the same level of scientific evidence used by the group health plan or insurer to determine medical and surgical benefits.

Before the MHPAEA amendments took effect, the Mental Health Parity Act of 1996 (MHPA) generally only prohibited group health plans from applying more restrictive aggregate lifetime and annual dollar limits on mental health benefits than applied to general medical or surgical benefits and did not extend these restrictions to substance use disorder benefits.

The MHP Regulations generally apply to group health plans of employers with 50 or more workers that offer mental health or substance use disorder benefits for plan years beginning on or after July 1, 2010.  Until then, covered group health plans and their insurers generally must continue to comply with the more limited mental health parity requirements imposed under the MHPA, as well as other federal group health plan mandates.

Federal law increasingly is curtailing the significant latitude that employers and unions once enjoyed in deciding the benefits, eligibility and other terms and conditions of their group health plans, including many significant changes that took effect or will take effect during 2009 and 2010.   You can learn more about some of these developments by reviewing the 2009 Health Plan Update presentation posted here.  In light of the liabilities and costs arising under these and other rules, plan sponsors, administrators, fiduciaries and executives with responsibility over these plans, their establishment, funding or administration should take prompt and prudent steps to verify that their plan documents, communications, agreements and practices are updated to minimize risks and avoid unanticipated expense.

If your organization needs assistance with monitoring, assessing, managing or defending these or other health or other employee benefit, labor and employment, or compensation practices, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer or another Curran Tomko Tarski LLP attorney of your choice.  Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a nationally recognized author and speaker, Ms. Stamer is experienced with assisting employers and others about compliance with health and other employee benefit, labor and employment laws, safety, compensation, insurance, and other laws.  She also advises and defends employers and other plan sponsors, fiduciaries, employee benefit plans and others about litigation and other disputes relating to these matters, as well as charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. She has counseled and represented employers on these and other workforce matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.   For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here.  Examples of other recent updates that may be of interest include:

For important information concerning this communication click here.   If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

©2009 Cynthia Marcotte Stamer. All rights reserved.


DOL Plans To Tighten Employment Protections For Disabled Veterans & Other Disabled Employees Signals Need For Businesses To Tighten Defenses

December 18, 2009

By Cynthia Marcotte Stamer

U.S. businesses need to tighten their disability discrimination defenses in light of announced U.S. Department of Labor (DOL) plans to plans to tighten regulatory protections for and step up enforcement of laws protecting disabled veterans and other disabled employees.

Secretary of Labor Hilda Solis on December 7, 2009 announced plans to revise and tighten regulations implementing the disability discrimination provisions of Section 503 of the Rehabilitation Act of 1973, as amended, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (VEVRAA) as part of the DOL Regulatory Agenda for the upcoming year.  These laws require Federal contractors to take affirmative action to employ individuals with disabilities and disabled veterans. Both laws are enforced by the Department’s Office of Federal Contract Compliance Programs (OFCCP) and generally apply to federal government contractors and subcontractors. 

In furtherance of these goals, OFCCP recently published:

  • An Advance Notices of Proposed Rulemaking (ANPRM) concerning “The Evaluation of Recruitment and Placement Results under Section 503 of the Rehabilitation Act of 1973, as amended, (Section 503).” (ANPRM); and
  • The Evaluation of Recruitment and Placement Results under the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (VEVRAA) Notice of Proposed Rulemaking (NPRM).

In preparation for these regulatory changes, the OFCCP will be inviting public comment proposals to tighten these affirmative action requirements, holding town hall meetings, and inviting other input.

SECTION 503 ANPRM

As part of the ANPRM concerning disability discrimination in violation of Section 503, OFCCPE is compiling research and information barriers to employment that individuals with disabilities face.  Toward that end, it plans to review data that may be used for establishing numerical goals. The agency plans to conduct several Town Hall meetings through Spring 2010.  The ANPRM will invite the public to comment on ways to improve employment opportunities for individuals with disabilities. The ANPRM will seek comments on issues such as:

  • How affirmative action requirements can be strengthened so that employment opportunities for people with disabilities are measurably increased;
  • How federal contractors and subcontractors can improve monitoring of their employment practices to identify barriers to the employment of individuals with disabilities and improve employment opportunities; and
  • What specific employment practices have been verifiably effective in the recruitment.

VERRA NPRM

Concurrently, the VEVRRA NPRM is targeted at supporting the successful transition of servicemen and women into the civilian workforce, especially disabled veterans and those returning from Iraq and Afghanistan. OFCCP plans to design the proposed VEVRRA regulation to:

  • Increase employment opportunities for protected veterans with federal contractors and subcontractors; and
  • Strengthen affirmative action requirements so that federal contractors and subcontractors will be required to increase monitoring of employment practices in order to improve recruitment, hiring, training and other employment opportunities for veterans.

EMPLOYER STRATEGIES FOR MITIGATING DISABILITY DISCRIMINATION EXPOSURES

The OFCCP’s announcement of plans to seek to tighten affirmative action protections for veterans and other employees with disabilities reflects the heightened emphasis that the OFCCP and other federal agencies are placing the enactment and enforcement of protections for persons with disabilities under the Obama Administration. 

Following on the heels of Congress’ recent expansion of the availability of the employment disability discrimination protections of the Americans With Disabilities Act and new genetic information nondiscrimination requirements under the Genetic Information Nondiscrimination Act, the OFCCP’s plans to tighten existing OFCCP affirmative action requirements for persons with disabilities reflect the heightened disability discrimination risks for employers. 

U.S. businesses concerned about these developments may wish to pursue a variety of steps to help mitigate their risks.  For instance, government contractors and other employers may wish to consider:

  • Broadening efforts to recruit persons with disabilities where appropriate and document these efforts
  • Auditing existing employment, recruitment and other policies and practices for compliance with these evolving federal requirements concerning the employment rights of persons with disabilities;
  • Conducting well-documented training and other activities that demonstrate your company’s commitment/openness to the employment of veterans and others with disabilities;
  • Promptly conducting well-documented investigations into claims and other events that might suggest possible prohibited employment discrimination against persons with disabilities;
  • Monitoring OFCCP, EEOC and other regulatory and enforcement activities for the proposal or enactment of new requirements or enforcement positions;
  • Submitting comments or providing other input to federal regulators and legislators regarding regulations or legislation that might be of concern before it is enacted, where appropriate; and
  • Reviewing and tightening disability discrimination reporting and investigation procedures; and
  • Evaluating the adequacy of your company’s existing employment practices and other liability insurance in light of expanding liability exposures.

If you have questions about or need assistance evaluating, commenting on or responding to these or other employment, health or other employee benefit, workplace health and safety, corporate ethics and compliance or other concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer.  Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation and employee benefit, workplace safety, and other labor and employment, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.   For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here.  Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

GINA Discussion Topic At February HHS Advisory Committee on Genetics, Health & Society Meeting

Employee Benefit Plan Sponsors & Fiduciaries Urged To Review Bonding, Credentials of Staff & Service Providers Under ERISA

Added IRS Guidance For Correcting Employment Tax Overpayments Released

Labor Department To Expand Employee Benefits, Wage & Hour, OSHA & Other Reporting & Disclosure Requirements & To Implement Other New Employee Benefit Regulations

Preventive HR Strategies to Minimize Post Holiday Celebration Legal Hangovers

IRS Publishes Table For Determining Qualified Plan Covered Compensation for Purposes of Code § 401(l)(5)(E)

PBGC Expands Pension Benefit Protection For Military Service Members As Justice Department Files 22nd USERRA Military Leave Lawsuit Against An Employer Since January

Rising Defined Benefit Plan Underfunding & Changing Rules Create New Obligations & Risks For Business

Justice Department Suit against MasTec Advanced Technologies For Violating Army Reserve Member’s Rights Highlights Expanding Employer Military Leave Risks & Liabilities

Employer H1N1 Virus Risk Management Requires Employer Care To Manage Virus Risks Without Violating Employment Discrimination or Other Laws

New GINA Genetic Information Based Employment Discrimination & Confidentiality Mandates Take Effect

SHRM Urges American’s To Oppose HR 3962, The Affordable Health Care For America Act

Businesses Cautioned To Strengthen Investigation & Employment Practices To Minimize Potential Exposure To Retaliation Claims In Light Of Recent Supreme Court Retaliation Decision

OFCCP To Apply Special Procedures, Heightened Scrutiny To Equal Employment Practices of Government Contractors, Subcontractors On ARRA Funded Projects

US and UK Agree to Share Information & Cooperate On Pension Security As US Defined Benefit Plan Sponsors Face Tough New Defined Benefit Plan Funding Requirements

Congress Considering Extending & Expanding Group Health Plan COBRA Subsidy Mandates On Heels of Enactment of Expanded Military Leave-Related Family Leave Mandates

EEOC Prepares To Broaden “Disability” Definition Under ADA Regulations

Tighten Employment, Ethics & Internal Controls Policies & Practices To Minimize DOJ & Other Antitrust Exposures

OSHA Final Rule Updates OSHA Personal Protective Equipment Standards

“Disability” Definition Not Retroactive, Employer Action Needed To Manage Post 1/1/2009 Risks

For important information concerning this communication click here.   If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

©2009 Cynthia Marcotte Stamer. All rights reserved.


Labor Department To Expand Employee Benefits, Wage & Hour, OSHA & Other Reporting & Disclosure Requirements & To Implement Other New Employee Benefit Regulations

December 8, 2009

 By Cynthia Marcotte Stamer

The U.S. Department of Labor (Labor Department) plans to implement a host of new employee benefit and employment regulations seeking to strengthen employee benefit, wage and hour, safety and other protections with greater transparency and disclosure, the Labor Department announced yesterday.

Employee Benefits, Wage & Hour, OSHA & Other Rules Seek To Protect Workers With Transparency

Employee Benefits Security Administration (EBSA) plans to implement a host of new rules designed to strengthen retirement security by expanding the private employee benefit plan disclosure requirements and enhancing the availability of information to pension plan participants and beneficiaries and employers, according to the Department of Labor (DOL) 2009 Regulatory Agenda (the “Regulatory Agenda”) announced yesterday.

According to the Regulatory Agenda, EBSA plans to promote these goals through the implementation of a host of new rules including: 

  • Fiduciary Requirements for Disclosure in Participant-Directed Individual Account Plans, which would increase transparency between individual account pension plans and their participants and beneficiaries by ensuring that participants and beneficiaries are provided the information they need, including information about fees and expenses, to make informed investment decisions.
  • Amendment of Standards Applicable to General Statutory Exemption for Services, which would require service providers to disclose to plan fiduciaries services, fees, compensation and conflicts of interest information.
  • Annual Funding Notice for Defined Benefit Plans, which would require defined benefit plan administrators to provide all participants, beneficiaries and other parties with detailed information regarding their plan’s funding status.
  • Periodic Pension Benefits Statements, which would require pension plans to provide participants and certain beneficiaries with periodic benefit statements. 
  • Multiemployer Plan Information Made Available on Request, which would require pension plan administrators to provide copies of financial and actuarial reports to participants and beneficiaries, unions and contributing employers on request.

The 2009 Regulatory Agenda highlights the most noteworthy and significant regulatory projects that the Labor Department has established for the EBSA, the Employment Standards Administration (ESA), Mine Safety and Health Administration (MSHA), Occupational Safety and Health Administration (OSHA), and Employment and Training Administration (ETA) for the upcoming year.  In addition to the transparency rules planned for EBSA, the 2009 Regulatory Agenda also indicates that employers can expect new Labor Department regulations targeting transparency in other areas.  These include:

  • The MSHA to propose a rule on Notification of Legal Identity, which would require mine operators to provide increased identification information, would allow the agency to better target the most egregious and persistent violators and deter future violations.
  • The Office of Labor-Management Standards’ to propose regulations on Notification of Employee Rights Under Federal Labor Laws, which would implement Executive Order 13496 and require all Government contracting agencies to include a contract clause requiring contractors to inform workers of their rights under Federal labor laws.
  • The Wage and Hour Division to update its regulations about Records to be Kept by Employers Under the Fair Labor Standards Act to enhance the transparency and disclosure to workers as to how their wages are computed and to allow for new workplace practices such as telework and flexiplace arrangements.
  • OSHA to modify its Hazard Communication Standard to require standardized labeling requirements and order of information for safety data sheets and to update its Occupational Injury and Illness Recording and Reporting Requirements rule, which would propose the collection of additional data to help employers and workers track injuries at individual workplaces, improve the Nation’s occupational injury and illness information data, and assist the agency in its enforcement of the safety and health workplace requirements.

Other Employee Benefit Regulations Planned

Beyond its planned EBSA transparency initiative, the 2009 Regulatory Agenda reflects that other EBSA regulatory priorities for the year ahead include:

  • Issue guidance implementing the group health plan Genetic Information Nondiscrimination Act of 2008 (GINA) amendments to ERISA which generally prohibit group health plans from discriminating in health coverage based on genetic information and from collecting genetic information.  This will be a joint rulemaking action with the Departments of Health and Human Services and the Treasury. 
  • Provide guidance regarding the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) amendments to ERISA.  MHPAEA creates parity for mental health and substance use disorder benefits under group health plans by mandating that any financial requirements and treatment limitations applicable to mental health and substance abuse disorder benefits to be no more restrictive than predominant requirements or limitations applied to substantially all medical and surgical benefits covered by a plan. 
  • Issue guidance clarifying the circumstances under which health care arrangements established or maintained by state or local governments for the benefit of non-governmental employees do not constitute an employee welfare benefit plan for purposes of ERISA.
  • Propose amendments to its regulations to clarify the circumstances under which a person will be considered a fiduciary when providing investment advice to employee benefit plans and their participants and beneficiaries of such plans.
  • Explore steps it can take by regulation, or otherwise, to encourage the offering of lifetime annuities or similar lifetime benefits distribution options for participants and beneficiaries of defined contribution plans. 

Employers and employee benefit plan sponsors, fiduciaries, and service providers should take into account these planned regulatory changes for budgeting and program design purposes and keep alert for announcements of proposed or final regulations or other guidance in these and other areas.

If your organization needs assistance with monitoring, assessing, managing or defending these or other labor and employment, compensation or benefit practices, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer or another Curran Tomko Tarski LLP attorney of your choice.  Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a nationally recognized author and speaker, Ms. Stamer is experienced with advising and assisting employers with these and other labor and employment, employee benefit, compensation, risk management  and internal controls matters. Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation, health and other employee benefit, workplace safety, and other labor and employment laws, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. She has counseled and represented employers on these and other workforce matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.   For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here.  Examples of other recent updates you may have missed include:

For important information concerning this communication click here.   If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

 ©2009 Cynthia Marcotte Stamer. All rights reserved.


Employer H1N1 Virus Risk Management Requires Employer Care To Manage Virus Risks Without Violating Employment Discrimination or Other Laws

November 30, 2009

As the Centers for Disease Control (CDC) continues cautioning Americans to expect a resurgence of the H1N1 virus, employers should continue to take prudent steps to defend their organization and their workers against a widespread H1N1 outbreak and the attendant lost time, health and disability costs, OSHA and other liability exposures and other personal and financial consequences likely to result from an outbreak. 

Employers wishing to deter the spread of the disease in their workplace should educate workers about these recommendations and consider taking steps to encourage workers to comply with these recommendations. When planning or taking steps to protect their workplaces from the H1N1 virus pandemic or other outbreaks of communicable diseases, however, employers must use care to avoid violating the Americans With Disabilities Act or other employment laws.

Preventing, Recognizing & Mitigating Risks of H1N1

Although the number of reported cases of H1N1 virus cases has declined in many states in recent weeks, CDC officials are warning American’s that the crisis is not over yet.  CDC officials last week warned Americans to expect H1N1 infection to rise as the holiday approaches and the winter progresses. With flu activity already higher than what is seen during the peak of many regular flu seasons and the H1NA virus accounting for almost all of the flu viruses identified so for this season,  Accordingly,  the CDC continues to encourage Americans to be alert for symptoms of H1N1 or other flu and to take other precautions including to get vaccinated.

Employers should continue to encourage workers and their families to take precautions to avoid catching the virus, to be on the watch for H1N1 virus or other flu infection and to respond appropriately if they, members of their families or others in the workplace exhibit these symptoms.   To help promote health habits within their workforce, many businesses may want to download and circulate to employees and families the free resources published by the CDC here.  Businesses and other concerned parties also can track governmental reports about the swine flu and other pandemic concerns at here.   

For those not already suffering from the virus and particularly for those at higher risk, the CDC continues to recommend vaccination. People recommended by the CDC to receive the vaccine as soon possible include:  health care workers; pregnant women; people ages 25 through 64 with chronic medical conditions, such as asthma, heart disease, or diabetes; anyone from 6 months through 24 years of age; and people living with or caring for infants under 6 months old.  As the vaccine becomes available, many employers are encouraging workers and their families to get vaccinated by offering vaccination clinics at or near their worksites, arranging for health plan coverage for vaccinations with reduced or no co-payments or deductibles, and/or sharing information about government sponsored or other vaccination clinics. 

While the CDC says getting employees and their families to get a flu shot remains the best defense against a flu outbreak, it also says getting employees and family members to consistently practice good health habits like covering a cough and washing hands also is another important key to prevent the spread of germs and prevent the spread of respiratory illnesses like the flu.  Employers should encourage employees and their families to take the following steps: 

  • Avoid close contact with people who are sick. When you are sick, keep your distance from others to protect them from getting sick too;
  • Stay home when you are sick to help prevent others from catching your illness;
  •  Cover your mouth and nose;
  • Cover your mouth and nose with a tissue when coughing or sneezing. It may prevent those around you from getting sick;
  • Clean your hands to protect yourself from germs;
  • Avoid touching your eyes, nose or mouth;
  • Germs are often spread when a person touches something that is contaminated with germs and then touches his or her eyes, nose, or mouth; and
  • Practice other good health habits.  Get plenty of sleep, be physically active, manage your stress, drink plenty of fluids, and eat nutritious food.

Employers also should encourage workers and their families to be alert to possible signs of H1N1 or other flu symptoms and to respond appropriately to possible infection.  According to the CDC, all types of flu including H1NA typically include many common symptoms, including:

  • Fever
  • Coughing and/or sore throat
  • Runny or stuffy nose
  • Headaches and/or body aches
  • Chills
  • Fatigue

Patients suffering from H1N1 flu usually report these same symptoms, but the symptoms often are more severe. In addition to the above symptoms, a number of H1N1 flu cases reported vomiting and diarrhea.

CDC recommends individuals diagnosed with H1N1 flu should:

  • Stay home and avoid contact with others for at least 24 hours after a fever (100°F or 37.8°C) is gone without the use of fever reducing medicine except to get medical care or for other things that must be done that no one else can do;
  • Avoid close contact with others, especially those who might easily get the flu, such as people age 65 years and older, people of any age with chronic medical conditions (such as asthma, diabetes, or heart disease), pregnant women, young children, and infants;
  • Clean hands with soap and water or an alcohol-based hand rub often, especially after using tissues or coughing/sneezing into your hands;
  • Cover coughs and sneezes;
  • Wear a facemask when sharing common spaces with other household members to help prevent spreading the virus to others. This is especially important if other household members are at high risk for complications from influenza;
  • Drink clear fluids such as water, broth, sports drinks, or electrolyte beverages made for infants to prevent becoming dehydrated;
  • Get plenty of rest;
  • Follow doctor’s orders; and
  • Watch for signs for a need for immediate medical attention. Suffers should get medical attention right away if the sufferer has difficulty breathing or chest pain,  purple or blue discoloration of the lips, is vomiting and unable to keep liquids down, or shows signs of dehydration, such as feeling dizzy when standing or being unable to urinate.

In seeking to contain the spread of the virus within their workplace, employers also should be sensitive to workplace policies or practices that may pressure employees with a contagious disease to report to work despite an illness and consider whether the employer should adjust these policies temporarily or permanently in light of the ongoing pandemic.  For instance, financial pressures and the design and enforcement of policies regarding working from home and/or qualifying for paid or unpaid time off significantly impact the decisions employees make about whether to come to work when first experiencing symptoms of illness.  Employers of workers who travel extensively – may wish to delay or restrict travel for some period. 

Employers Must Employment Discrimination & Other Legal Compliance Risks

Many employers may want to evaluate and appropriately revise existing policies with an eye to better defending their workforce against a major outbreak.  Whether or not the disease afflicts any of its workers, businesses can anticipate the swine flu outbreak will impact their operations – either as a result of occurrences affecting their own or other businesses or from workflow disruptions resulting from safeguards that the business or other businesses implement to minimize swine flu risks for its workforce or its customers.  Many businesses also will want to prepare backup staffing and production strategies to prepare for disruptions likely to result if a significant outbreak occurs. 

Employers planning for or dealing with an H1N1 or other epidemic in their workplace should exercise care to avoid violating the nondiscrimination and medical records confidentiality provisions of the Americans with Disabilities Act (ADA) and/or the Genetic Information Nondiscrimination Act (GINA), the Family & Medical Leave Act of 1990 (FMLA), the Fair Labor Standards Act (FLSA) and applicable state wage and hour laws, and other employment and privacy laws.

Improperly designed or administered medical inquiries, testing, vaccination mandates and other policies or practices intended to prevent the spread of disease may expose an employer to disability discrimination liability under the ADA or GINA.  For instance, the ADA generally prohibits an employer from making disability-related inquiries and requiring medical examinations of employees, except under limited circumstances permitted by the ADA. Likewise, improperly designed or communicated employer inquiries into family medical status which could be construed as inquiring about family medical history also may raise exposures under genetic information nondiscrimination and privacy mandates of GINA that took effect November 21, 2009.

During employment, the ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity. Generally, a disability-related inquiry or medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that:

  • An employee’s ability to perform essential job functions will be impaired by a medical condition; or
  • An employee will pose a direct threat due to a medical condition.

This reasonable belief “must be based on objective evidence obtained, or reasonably available to the employer, prior to making a disability-related inquiry or requiring a medical examination.”

Additionally, the ADA prohibits employers from making disability-related inquiries and conducting medical examinations of applicants before a conditional offer of employment is made.  It permits employers to make disability-related inquiries and conduct medical examinations if all entering employees in the same job category are subject to the same inquiries and examinations.   All information about applicants or employees obtained through disability-related inquiries or medical examinations must be kept confidential. Information regarding the medical condition or history of an employee must be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record.  The EEOC Pandemic Preparedness In The Workplace and The Americans With Disabilities Act Guidance makes clear that employer inquiries and other H1N GINA’s inclusion of information about the “manifestation of a disease or disorder in family members” is likely to present a liability trap door for many unsuspecting employers H1N1 and other epidemic planning and response activities should be carefully crafted to avoid violating these proscriptions.

GINA’s inclusion of information about the “manifestation of a disease or disorder in family members” also could present a liability trap door for some employers designing pandemic or other workplace wellness, disease management or other programs.  GINA defines “genetic information” broadly as including not only information about genetic tests about an individual or his family member as well as information about the “manifestation of a disease or disorder in family members of such individual, GINA also specifies that any reference to genetic information concerning an individual or family member includes genetic information of a fetus carried by a pregnant woman and an embryo legally held by an individual or family member utilizing an assisted reproductive technology.  For more information about the new GINA genetic information employment discrimination rules, see here.

As part of their pandemic planning, employers also generally should review their existing wage and hour and leave of absence practices.  Employers should ensure that their existing or planned practices for providing paid or unpaid leave are designed to comply with the FLSA and other wage and hour and federal and state leave of absence laws. Employers also should review and update family and medical leave act and other sick leave policies, group health plan medical coverage continuation rules and notices and other associated policies and plans for compliance with existing regulatory requirements, which have been subject to a range of statutory and regulatory amendments in recent years.  If considering allowing or requiring employees to work from home, employers also need to implement appropriate safeguards to monitor and manage employee performance, to protect the employer’s ability to comply with applicable wage and hour, worker’s compensation, OSHA and other safety, privacy and other legal and operational requirements. 

Businesses, health care providers, schools, government agencies and others concerned about preparing to cope with pandemic or other infectious disease challenges also may want to review the publication “Planning for the Pandemic” authored by Curran Tomko Tarski LLP partner Cynthia Marcotte Stamer available at hereFLU.gov is a one-stop resource with the latest updates on the H1N1 flu. An additional resource is CDC INFO, 1-800-CDC-INFO (1-800-232-4636), which offers services in English and Spanish, 24 hours a day, 7 days a week.  Schools, health care organizations, restaurants and other businesses whose operations involve significant interaction with the public also may need to take special precautions.  These and other businesses may want to consult the special resources posted  here

Cynthia Marcotte Stamer and other members of Curran Tomko and Tarski LLP are experienced with advising and assisting employers with these and other labor and employment, employee benefit, compensation, and internal controls matters. If your organization needs assistance with assessing, managing or defending these or other labor and employment, compensation or benefit practices, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer.  Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a nationally recognized author and speaker, Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation, health and other employee benefit, workplace safety, and other labor and employment laws, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, health and other employee benefit and other personnel and staffing matters for more than 22 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.   For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here.

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here.  Examples of other recent updates you may have missed include:

For important information concerning this communication click here.   If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

©2009 Cynthia Marcotte Stamer. All rights reserved. 


EEOC Prepares To Broaden “Disability” Definition Under ADA Regulations

September 18, 2009

Proposed regulations modifying existing Equal Employment Opportunity Commission (EEOC) rules concerning the conditions that an individual must meet to qualify as having a “disability” for purposes of claiming protection under the Americans with Disabilities Act (ADA) are expected to be published in the Federal Register the week of September 21, 2009.

On September 16, 2009, the EEOC announced that Commissioners had approved a Notice of Proposed Rulemaking (Proposed Regulation) which would make several significant changes to the its current regulatory definition of the term “disability” for purposes of the ADA.  The EEOC announced this week that the Proposed Regulation is expected to be published in the Federal Register the week of September 21, 2009.  Interested persons will have 60 days from the publication date of the Proposed Rule to submit comments to the EEOC concerning the Proposed Regulation.

Why The Change?

The proposed changes are intended to respond to amendments enacted under the ADA Amendments Act (ADAAA), which took effect January 1, 2009.   Enacted on September 25, 2008, the ADAAA made a number of significant changes to the definition of “disability” in the ADA as well as directed EEOC to amend its existing ADA regulation to reflect the changes made by the ADAAA.

The ADAAA amendments to the ADA definition of “disability” make it easier for certain individuals alleging employment discrimination based on disability to establish disability status under the ADA’s definition of “disability” by overruling various Supreme Court holdings and portions of EEOC’s existing ADA regulations considered by many members of Congress as too narrowly applying the definition of “disability.”  

While the ADAAA retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment, provisions of the ADAAA that took effect on January 1, 2009 change the required interpretation of these terms.  Under the ADAAA, “major life activities” now include both many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating), as well as major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”). 

In addition to these clarifications, the ADAAA also broadens the reach of the ADA’s definition of “disability” in various other respects.  For instance, the ADAAA:

  • Asserts that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
    Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
  • Changes the definition of “regarded as” so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor; and
  • Provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.

As part of the required implementation of its provisions, the ADAAA also mandates that the EEOC revise that portion of its existing regulations defining the term “substantially limits” and “major life activities” to comport to the changes enacted by the ADAAA.  In response to this statutory direction, the Proposed Regulation to be published next week proposes changes both to the ADA regulation itself and to the Interpretive Guidance (also known as the Appendix) that was published at the same time as the original ADA regulation. See 29 C.F.R. section 1630.  The Appendix provides further explanation from the EEOC on how its ADA regulations should be interpreted.

About The New Guidance and Proposed Regulations

In anticipation of the publication of the Proposed Regulation, the EEOC on September 16, 2009 sought to provided a peek into its new post-ADAAA construction of the ADA definition of disability by releasing its “Questions and Answers on the Notice of Proposed Rulemaking for the ADA Amendments Act of 2008” Questions and answers on the Notice of Proposed Rulingmaking for the ADA Amendments Act of 2008 (the “Q&As”). 

The Q&As and other EEOC statements released this week indicate that the Proposed Regulation will emphasize that the definition of disability — an impairment that poses a substantial limitation in a major life activity — must be construed broadly. It will provide that that major life activities include “major bodily functions;” that mitigating measures, such as medications and devices that people use to reduce or eliminate the effects of an impairment, are not to be considered when determining whether someone has a disability; and that impairments that are episodic or in remission, such as epilepsy, cancer, and many kinds of psychiatric impairments, are disabilities if they would “substantially limit” major life activities when active. The regulation also will provides a streamlined means through which persons claiming disability may demonstrate a substantial limitation in the major life activity of working, and implements the ADAAA’s new standard for determining whether someone is “regarded as” having a disability.

Required Response

Employers face increasing exposure to disability claims as a result of the ADAAA amendments, new genetic information nondiscrimination rules enacted under the Genetic Information Nondiscrimination Act (GINA), and a heightened emphasis on disabilities discrimination law enforcement by the Obama Administration.  In light of this rising exposure, employers and others covered by the ADA should evaluate their existing practices in light of the Q&As and make adjustments, submit comments regarding the Proposed Regulations or both as part of their efforts to manage their organization’s ADA liability exposure.  Because the ADAAA already is in effect, employers already face the possibility of being called upon to defend their hiring and employment practices under the amended ADAAA definition of disability, even though the EEOC has not issued final guidance.  For this reason, it is important that employers take timely action both to update relevant written policies and procedures, as well as to change hiring and other operational processes, conduct training, implement appropriate oversight and monitoring and take other steps to mitigate these exposures.

If you have questions about or need assistance evaluating, commenting on or responding to the  Proposed Regulations, the Q&As, or other employment, compensation, employee benefit, workplace health and safety, corporate ethics and compliance practices, concerns or claims, please contact the author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer.  Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group, Ms. Stamer is experienced with assisting employers and others about compliance with federal and state equal employment opportunity, compensation and employee benefit, workplace safety, and other labor and employment, as well as advising and defending employers and others against tax, employment discrimination and other labor and employment, and other related audits, investigations and litigation, charges, audits, claims and investigations by the IRS, Department of Labor and other federal and state regulators. Ms. Stamer has advised and represented employers on these and other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years. Ms. Stamer also speaks and writes extensively on these and other related matters. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.   For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi LLP team, see here

Other Information & Resources

We hope that this information is useful to you. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information here or registering to participate in the distribution of our Solutions Law Press HR & Benefits Update distributions here.  Some other recent updates that may be of interested include the following, which you can access by clicking on the article title:

For important information concerning this communication click here.   If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject here.

©2009 Cynthia Marcotte Stamer. All rights reserved. 


ADAAA Amendment Broader ADA “Disability” Definition Not Retroactive, Employer Action Needed To Manage Post 1/1/2009 Risks

August 25, 2009

Provisions of the ADA Amendments Act (ADAAA) that expand the definition of “disability” under the Americans with Disabilities Act (ADA) “in favor of broad coverage of individuals” do not apply to actions taken before effective date of the ADAAA, January 1, 2009, according to a recent decision of the U.S. Circuit Court of Appeals for the District of Columbia. While the holding provides some comfort for employers in relation to pre-January 1, 2009 actions, employers need to take appropriate steps to mitigate disability claim risks for actions on or after the January 1, 2009 effective date of the ADAAA.

As signed into law on September 25, 2008, the ADAAA amended the definition of “disability” for purposes of the disability discrimination prohibitions of the ADA to make it easier for an individual seeking protection under the ADA to establish that that has a disability within the meaning of the ADA.  The ADAAA retains the ADA’s basic definition of “disability” as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, provisions of the ADAAA that took effect January 1, 2009 change the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:

  • Directs EEOC to revise that portion of its regulations defining the term “substantially limits;”
  • Expands the definition of “major life activities” by including two non-exhaustive lists: (1) The first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating); and (2) The second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”);
  • States that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
  • Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
  • Changes the definition of “regarded as” so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor; and
  • Provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.

The ADAAA also emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis.

In Lytes v. DC Water and Sewer Authority, D.C. Cir. No. 08-7002 (July 21, 2009), the D.C. Court of Appeals considered and rejected the retroactivity argument made by Lytes in his appeal from a trial court’s finding that he was not disabled under the ADA.  As the ADAAA took effect while his action was pending, Lytes sought to convince the Appeals Court to apply the ADAAA amended definition retroactively.  Contending that the ADAAA amendment merely clarified the existing law under the ADA, Lytes argued that the Court should apply the broader definition of disability when considering the legality of his termination from employment in 2004.

Rejecting Lytes’ retroactivity argument, the Court of Appeals ruled that the ADAAA amendment of the definition of “disability” under the ADA applies only on a prospective basis based on its finding that Congress had clearly provided that the ADAAA amendments only would apply to post-December 31, 2008 actions. Accordingly, the Court of Appeals affirmed the District Court’s finding that Lytes termination in 2004 did not violate the ADA as then effective as his lack of disabled status under the then-applicable definition of disability meant he was not entitled to accommodation.

In adopting these changes, Congress expressly sought to overrule existing employer-friendly judicial precedent construing the current provisions of the ADA and to require the Equal Employment Opportunity Commission (EEOC) to update its existing guidance to confirm with the ADAAA Amendments.

Violations of the ADA can expose businesses to substantial liability. Violations of the ADA may be prosecuted by the EEOC or by private lawsuits.  Employees or applicants that can prove they were subjected to prohibited disability discrimination under the ADA generally can recover actual damages, attorneys’ fees, and up to $300,000 of exemplary damages (depending on the size of the employer).   

While the Lytes decision indicates that businesses will not be required to defend pre-2009 actions under the amended disability standards enacted by the ADAAA, businesses should prepare to meet new challenges in defending ADA claims arising from actions taken after December 31, 2008.  The ADAAA amendments make it likely that businesses generally will face more disability claims from a broader range of employees and will possess fewer legal shields to defend themselves against these claims. These changes will make it easier for certain employees to qualify as disabled under the ADA.  Consequently, businesses should act strategically to mitigate their ADA exposures in anticipation of these changes.  

To help mitigate the expanded employment liability risks created by the ADAAA amendments, businesses generally should act cautiously when dealing with applicants or employees with actual, perceived, or claimed physical or mental impairments to minimize exposures under the ADA.  Management should exercise caution to carefully and appropriate the potential legal significance of physical or mental impairments or conditions that might be less significant in severity or scope, correctable through the use of eyeglasses, hearing aids, daily medications or other adaptive devices, or that otherwise have been assumed by management to fall outside the ADA’s scope. Employers should no longer assume, for instance, that a visually impaired employee won’t qualify as disabled because eyeglasses can substantially correct the employee’s visual impairment. 

Likewise, businesses should be prepared for the EEOC and the courts to treat a broader range of disabilities, including those much more limited in severity and life activity restriction, to qualify as disabling for purposes of the Act. Businesses should assume that a greater number of employees with such conditions are likely to seek to use the ADA as a basis for challenging hiring, promotion and other employment decisions.  For this reason, businesses generally should tighten job performance and other employment recordkeeping to enhance their ability to demonstrate nondiscriminatory business justifications for the employment decisions made by the businesses.

Businesses also should consider tightening their documentation regarding their procedures and processes governing the  collection and handling records and communications that may contain information regarding an applicant’s physical or mental impairment, such as medical absences, worker’s compensation claims, emergency information, or other records containing health status or condition related information.  The ADA generally requires that these records be maintained in separate confidential files and disclosed only to individuals with a need to know under circumstances allowed by the ADA. 

As part of this process, businesses also should carefully review their employment records, group health plan, family leave, disability accommodation, and other existing policies and practices to comply with, and manage exposure under the new genetic information nondiscrimination and privacy rules enacted as part of the Genetic Information and Nondiscrimination Act (GINA) signed into law by President Bush on May 21, 2008.  Effective November 21, 2009, Title VII of GINA amends the Civil Rights Act to prohibit employment discrimination based on genetic information and restricts the ability of employers and their health plans to require, collect or retain certain genetic information. Under GINA, employers, employment agencies, labor organizations and joint labor-management committees face significant liability for violating the sweeping nondiscrimination and confidentiality requirements of GINA concerning their use, maintenance and disclosure of genetic information. Employees can sue for damages and other relief like currently available under Title VII of the Civil Rights Act of 1964 and other nondiscrimination laws.  For instance, GINA’s employment related provisions include rules that will:

  • Prohibit employers and employment agencies from discriminating based on genetic information in hiring, termination or referral decisions or in other decisions regarding compensation, terms, conditions or privileges of employment;
  • Prohibit employers and employment agencies from limiting, segregating or classifying employees so as to deny employment opportunities to an employee based on genetic information;
  • Bar labor organizations from excluding, expelling or otherwise discriminating against individuals based on genetic information;
  • Prohibit employers, employment agencies and labor organizations from requesting, requiring or purchasing genetic information of an employee or an employee’s family member except as allowed by GINA to satisfy certification requirements of family and medical leave laws, to monitor the biological effects of toxic substances in the workplace or other conditions specifically allowed by GINA;
  • Prohibit employers, labor organizations and joint labor-management committees from discriminating in any decisions related to admission or employment in training or retraining programs, including apprenticeships based on genetic information;
  • Mandate that in the narrow situations where limited cases where genetic information is obtained by a covered entity, it maintain the information on separate forms in separate medical files, treat the information as a confidential medical record, and not disclosure the genetic information except in those situations specifically allowed by GINA;
  • Prohibit any person from retaliating against an individual for opposing an act or practice made unlawful by GINA; and
  • Regulate the collection, use, access and disclosure of genetic information by employer sponsored and certain other health plans.

These employment provisions of GINA are in addition to amendments to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Employee Retirement Income Security Act of 1974 (ERISA), the Public Health Service Act, the Internal Revenue Code of 1986, and Title XVIII (Medicare) of the Social Security Act that are effective for group health plan for plan years beginning after May 20, 2009.

If you have any questions or need help reviewing and updating your organization’s employment and/or employee practices in response to the ADAAA, GINA or other applicable laws, or if we may be of assistance with regard to any other workforce management, employee benefits or compensation matters, please do not hesitate to contact the author of this update, Curran Tomko Tarksi LLP Labor & Employment Practice Chair Cynthia Marcotte Stamer at 214.270.2402.

About The Author

Management attorney and consultant Cynthia Marcotte Stamer helps businesses, governments and associations solve problems, develop and implement strategies to manage people, processes, and regulatory exposures to achieve their business and operational objectives and manage legal, operational and other risks. Board certified in labor and employment law by the Texas Board of Legal Specialization, with more than 20 years human resource and employee benefits experience, Ms. Stamer helps businesses manage their people-related risks and the performance of their internal and external workforce though appropriate human resources, employee benefit, worker’s compensation, insurance, outsourcing and risk management strategies domestically and internationally. Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble AV-Rating, Ms. Stamer also is a highly regarded author and speaker, who regularly conducts management and other training on a wide range of labor and employment, employee benefit, human resources, internal controls and other related risk management matters.  Her writings frequently are published by the American Bar Association (ABA), Aspen Publishers, Bureau of National Affairs, the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc., Atlantic Information Services, Employee Benefit News, and many others. For a listing of some of these publications and programs, see here. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. Chair of the ABA RPTE Employee Benefit and Other Compensation Committee, a council member of the ABA Joint Committee on Employee Benefits, and the Legislative Chair of the Dallas Human Resources Management Association Government Affairs Committee, she also serves in leadership positions in numerous human resources, corporate compliance, and other professional and civic organizations. For more details about Ms. Stamer’s experience and other credentials, contact Ms. Stamer, information about workshops and other training, selected publications and other human resources related information, see here or contact Ms. Stamer via telephone at 214.270.2402 or via e-mail here.

Other Helpful Resources & Other Information

If you found these updates of interest, you also be interested in one or more of the following other recent articles published in this electronic Solutions Law publication available for review here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here.

For important information concerning this communication click here.  If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@solutionslawyer.net.

©2009 Cynthia Marcotte Stamer.   All rights reserved. 


Businesses Cautioned To Strengthen Investigation & Employment Practices To Minimize Potential Exposure To Retaliation Claims In Light Of Recent Supreme Court Retaliation Decision

July 22, 2009

Businesses that fire or discipline employees increasingly face retaliation claims by disgruntled workers claiming the protection of nondiscrimination and other federal and state whistleblower and anti-retaliation laws. 

The U.S. Supreme Court’s recent decision in Crawford v. Metropolitan Gov’t of Nashville and Davidson County, No. 06-1595, highlights the need for employers to exercise constant vigilance to potential retaliation claims and the need to act to avoid retaliating, or appearing to retaliate against employees when conducting internal investigations, terminations, promotions or other workforce management activities. While the decision specifically addressed retaliation under Title VII, the use of similar language in other federal laws regulating business conducting – including those covered by the Federal Sentencing Guidelines – makes it likely that the decision has much broader implications.

Technically, the Crawford decision specifically applied to retaliation under Title VII of the Civil Rights Act of 1964 (Title VII) in the context of a sexual harassment complaint investigation.  However, business should anticipate that creative plaintiffs and their legal counsel soon will ask courts to apply the Crawford holding beyond sexual harassment to reach to claims brought by employees claiming injury in retaliation for statements made in relation to investigation of other federal statutes prohibiting retaliation.  A host of federal and state employment and other laws prohibit businesses from retaliating against employees for reporting possible prohibited conduct or seeking to exercise certain rights legally protected rights.  Because many of these statutes use the same or similar language to the anti-retaliation provisions of Title VI, share the same or similar purpose, or both,  businesses should anticipate that certain courts will be inclined to view the Crawford  rationale, if not its holding, as applicable to retaliation claims under certain of these other federal statutory prohibitions.  Accordingly, pending further guidance, most businesses interested in minimizing exposures to retaliation claims will want to design and administer investigations to avoid the impression of illegal retaliation against witnesses in sexual harassment investigations as other investigations where similar anti-retaliation provisions may apply.  Accordingly, most U.S. businesses will treat Crawford as having potential implications both in relation to sexual harassment and other investigations under Title VII as well as investigations conducted other federal laws containing similar anti-retaliation provisions.

The Crawford Decision

In its February 2, 2009 unanimous Crawford decision, the Supreme Court ruled that the anti-retaliation provisions of Title VII protect employees against retaliation for giving a “disapproving account” of unlawful behavior when responding to questions asked during the employer’s investigation of a sexual harassment discrimination, even if the employee took no further overt action to complain about, seek to remedy or stop the misconduct.

Vicky Crawford sued the employer under Title VII’s anti-retaliation provision, which prohibits an employer from terminating a worker because she “has opposed any practice made an unlawful employment practice” under Title VII.   The Crawford case arose from statements Ms. Crawford made in response questions addressed to her as part of her employer’s investigation of sexual harassment rumors.  Asked if she’d witnessed any inappropriate behavior by a supervisor, Ms. Crawford answered told the employer about a series of harassing acts by the supervisor toward herself.  Besides reporting her experience in reply to employer questions during the investigation, however, Ms. Crawford did not file a sexual harassment complaint or otherwise report her alleged sexual harassment experience to the employer.  Following the interview, the employer did not discipline the supervisor.  However, the employer subsequently fired Ms. Crawford and two other employees who also reported being harassed by the supervisor.  As part of its defense, the employer argued that Ms. Crawford’s report during the course of the investigation did not qualify as “opposition” prohibited under Title VII.  

The question before the Supreme Court was whether simply disclosing an act of harassment in answer to a question constitutes “oppos[ing]” an unlawful practice, or whether – as the court of appeals had held – opposition within the meaning of the provisions requires something more assertive.

 Applying the ordinary meaning of “oppose,” the Supreme Court unanimously found that “When an employee communicates to her employer a belief that the employer has engaged in . . . employment discrimination, that communication virtually always constitutes the employee’s opposition to the activity.”  Accordingly, the Supreme Court ruled that protected opposition under Title VII includes giving a “disapproving account” of unlawful behavior, even if the employee takes no further action on her own to seek to stop or remedy the conduct.

Explaining its conclusions, the Supreme Court stated that a contrary rule that would require a worker to engage in “active, consistent” behavior in order to engage in protected opposition would be inconsistent with common usage.  For example, the Court explained, one can “oppose capital punishment” without doing anything active to end it.  The Supreme Court rejected as “freakish” an interpretation of “opposition” that would protect an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.”

While concurring in the unanimous opinion, Justices Alito and Thomas cautioned against reading that opinion too broadly. Their opinion clarifies that in their view, covered opposition must be “active and purposive” to qualify as protected.  Consequently, they warned that the Court’s opinion should not be read to suggest that Title VII protects merely opposing a practice in principle (like opposing capital punishment) without taking any action at all to express that opposition.

 

Other Broader Potential Implications & Lessons From Crawford

Although the report by Ms. Crawford involved her notification to the employer that she too may have been sexually harassed, the implications of the Crawford decision reach more broadly. 

Crawford specifically construed the anti-retaliation provisions of 42 U. S. C. §2000e–3(a), which makes it unlawful “for an employer to discriminate against any . . . employe[e]” who (1) “has opposed any practice made an unlawful employment practice by this subchapter”, or (2) “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter”.  This provision of Title VII and other equal employment opportunity laws, as well as the Family & Medical Leave Act and various other employment laws commonly contain similar prohibitions against an employer or business discriminating against protected persons for opposing unlawful practices or making charges, testifying, assisting or participating in investigation of practices prohibited under the applicable employment law.  Consequently, there exists a significant probability that courts will apply the Crawford holding to retaliation claims brought by employees for testimony or other participation in investigation in other equal employment opportunity charges under Title VII and other employment laws.

It also is possible that employees ask the courts to extend the holding of Crawford to retaliation claims brought by employees claiming to have been retaliated against for participating in the investigation of or expressing opposition to illegal practices under a wide range of other statutes.  Beyond the employment context, many other federal laws incorporate similar prohibits against employer discrimination against employees for opposing practices made unlawful under their provisions or providing testimony or participating in investigations of potential violations of their provisions. For example,  in connection with its criminal prohibition of major fraud against the United States, paragraph (h) of 18 U.S.C § 1031 creates a right for individuals discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by an employer because of lawful acts done by the employee on behalf of the employee or others “in furtherance of a prosecution under this section (including investigation for, initiation of, testimony for, or assistance in such prosecution)” to recover for job and seniority reinstatement, 2 times the amount of back pay, interest, litigation costs and reasonable attorneys fees and other special damages.

Given these similarities, pending further guidance, U.S. businesses generally will want to exercise sensitivity when dealing with employees who express opposition, testify or otherwise participate in investigations or prosecutions of potential violations under Title VII and other federal laws that contain the same or similar anti-retaliation provisions. 

Read from this perspective, the Crawford decision highlights the advisability for businesses not to overlook the potential significance of the statements and conduct by employees involved in any internal investigation, performance, or other activity that might later form the basis of a retaliation complaint.  

Businesses generally should listen carefully when conducting investigations, employee counseling and discipline meetings, and exit interviews with an eye out for the need to investigate potential legal violations, defend against retaliation charges, or both.

Although businesses should continue to require employees to report known or suspected discrimination or other prohibited conduct in accordance with a specified formal procedure, the Crawford decision reminds businesses not to overestimate the protection afforded by the establishment of formal reporting procedures. 

Crawford also highlights the need for businesses to be careful to investigate and properly respond to new charges of discrimination or other potential legal or policy violations that may be uncovered in the course of an investigation, disciplinary meeting or exist interview.   

Additionally, businesses also should seek to evaluate the potential implications of their dealings with employees who previously have made charges, participated in investigations, or claimed other protected rights such as taking a protected leave or the like. 

Likewise, as in the defense of other employment claims, Crawford also reflects the value and importance of businesses appropriately documenting performance concerns relating to a specific employee and legitimate business challenges motivating employment actions as they arise, in the event that it subsequently becomes necessary to present evidence of a valid performance or business justification to defend against allegations by an employee claiming to have been discharged or otherwise discriminated against in retaliation for engaging in protected conduct under Title VII or other similar federal anti-retaliation laws.

Finally, businesses should keep in mind the potential value of strong documentation.  When seeking to defend against claims of discrimination or retaliation, the strength of the employer’s documentation often can play a significant role in the cost and ease of defense of the claim or charge.  Businesses should work to prepare and retain documentation not only of allegations, investigations and determinations regarding both employee performance and discipline, as well as the handling of alleged violations of equal employment opportunity or other laws.  Documentation should be prepared and retained on a systematic basis with an eye to strengthening the organization’s ability to prevent and defend against charges that the organization violated the core obligations under the applicable law as well as to defend employment decisions involving employees who may be in a position to assert retaliation claims.

The importance of good investigation and documentation practices takes on particular importance in the current tough economic environment.  While retaliation claims have been rising for many years, the recent economic downturn is fueling an increase in the number of employees seeking to claim protection in the tightening economy based on retaliation or other employment law protections.  Workforce dissention and changes in personnel also can complicate further the ability to defend these claims just as the Department of Labor and other federal regulators are turning up the enforcement heat.  As a result, appropriate investigation and documentation procedures are particularly important in the current environment.

Curran Tomko Tarski LLP Can Help

If your business needs assistance auditing, updating or defending its human resources, corporate ethics, and compliance practices, or responding to employment related or other charges or suits, please contact Ms. Stamer at cstamer@cttlegal.com, (214) 270-2402; or your favorite Curran Tomko Tarski, LLP attorney.  For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi, LLP team, see here.

The author of this article, Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer and other members of Curran Tomko and Tarski LLP are experienced with assisting employers and others about compliance with federal and state equal employment opportunity and other labor and employment, compensation and employee benefit compliance and risk management concerns, as well as advising ad defending employers against federal and state employment discrimination and other labor and employment, compensation, and employee benefit related audits, investigations and litigation, charges, audits, claims and investigations.  

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, Ms. Stamer has advised and represented employers on wage and hour and a diverse range of other labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years.  

More Information & Resources

You can review other recent human resources, employee benefits and internal controls publications and resources and additional information about the employment, employee benefits and other experience of Ms. Stamer here /the Curran Tomko Tarski LLP attorneys here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here or e-mailing this information to Cstamer@CTTLegal.com or registering to participate in the distribution of these and other updates on our Solutions Law Press HR & Benefits Update distributions here. For important information concerning this communication click here.    If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to support@SolutionsLawyer.net.

©2009 Cynthia Marcotte Stamer. All rights reserved.


Registration Open For June 23 Dallas HR 2009 Health Plan Eligibility Update Program

June 9, 2009

Amid soaring health care costs and tightening corporate budgets, employers and other group health plan sponsors, fiduciaries and administrations now also must update their group health plan eligibility and enrollment practices to comply with the American Recovery and Reinvestment Act of 2009 (the “Stimulus Bill”), COBRA subsidy mandates, HIPAA special enrollment rule amendments and a host of other changes to federal eligibility mandates that already have or will take effect this year.  Meanwhile, employers must keep a careful watch on Congress as it considers enacting sweeping health care reforms that are likely to place more obligations on employers.

Health plan eligibility design and administration plays a critical role in controlling health benefit costs and is a leading and growing source of health plan legal risk for employers, fiduciaries and administrators.  Understanding and properly managing these concerns is imperative for employers and others sponsoring or administering these programs.

Stamer Discusses Health Plan Eligibility Rules June 23

Cynthia Marcotte Stamer will explain newly effective COBRA Subsidy Rules, genetic information nondiscrimination rules and other recent and impending changes to federal health plan eligibility mandates will be explained on June 23, 2009 during a 2009 Health Plan Eligibility Update briefing hosted by the Dallas Human Resources Management Association including:

Cynthia Stamer will explain to attendees what they need to know and do about:

  • New Stimulus Bill COBRA Subsidy Rules and other special COBRA rules that took effect on February 17
  • New GINA group health plan information scheduled to take place in 2009
  • Changes to HIPAA special enrollment and nondiscrimination rules
  • Implications for group health plans based on recent changes to FMLA and USERRA regulations
  • Medicare, Medicaid and CHIP nondiscrimination rules
  • Impending college student continuation mandates
  • And more….

Get  details or register on line here or by telephoning Dallas Human Resources Management Association at 214-631-8775.

Stamer’s Health Plan Experience Extensive

The immediate past Chair of the American Bar Association’s Managed Care & Insurance Section, Cynthia Marcotte Stamer is a highly regarded legal advisor, author and speaker recognized both nationally and internationally for her expertise in the areas of health benefits and other human resource compliance matters. Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, “Cindy” recently joined Curran Tomko Tarski, LLP as the Chair of its Labor & Employment and Health Care Practices April 1, 2009.

The Managing Editor of Solutions Law Press and an Editorial Advisory Board Member and author for Employee Benefit News and other publications, Ms. Stamer is a widely published author and popular speaker. In addition to hundreds of publications on health plan and other human resources, employee benefit and internal controls issues, Ms. Stamer is the author of the “Health Plan Eligibility Toolkit.” Her work has been featured and published by the American Bar Association, BNA, SHRM, World At Work, Employee Benefit News and the American Health Lawyers Association. Her insights on human resources risk management matters have been quoted in The Wall Street Journal, the Dallas Business Journal, Managed Care Executive, HealthLeaders, Business Insurance, Employee Benefit News and the Dallas Morning News.

Ms. Stamer also serves in a number of professional leadership roles including the leadership council of the ABA Joint Committee on Employee Benefits, Vice Chair of the ABA Real Property, Probate & Trust Section and Employee Benefits & Compensation Group.

Cynthia Marcotte Stamer and other members of Curran Tomko and Tarski LLP are experienced with advising and assisting employers with these and other health plan and other employee benefit,  labor and employment, compensation, and internal controls matters. If your organization needs assistance with assessing, managing or defending its wage and hour or other labor and employment, compensation or benefit practices, please contact Ms. Stamer via e-mail here, or by calling (214) 270-2402.  For additional information about the experience, services, publications and involvements of Ms. Stamer specifically or to access some of her many publications, see here,   For more information and other members of the Curran Tomko Tarksi, LLP team, see the Curran Tomko Tarski Website.

We hope that this information is useful to you. For additional information about the experience, services, publications and involvements of Ms. Stamer specifically or to access some of her many publications, see here,   For more information and other members of the Curran Tomko Tarksi, LLP team, see the Curran Tomko Tarski Website.

You can register to receive future updates and information about upcoming programs, access other publications by Ms. Stamer and access other helpful resources here.  If you or someone else you know would like to receive updates about developments on these and other human resources and employee benefits concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here.  If you would prefer not to receive these updates, please send a reply e-mail with “Remove” in the subject line to support@SolutionsLawyer.net. You also can register to participate in the distribution of these updates by registering to participate in the Solutions Law Press HR & Benefits Update Blog here.

 ©2009 Cynthia Marcotte Stamer. All rights reserved.


102 House Members Back New Bill To Mandate Employers Give 56 Hours Paid Leave Per Year

June 9, 2009

Virtually all employers will be require to allow employees provide up to 56 hours of paid if Congress passes the “Healthy Families Act” (H.R. 2460) introduced by Representative Rosa DeLauro with the support of 101 co-sponsors on May 18, 2009.  Given the significant number of co-sponsors already on record as supporting the legislation, employers concerned about the proposed legislation need to act quickly to communicate their concerns to Congress.

If enacted as currently introduced, H.R. 2460 both would significantly expand the number of employers required by federal law to provide sick leave and overlay a mandate to provide paid sick leave in addition to the existing unpaid leave mandates currently applicable under the Family and Medical Leave Act to employers of more than 50 employees.

As proposed, H.R. 2460 would require all employers of 15 or more employees:

  • To accrue at least 1 hour of paid sick time (up to a maximum of 56 hours per calendar year) for every 30 hours worked by each employee from beginning with the first day of employment of the employee.  Exempt employees generally would be assumed to work 40 hours in each workweek for purposes of calculating accrued sick leave;
  • Guarantee employees the right to begin using accrued paid sick time for one of the purposes qualifying for sick leave under H.R. 2460 beginning with the 60th calendar day following commencement of the employee’s employment and thereafter as he accrues additional paid sick time;
  • To allow employees to carry over earned but unused paid sick time from  one calendar year to the next except under certain limited conditions; and
  • To reinstate accrued but unused leave for any employee rehired within 12 months after separating from employment and continue to recognize additional paid sick time accruals beginning with the recommencement of employment with the employer.

The purposes that H.R. 2460 would require employers to allow employees to use accrued sick leave also would be broader than those currently protected under the medical leave provisions of the FMLA.  Under H.R. 2460, employees could use sick leave for any of the following absences:

  • An absence resulting from a physical or mental illness, injury, or medical condition of the employee;
  • An absence resulting from obtaining professional medical diagnosis or care, or preventive medical care, for the employee
  • In absence for the purpose of caring for a child, a parent, a spouse, or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship (a “family member”), who has any of the conditions or needs for diagnosis or care of a physical or mental illness, injury, or medical condition or in the case of someone who is not a child, is otherwise in need of care; and
  • An absence resulting from domestic violence, sexual assault, or stalking, if the time is to seek medical attention for the employee or a family member to recover from physical or psychological injury or disability caused by domestic violence, sexual assault, or stalking or obtain or assist a family member in obtaining services from a victim services organization, psychological or other counseling; to seek relocation; or to take legal action, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from domestic violence, sexual assault, or stalking.

In addition, H.R. 2460 also would require covered employers:

  • To notify employees about their sick leave rights as dictated by H.R. 2460; and
  • Not to discharge or discriminating against (including retaliating against) any individual, including a job applicant, for exercising, or attempting to exercise, any right provided or for opposing any practice made unlawful by H.R. 2460;
  • Not to use the taking of paid sick time under H.R. 2460 as a negative factor in an employment action, such as hiring, promotion, or a disciplinary action;  
  • Not to count the paid sick time under a no-fault attendance policy or any other absence control policy;
  • Not otherwise to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under H.R. 2460; and
  • Not to discharge or in any other manner discriminate against (including retaliating against) any individual, including a job applicant, because such individual has filed an action, or has instituted or caused to be instituted any proceeding, under or related to H.R. 2450; has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under H.R. 2450; or has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under H.R. 2450.

Even before the current economic downturn, many employers already viewed the unpaid leave mandates imposed by the FMLA and other laws as burdensome.  The added costs and complexities of providing more paid time off under another federally imposed mandate couldn’t come at a worse time for many employers.  Given the number of co-sponsors, many commentators view the proposed mandates in H.R. 2450 as likely to pass the House unless businesses act quickly to educate members of Congress about their concerns.

 Curran Tomko Tarski LLP Labor & Employment Practice Group Chair Cynthia Marcotte Stamer and other members of Curran Tomko and Tarski LLP are experienced with advising and assisting employers and others to respond to proposed legislation and regulations and addressing other leave and other labor and employment, employee benefit, compensation, and internal controls concerns. If your organization needs assistance with assessing or responding to H.R. 2450 or assistance with leave and absence management or other labor and employment, compensation or benefit concerns or regulations, 

If you need help responding to these proposals or with other questions relating to compliance or risk management under other federal or state employment, employee benefits, compensation, or internal controls laws or regulations, please contact Curran Tomko Tarski LLP Labor & Employment Practice Group Chair, Cynthia Marcotte Stamer at (214) 270.2402 or via e-mail here.   Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, “Cindy” works with businesses, speaks and publishes extensively on these and other labor and employment, employee benefit, internal controls and compensation matters.

Other Information & Resources

We hope that this information is useful to you. For additional information about the experience, services, publications and involvements of Ms. Stamer specifically or to access some of her many publications, see here,   For more information and other members of the Curran Tomko Tarksi, LLP team, see the Curran Tomko Tarski Website.

 

You can register to receive future updates and information about upcoming programs, access other publications by Ms. Stamer and access other helpful resources here.  If you or someone else you know would like to receive updates about developments on these and other human resources and employee benefits concerns, please be sure that we have your current contact information – including your preferred e-mail- by creating or updating your profile at here.  If you would prefer not to receive these updates, please send a reply e-mail with “Remove” in the subject line to support@SolutionsLawyer.net. You also can register to participate in the distribution of these updates by registering to participate in the Solutions Law Press HR & Benefits Update Blog here.

 ©2009 Cynthia Marcotte Stamer. All rights reserved.


New GINA Health Plan Nondiscrimination Rules Effective For Plan Years Beginning On or After Today

May 21, 2009

New restrictions on the collection, use and disclosure of genetic information applicable to employer and union-sponsored group health plans enacted under Title I of the Genetic Information Nondiscrimination Act of 2008, Public Law No. 110-233 (GINA) for group health plan years that begin on or after today (May 21, 2009). For non-calendar year plans with plan years beginning between June 1 and December 1, the effective date occurs on first day of their 2009 plan year. For example, the effective date will be June 1, 2009 for a plan with a 2009 plan year that begins June 1.  For calendar year plans, the compliance deadline is January 1, 2010.   All employer-sponsored group health plans are required to comply with GINA.  There are no small group exceptions.

GINA In A Nutshell

GINA amended federal law to include specific prohibitions against certain discrimination based on genetic information by group health plans and health insurers (Title I) and to prohibit discrimination based on genetic information by employers of 15 or more employees (Title II).

Effective for all group health plan years beginning on or after May 21, 2009, GINA’s new restrictions on the collection and use of genetic information by group health plans added under Title I of GINA are accomplished through the expansion of a series of already existing group health plan nondiscrimination and privacy rules.  GINA’s group health plan provisions amend and expand the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Employee Retirement Income Security Act of 1974 (ERISA), Title VII of the Civil Rights Act, the Public Health Service Act, the Internal Revenue Code of 1986, and Title XVIII (Medicare) of the Social Security Act to implement sweeping new federal restrictions on the collection, use, and disclosure of information that falls within its broad definition of “genetic information” by  group health plans.  For individual health insurers, GINA’s restrictions take effect May 22, 2009.  The broad definition of the term “genetic information” in GINA will require group health plan sponsors and insurers to carefully review and update their group health plan documents, communications, policies and practices to comply with forthcoming implementing regulations to avoid liability under new GINA’s rules governing genetic information collection, use, protection and disclosure in a series of areas. 

Meanwhile, employers, unions and others face their own new prohibitions against genetic information based employment discrimination added by Title II of GINA, which take effect November 21, 2009. The Equal Employment Opportunity Commission (EEOC) published proposed regulations interpreting Title II of GINA in March, 2009.

Broad Definition of “Genetic Information”

The broad range of information included within GINA’s broad definition of “genetic information” means its new restrictions have a sweeping reach when applied to most group health plans.  GINA defines “genetic information to include with respect to any individual, information about:

  • Such individual’s genetic tests;
  • The genetic tests of family members of such individual; and
  • The manifestation of a disease or disorder in family members of such individual.

GINA also specifies that any reference to genetic information concerning an individual or family member includes genetic information of a fetus carried by a pregnant woman and an embryo legally held by an individual or family member utilizing an assisted reproductive technology.

Pending issuance of regulatory guidance, GINA’s inclusion of information about the “manifestation of a disease or disorder in family members” raises potential challenges for a broad range of group health plan health assessment and other wellness and disease management programs which provide financial incentives or condition eligibility on the provision of family health histories or other information that could be construed as genetic information. 

Group Health Plan Genetic Testing Collection and Nondiscrimination Rules

Under GINA’s nondiscrimination rules, group health plans and health insurers may not:

  • Request, require or purchase genetic information for underwriting purposes or in advance of an individual’s enrollment;
  • Adjust premiums or contribution amounts of the group based on genetic information;
  • Request or require an individual or family member to undergo a genetic test except in limited situations specifically allowed by GINA;
  • Impose a preexisting condition exclusion based solely on genetic information, in the absence of a diagnosis of a condition;
  • Discriminate against individuals in eligibility and continued eligibility for benefits based on genetic information; or
  • Discriminate against individuals in premium or contribution rates under the plan or coverage based on genetic information, although such a plan or issuer may adjust premium rates for an employer based on the manifestation of a disease or disorder of an individual enrolled in the plan.

GINA also prohibits insurers providing individual health insurance from establishing rules for eligibility, adjusting premiums or contribution amounts for an individual, imposing preexisting condition exclusions based on, requesting or requiring individuals or family members to undergo genetic testing.

Of particular concern to many plan sponsors and fiduciaries are the potential implications of these new rules on existing wellness and disease management features group health plans. Of particular concern is how regulators will treat the collection of family medical history and certain other information as part of health risk assessments used in connection with these programs. Although official guidance is still pending, many are concerned that regulators will construe certain commonly used practices of requiring covered persons to provide family medical histories or other genetic information through health risk assessments (HRAs) to qualify for certain financial incentives as a prohibited underwriting practice under GINA.  Even where health risk assessments are not used, however, most group health plan sponsors should anticipate that GINA will require specific amendments to their plan documents, communications and processes.

Taking timely action to comply with these nondiscrimination and collection prohibitions is important.  Under amendments to ERISA made by GINA, group health plan noncompliance can create significant liability for both the plan and its sponsor.  Participants or beneficiaries will be able to sue noncompliant group health plans for damages and equitable relief.  If the participant or beneficiary can show an alleged violation would result in irreparable harm to the individual’s health, the participant or beneficiary may not have to exhaust certain otherwise applicable Department of Labor administrative remedies before bringing suit.  In addition to these private remedies, GINA also authorizes the imposition of penalties against employers and other sponsors of group health plans that violate applicable requirements of GINA of up to $500,000. The minimum penalties generally are set at the greater of $100 per day or a minimum penalty amount ranging from $2,500 for de minimus violations corrected before the health plan received notice of noncompliance to $15,000 in cases in which the violations are more than de minimus.  GINA also includes language allowing the Secretary of Labor to reduce otherwise applicable penalties for violations that could not have been identified through the exercise of due diligence or when the plan corrects the violation quickly.

GINA Amendments To Health Plan Privacy Rules Under HIPAA

In addition to its nondiscrimination rules, GINA also amends HIPAA to make clear that “genetic information” as defined by HIPAA is protected health information protected by HIPAA’s Privacy & Security Standards of HIPAA. This means that it will require that all genetic information be treated as protected health information subject to the Privacy and Security Standards applicable to group health plans covered by HIPAA. Although the statutory provisions that accomplish these changes are deceptively simple, compliance with these requirements likely will require group health plans and their business associates to amend existing privacy policies, notices and practices to appropriately restrict disclosures for underwriting, operations and certain other uses to withstand scrutiny under the GINA privacy rule amendments. 

The HITECH Act amended and increased civil penalties for HIPAA privacy violations in many circumstances effective February 17, 2009.   

Regulatory Guidance Status

 As the the deadline for compliance for post May 20, 2009 plan years is rapidly approaching, however, many group health plans and their sponsors will need forward with their compliance arrangements in the absence of regulatory guidance interpreting these requirements. 

GINA’s fractured assignment of responsibility and authority to develop, implement and enforce regulatory guidance of its genetic information rules can create confusion for parties involved in compliance efforts. Because the group health plan requirements of Title I of GINA are refinements to the group health plan privacy and nondiscrimination rules previously enacted as part of HIPAA, GINA specifically assigned authority to construe and enforce its group health plan requirements to the agencies responsible for the interpretation and enforcement of those original rules:

  • The Department of Labor Employee Benefit Security Administration (EBSA);
  • The Internal Revenue Services (IRS), and
  • The Department of Health & Human Services. 

While these three agencies previously published a request for public comments about issues under Title I’s provisions, see http://edocket.access.gpo.gov/2008/pdf/E8-24194.pdf, none of these three agencies as of May 20, 2009 has published interim or other regulations interpreting the GINA provisions within their scope of responsibility since the formal comments period ended December 9, 2009.  Although the EBSA Spring 2009 regulatory agenda reflected it intended to publish interim regulations by today and agency officials continue to indicate they intend to publish guidance “soon,” no guidance had been published as of May 20, 2009.

Even if the agencies issue guidance by the end of May plan sponsors and administrators of group health plans with new plan years beginning in the next 60 to 90 days are expressing concern that they will have inadequate time to complete compliance arrangements.  As a result, in addition to guidance about GINA’s requirements generally, some are hopeful that the guidance with include transition rules or other relief to allow more time to comply with the regulations when finally issued.  Regulators as of May 20, 2009 had not given any indication that they plan or perceive that they are authorized to provide such relief.

Cynthia Marcotte Stamer and other members of Curran Tomko and Tarski LLP are experienced with advising and assisting employers with these and other labor and employment, employee benefit, compensation, and internal controls matters. If your organization needs assistance with assessing, managing or defending its wage and hour or other labor and employment, compensation or benefit practices, please contact Ms. Stamer at cstamer@cttlegal.com, (214) 270-2402; or your favorite Curran Tomko Tarski, LLP attorney.  For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi, LLP team, see the http://www.cttlegal.com.

Other Information & Resources

Cynthia Marcotte Stamer and other members of Curran Tomko and Tarski LLP are experienced with advising and assisting employers with these and other labor and employment, employee benefit, compensation, and internal controls matters. If your organization needs assistance with assessing, managing or defending its wage and hour or other labor and employment, compensation or benefit practices, please contact Ms. Stamer at e-mail, (214) 270-2402; or your favorite Curran Tomko Tarski, LLP attorney.  For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi, LLP team, see the Curran Tomko Tarski Website or Cynthia Marcotte Stamer, P.C. Website.

We hope that this information is useful to you. You can register to receive future updates and information about upcoming programs, access other publications by Ms. Stamer and access other helpful resources at CynthiaStamer.com For additional information about Ms. Stamer and her experience, see here or contact Ms. Stamer directly. If you or someone else you know would like to receive updates about developments on these and other human resources and employee benefits concerns, please be sure that we have your Currant contact information – including your preferred e-mail- by creating or updating your profile at CynthiaStamer.com.  If you would prefer not to receive these updates, please send a reply e-mail with “Remove” in the subject line to support@SolutionsLawyer.net. You also can register to participate in the distribution of these updates by registering to participate in the Solutions Law Press HR & Benefits Update Blog here.

 ©Cynthia Marcotte Stamer. All rights reserved.


EEOC GIVES EMPLOYERS LIMITED EMPLOYER GUIDANCE ABOUT ADA ISSUES IN SWINE FLU RESPONSE

May 13, 2009

Recent concerns over the H1N1 Swine Flu (swine flu) pandemic and warnings of a possible resurgence of the swine flu pandemic or some other pandemic in the future is forcing many employers to question when concerns that an employee suffers from a contagious disease can justify the employer making inquires about the health of an employee or the exclusion of the employee from the workplace. New guidance set forth in the “U.S. Equal Employment Opportunity Commission ADA-Compliant Employer Preparedness For the H1N1 Flu Virus” (Guidance) published by the U.S. Department of Labor Equal Employment Opportunity Commission (EEOC) on May 4, 2009 provides some insights for employers about the EEOC’s perspective on these questions. 

The Guidance details the EEOC’s answers to certain basic questions about when the EEOC views certain workplace preparation strategies for responding to the 2009 flu virus as compliant with the Americans with Disabilities Act (ADA).  Employers considering updates to their current pandemic and infectious disease response plans are cautioned that in addition to potential ADA exposures, practices for periods after November 21, 2009 also generally must be tailored to comply with new restrictions on employer’s collection of and discrimination based on genetic information based on the Genetic Information Nondiscrimination Act of 2008 (GINA).  Proposed regulations interpreting the employment provisions of GINA published by the EEOC in March 2009 do not specifically address the implications of GINA on employer planning or response to pandemic concerns.

ADA Concerns Apply To Employers  Planning For & Applying Swine Flu Response 

Title I of the Americans with Disabilities Act (ADA) protects applicants and employees from disability discrimination. Among other things, the ADA regulates when and how employers may require a medical examination or request disability-related information from applicants and employees, regardless of whether the individual has a disability.  The Guidance confirms that the EEOC views this requirement as affecting when and how employers may request health information from applicants and employees regarding H1N1 flu virus.  

Effective January 1, 2009, Congress amended the Americans with Disabilities Act pursuant to the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) to change the way that the ADA’s statutory definition of the term “disability” historically has been interpreted by certain courts.  The ADAAA amendments generally are intended and expected to make it easier for certain individuals to qualify as disabled under the ADA.  While the Guidance announces that the EEOC intends to revise its ADA regulations to reflect the broader group of persons protected as disabled under the ADAAA amendments, it also indicates that the EEOC does not perceive that the ADAAA changes the actions prohibited by the ADA as they relate to common pandemic planning and response activities.  Consequently, the Guidance states that the EEOC views the  guidance in “Disability-Related Inquiries & Medical Examinations of Employees Under the ADA” published by the EEOC in 2000 and its “Enforcement Guidance: Preemployment Disability-Related Questions & Medical Examinations” published in 1995 as setting forth the governing rules for medical testing, inquires and other pandemic response planning under the ADA.

Under the ADA, an employer’s ability to make disability-related inquiries or require medical examinations is analyzed in three stages: pre-offer, post-offer, and employment.

  • At the first stage (prior to an offer of employment), the ADA prohibits all disability-related inquiries and medical examinations, even if they are related to the job.
  • At the second stage (after an applicant is given a conditional job offer, but before s/he starts work), an employer may make disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category.
  • At the third stage (after 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 ADA requires employers to treat any medical information obtained from a disability-related inquiry or medical examination (including medical information from voluntary health or wellness programs), as well as any medical information voluntarily disclosed by an employee, as a confidential medical record. Employers may share such information only in limited circumstances with supervisors, managers, first aid and safety personnel, and government officials investigating compliance with the ADA.

Employers deviating from these requirements when administering their pandemic planning or response risk disability discrimination liability under the ADA unless they otherwise can defend their action under one of the exceptions to the ADA’s disability discrimination prohibitions.  When making post-offer inquiries or requiring post offer examinations or imposing other conditions for safety reasons, the Guidance and EEOC in unofficial discussions have emphasized the importance of the employer’s ability to demonstrate the job or safety relevance of the medical inquiry or examination based on credible scientific evidence such as the latest scientific evidence available from the World Health Organization (WHO) and the Centers for Disease Control and Prevention (CDC). 

Other than emphasizing the importance of acting appropriately in response to credible scientific evidence and pointing to preexisting guidance, the Guidance does not extensively address with specificity the circumstances under which the EEOC will view any particular action taken by an employer as defensible under the safety or other exceptions of the ADA.  Likewise, the Guidance does not discuss in any details the conditions, if any, under which the EEOC would view suffering, a history of suffering or association with or exposure to swine flu as qualifying an individual as disabled or perceived to be disabled for purposes of the ADA.  Consequently, employer must rely on other less specifically tailored guidance for purposes of assessing the defensibility of a proposed action on these grounds.

Planning for Absenteeism Under ADA

When planning for a possible pandemic, employers must be careful about when and how they ask employees about factors, including chronic medical conditions that may cause them to miss work in the event of a pandemic.  According to the Guidance, an employer may survey its workforce to gather personal information needed for pandemic preparation if the employer asks broad questions that are not limited to disability-related inquiries.  An inquiry would not be disability-related if it identified non-medical reasons for absence during a pandemic (e.g., mandatory school closures or curtailed public transportation) on an equal footing with medical reasons (e.g., chronic illnesses that weaken immunity). The Guidance includes a sample of what the EEOC views as ADA-compliant survey that could be given to all employees before a pandemic.

The Guidance also indicates that where appropriate safeguards are applied to comply with the ADA, it also may be appropriate for an employer under certain limited circumstances, to require entering employees to have a medical test post-offer to determine their exposure to the influenza virus.  According to the EEOC, the ADA permits an employer to require entering employees to undergo a job relevant medical examination after making a conditional offer of employment but before the individual starts work, if all entering employees in the same job category must undergo such an examination.  Thus, the Guidance reflects that the requirement by an employer as part of its pandemic influenza preparedness plan that all entering employees in the same job categories undergo the same post offer medical testing for the virus in accordance with recommendations by the WHO and the CDC in response to a new influenza virus may be ADA-compliant.

Infection Control in the Workplace Under the ADA

The Guidance also discusses the EEOC’s perceptions about the ADA implications of employer use of certain infection control practices in the workplace during a pandemic provided that the requirements are applied in a nondiscriminatory fashion consistent with the ADA.  For instance, the Guidance states that employers generally may apply with following infection control practices without implicating the ADA:

  • Require all employees to comply with certain infection control practices, such as regular hand washing, coughing and sneezing etiquette, and tissue usage and disposal without implicating the ADA;
  • May require employees to wear personal protective equipment provided that where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), employer provides these accommodations absent undue hardship;
  • Encourage or require employees to telework as an infection-control strategy, based on timely information from public health authorities about pandemic conditions or offer telework as a possible reasonable accommodation.  

In all cases, of course, the Guidance cautions that employers must not single out employees either to telework or to continue reporting to the workplace on a basis prohibited by the ADA or any of the other federal Equal Employment Opportunity laws.

Impending GINA Rules

 As signed into law, GINA amends Title VII of the Civil Rights Act, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Employee Retirement Income Security Act of 1974 (ERISA), the Public Health Service Act, the Internal Revenue Code of 1986, and Title XVIII (Medicare) of the Social Security Act to implement sweeping new federal restrictions on the collection, use, and disclosure of  “genetic information” by employers, employment agencies, labor organizations, joint labor-management committees, group health plans and insurers and their agents.  GINA’s group health plan restrictions are scheduled to take effect May 21, 2009.  The employment related genetic testing rules of GINA take affect November 21, 2009.  Employers and other covered entities will need to carefully review and timely update their pandemic and other infectious disease response practices as well as their group health plan, family leave, disability accommodation, and other existing policies in light of these new federal rules.

Although EEOC has not finalized its implementing regulations for GINA yet, employers should anticipate that GINA will impact their pandemic and other related practices.  The implications of GINA for employers and other entities covered by its provisions because of its broad definition of genetic information. 

Under GINA, “genetic information” is defined to mean with respect to any individual, information about:

  • Such individual’s genetic tests;
  • The genetic tests of family members of such individual; and
  • The manifestation of a disease or disorder in family members of such individual.

GINA also specifies that any reference to genetic information concerning an individual or family member includes genetic information of a fetus carried by a pregnant woman and an embryo legally held by an individual or family member utilizing an assisted reproductive technology.

Pending issuance of final regulatory guidance, Gina’s inclusion of information about the “manifestation of a disease or disorder in family members” raises potential challenges for a broad range of wellness and safety, leave, and other employment and benefit practices, particularly as apparently will reach a broader range of conditions than those currently protected under the disability discrimination prohibitions of the Americans With Disabilities Act (“ADA”).  

Depending on the contemplated inquiry or practice, certain inquiries or actions intended for use as part of an employer’s pandemic preparedness or response activities could fall within the scope of GINA’s protections. For this reason, employers also should consider the potential treatment of a proposed pandemic preparation or response activity intended to be applied after GINA takes effect in light of GINA.  Additionally, employers also should consider the risk that information collected under existing or previously applied pandemic or other infectious disease prevention and response activities might qualify for additional protection when GINA takes effect in November, 2009.

Other Resources

Businesses, health care providers, schools, government agencies and others concerned about preparing to cope with pandemic or other infectious disease challenges also may want to review the following resources authored by Curran Tomko Tarski LLP partner Cynthia Marcotte Stamer:

Cynthia Marcotte Stamer and other members of Curran Tomko and Tarski LLP are experienced with advising and assisting employers with these and other labor and employment, employee benefit, compensation, and internal controls matters. If your organization needs assistance with assessing, managing or defending its wage and hour or other labor and employment, compensation or benefit practices, please contact Ms. Stamer at cstamer@cttlegal.com, (214) 270-2402; or your favorite Curran Tomko Tarski, LLP attorney.  For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi, LLP team, see the www.cttlegal.com.


Mitigating Workplace Fallout of Pandemic Response

May 5, 2009

As the U.S. rushes to try to contain the spread of the swine influenza A (H1N1) virus infection (swine flu), businesses increasingly are facing employee leave requests and other employment and operational disruptions plans caused by school, day care or other closures and other business disruptions resulting from efforts to contain the disease while also working to take appropriate steps to prevent the spread of the disease within their own organizations.

Regardless of how deadly it ultimately proves to be, the pandemic proportion of the swine flu outbreak now ensures that most U.S. businesses will experience some disruption in operations as a result of the epidemic and efforts to contain it.

According to officials from the Centers for Disease Control and Prevention (CDC), as of 11:00 a.m. Eastern Time, 36 states had reported a total of 236 confirmed cases of swine flu and more cases are expected. That number includes the first U.S. swine flu fatality: a 22-month-old child from Mexico who died of the illness at a Houston, Texas hospital while visiting the United States last week. States currently hardest hit include New York (73 cases), Texas (41 cases), California (30 cases), Delaware (20 cases) and Arizona (17 cases). In the near future, however, CDC officials anticipate confirmed cases in all 50 states.

CDC officials and other experts continue to emphasize that the success of efforts to prevent the unnecessary spread of the disease depends largely on good health habits, limiting exposure to the virus and prompt diagnosis and treatment of afflicted persons. Employers can help reduce the risk that members of their workforce and their families will catch the virus by promoting good health habits and encouraging workers and their families to stay home and seek prompt treatment in the event of an illness. Simultaneously planning for and dealing with absences and other staffing challenges result from school, day care and other closings prevents a greater challenge for many employers, however.

Easy Preventive Safeguards

While the CDC says getting employees and their families to get a flu shot remains the best defense against a flu outbreak, it also says getting employees and family members to consistently practice good health habits like covering a cough and washing hands also is another important key to prevent the spread of germs and prevent the spread of respiratory illnesses like the flu. To help promote health habits within their workforce, many businesses may want to download and circulate to employees and families the free resources published by the CDC at http://www.cdc.gov/flu/protect/habits.htm. These and other resources make clear that Employers should encourage employees and their families to practice good health habits by telling employees and their families to take the following steps:

  • Avoid close contact with people who are sick. When you are sick, keep your distance from others to protect them from getting sick too.
  • Stay home when you are sick to help prevent others from catching your illness. Cover your mouth and nose.
  • Cover your mouth and nose with a tissue when coughing or sneezing. It may prevent those around you from getting sick.
  • Clean your hands to protect yourself from germs.
  • Avoid touching your eyes, nose or mouth.
  • Germs are often spread when a person touches something that is contaminated with germs and then touches his or her eyes, nose, or mouth.
  • Practice other good health habits. Get plenty of sleep, be physically active, manage your stress, drink plenty of fluids, and eat nutritious food.

Many businesses are promoting these and other conducts that help prevent the spread of disease by sharing educational materials such as the growing range of free materials provided by the CDC and others available at the government sponsored website, http://www.pandemicflu.gov. For instance, business can access and download free copies of the following publications at http://www.cdc.gov/flu/protect/habits.htm:

  • Cover Your Cough
  • Be a Germ Stopper: Healthy Habits Keep You Well
  • Flu Prevention Toolkit: Real People. Real Solutions
  • Stopping the Spread of Germs at Home, Work & School

Dealing With Lost Time & Productivity Challenges

Businesses also should begin preparing backup staffing and production strategies to prepare for disruptions likely to result if a significant outbreak occurs. Whether or not the disease afflicts any of its workers, businesses can anticipate the swine flu outbreak will impact their operations -either as a result of occurrences affecting their own or other businesses or from workflow disruptions resulting from safeguards that the business or other businesses implement to minimize swine flu risks for its workforce or its customers.

For many employers, however, planning for and dealing with requests for time off or other workplace disruptions resulting from pandemic containment efforts presents special challenges. While most employers have well established policies and procedures for providing medical leave to employees during periods of their own or a family member’s illness under the Family & Medical Leave Act (FMLA) or otherwise, many employers are experiencing difficulty in responding to leave requests of healthy employees necessitated by school or day care closings, suspected exposures, or other pandemic response disruptions.

Certainly, whether or not legally mandated, the CDC and other official advisories make clear that sick employees should not be in the workplace. Employers of course must provide medical leave as required by the FMLA or other similar state laws as well as any contractually agreed to leave. To better insulate their workforce against potential exposure to the virus, however, many employers also may wish consider temporarily modifying existing leave or other work policies with an eye to better defending their workforce against a major outbreak. In this respect, employers need to consider both how to respond to the present wave of the virus and to plan for the possible need to respond to another potentially stronger outbreak of the swine flu virus that the CDC and other experts caution likely may arise in the Fall or Winter.

As part of their efforts to insulate their workplaces against exposure to the virus, employers generally should discourage workers from coming to work if they or a family member are experiencing symptoms or have been exposed to the virus. For this reason, businesses generally evaluate workplace policies or practices that may pressure or encourage employees with swine flu or any other contagious disease to report to work. Employers should consider whether the potential risks make advisable adjustments to their current attendance, telecommuting, leave and paid time off and other policies.

In light of the current situation, many businesses may want to consider temporarily adjust their leave, telecommuting and other policies in light of the impending health risk. For instance, recognizing that the decision to close a school or child care facility in response to a known or suspected infection seeks to minimize the spread of the disease through exposure to other then undiagnosed cases, businesses generally should think twice about allowing employees to bring these potentially exposed children into the workplace. Instead, employers may wish to consider being more flexible in allowing employees to work from home or take leave to care for children whose schools or child care facilities are closed due to concerns about possible exposure to reduce the risk of creating unnecessary exposure in their workplace.

To help minimize financial pressures on workers to report to work when they may be ill or exposed to the virus, many employers also may want to consider providing or offering short-term disability insurance, expanding the availability of paid or unpaid leave or both.

Regardless of the specific choices a particular business makes, businesses need to take appropriate steps to document, implement, and communicate their decisions. If considering allowing or requiring employees to work from home, employers need to implement appropriate safeguards to monitor and manage employee performance, and to protect the employer’s ability to comply with applicable wage and hour, worker’s compensation, safety, privacy and other legal and operational requirements. They also should review and update family and medical leave act and other sick leave policies, group health plan medical coverage continuation rules and notices and other associated policies and plans for compliance with existing regulatory requirements, which have been subject to a range of statutory and regulatory amendments in recent years.

If considering allowing or requiring employees to work from home, for instance, employers need to implement appropriate safeguards to monitor and manage employee performance, and to protect the employer’s ability to comply with applicable wage and hour, worker’s compensation, safety, privacy and other legal and operational requirements. They also should review and update family and medical leave act and other sick leave policies, group health plan medical coverage continuation rules and notices and other associated policies and plans for compliance with existing regulatory requirements, which have been subject to a range of statutory and regulatory amendments in recent years.

In light of the growing responsibilities and exposures of business to medical privacy and disability liabilities associated with knowledge, collection, protection and use of information about the health and medical conditions of workers and their families, businesses also should review and update their procedures regarding the use, collection, disclosure, and protection of this and other sensitive information. Businesses, health care providers, schools, government agencies and others concerned about preparing to cope with pandemic or other infectious disease challenges also may want to review the publication “Planning for the Pandemic” authored by Curran Tomko Tarski LLP partner Cynthia Marcotte Stamer available at http://www.cynthiastamer.com/documents/speeches/20070530%20Pan%20Flu%20Workplace%20Privacy%20Issues%20Final%20Merged.pdf. Schools, health care organizations, restaurants and other businesses whose operations involve significant interaction with the public also may need to take special precautions. These and other businesses may want to consult the special resources posted at http://www.pandemicflu.gov/health/index.html.

Cynthia Marcotte Stamer and other members of Curran Tomko and Tarski LLP are experienced with advising and assisting employers with these and other labor and employment, employee benefit, compensation, and internal controls matters. Ms. Stamer in particular has worked extensively with health care providers, government officials, and businesses to plan for and deal with pandemic and other absence, disease management and disaster preparedness concerns. If your organization needs assistance with assessing, managing or defending its wage and hour or other labor and employment, compensation or benefit practices, please contact Ms. Stamer at cstamer@cttlegal.com, (214) 270-2402, or your favorite Curran Tomko Tarski, LLP attorney. For additional information about the experience and services of Ms. Stamer and other members of the Curran Tomko Tarksi, LLP team, see the http://www.cttlegal.com.


JPI & United Airlines Lawsuits Highlight Rising Discrimination Risks To US Businesses

March 22, 2009

A federal Fair Housing Act lawsuit filed by the U.S. Justice Department against a large Dallas-based construction and development company Tuesday, March 10, 2009 and the settlement of a United Airlines employment disability discrimination lawsuit announced by the Equal Employment Opportunity Commission (EEOC) on March 16, 2009 provide a warning to all U.S. businesses to strengthen their employment and other nondiscrimination policies and practices.   The actions highlight the growing exposures that businesses face to employment and other discrimination claims under Federal law. 

 

JPS Fair Housing Act & ADA Suit

The Justice Department’s suit against JPS coincides with a surge in filings of employment discrimination claims and on the heels of Congresses enactment of pro-plaintiff amendments to employment and other federal discrimination laws like those enacted under the ADA Amendments Act of 2008 signed into law last September. As the Obama Administration and the Democratic Majority in Congress continue to push for further liberalization of these laws, the JPI lawsuit provides tangible confirmation of the Obama Administration’s emphasis on enforcement of federal nondiscrimination laws. The Justice Department’s proclamation in its announcement of its filing of the suit against JPI that “Fighting illegal housing discrimination is a top priority” affirms this commitment under the Fair Housing Act. See “Justice Department Sues Large Multi-Family Housing Developer Alleging Disability-Based Housing Discrimination, U.S. Justice Department (March 10, 2009) at http://www.usdoj.gov/opa/pr/2009/March/09-crt-187.html. 

The Justice Department lawsuit charges JPI Construction L.P. (JPI) and six JPI-affiliated companies (JPI) with violating the Fair Housing Act and the public accommodations provisions of the Americans With Disabilities Act (ADA) by the failing to provide allegedly required accessible features at multi-family housing developments in Texas and other states.  The Fair Housing Act prohibits discrimination in housing on the basis of race, color, religion, sex, familial status, national origin and disability.

According to the complaint, the JPI defendants failed to design and construct accessible dwelling units and public and common use areas at Jefferson Center Apartments in Austin, Texas; Jefferson at Mission Gate Apartments in Plano, Texas; and additional multi-family housing complexes in other states. The complaint alleges certain complexes designed and constructed by the JPI defendants have inaccessible steps and curbs leading to units, steeply sloped routes leading to units, and no accessible routes to site amenities, including inaccessible trash facilities, barbeque grills and cookout tables. In addition, certain housing units have narrow doors and hallways; kitchens that lack accessible clear floor space at the sinks, ranges and refrigerators; bathrooms that lack accessible clear floor space at the toilets and tubs; and thermostats that are mounted too high to be accessible to a person using a wheelchair. The Justice Department complaint asks the court to order monetary damages to victims of the alleged discrimination, to issue a court order requiring the defendants to modify the complexes to bring them into compliance with federal law, to prohibit future discrimination by the JPI defendants, and to assess civil penalties.

 

United Airlines & Other Evidence of Rising Employment Discrimination Exposures 

The JPI lawsuit is one of many signs of the rising discrimination exposures businesses face under federal discrimination laws.  Employment discrimination risks also are soaring and the tightening economy promises to add further fuel to the fire.  Equal Employment Opportunity Commission (EEOC) statistics show workplace discrimination charge filings nationwide soared to an unprecedented level of 95,402 during Fiscal Year (FY) 2008, up 15 percent over the previous fiscal year.   All major categories of charge filings in the private sector including suits against private employers, as well as state and local governments increased. Charges based on age and retaliation saw the largest annual increases, while allegations based on race, sex and retaliation continued as the most frequently filed charges. The surge in charge filings may be due to multiple factors, including economic conditions, increased diversity and demographic shifts in the labor force, employees’ greater awareness of the law, EEOC’s focus on systemic litigation, and changes to EEOC’s intake practices.

The EEOC also continues to vigorously pursue disability and other discrimination charges.  On March 16, 2009, for example, the EEOC announced United Airlines has agreed to pay $850,000 and to change its light duty policies to settle a federal lawsuit brought by the EEOC that alleged that the company’s policy of denying overtime work to anyone on light duty violated the Americans With Disabilities Act (ADA).  The EEOC charged that the policy had greater repercussions for employees with disabilities, since these workers were more likely to be assigned to light United will pay the $850,000 to a class of employees with disabilities denied the opportunity to work overtime while placed on light or limited duty.  duty when medically cleared to work overtime.   The settlement also requires United to notify all current and former employees at the San Francisco Airport who were subject to the rescinded policy and invite them to submit claims to share in the $850,000.

 

Businesses Must Act To Manage Risks

In this increasingly risky climate, businesses should review and update their existing policies and practices prohibiting unlawful discrimination in employment and the provision of services based on race, color, religion, sex, familial status, national origin, disability, veteran status or other grounds prohibited by law and take other steps to prepare to demonstrate their compliance with federal nondiscrimination laws in operation as well as form. While adopting and communicating appropriate policies prohibiting unlawful discrimination in the provisions of goods, services, and employment is an important element of these compliance efforts, businesses also must take appropriate steps to ensure their operations match the words of their policies.  Businesses should not assume that the usual recital of their equal employment and services policies alone will suffice.  Businesses also need to have and administer well-documented practices and procedures governing the report, investigation and disposition of complaints.  These procedures should include clearly written and well communicated procedures to be used to report suspected violations.  Businesses also must establish and communicate clear procedures requiring employees both to comply with these rules and to report known or suspected violations. Businesses also should train workforce members on these policies and procedures and consequences for their violation. Businesses also should consider establishing compliance hotlines and using other compliance audit processes to monitor and address possible violations.  They should be prepared to demonstrate they take seriously and take appropriate action to investigate suspected violations, to rectify confirmed violations, and to appropriately discipline employees or others that participate in prohibited violations. 

Businesses needing advice or assistance to review or defend existing disability and other non-discrimination policies and practices should contact Cynthia Marcotte Stamer at 469.767.8872 or via e-mail to cstamer@solutionslawyer.net.  To register for future updates or to review other recent updates, helpful links and information about employment and other internal controls matters, or the author, see CynthiaStamer. com. 


United To Pay $850,000, Stop Disallowing Overtime To Employees On Light Duty To Settle Disability Discrimination Suit

March 22, 2009

Businesses applying policies that limit or restrict the availability of overtime for employees on light duty should review their practices in light of a settlement with United Airlines announced by the Equal Employment Opportunity Commission last week. 

On March 16, 2009, the EEOC announced United Airlines has agreed to pay $850,000 and make policy changes to settle a federal lawsuit brought by the EEOC that challenged that the company’s policy of denying overtime work to anyone on light duty violated the Americans With Disabilities Act (ADA).  United will pay the $850,000 to a class of employees with disabilities denied the opportunity to work overtime while placed on light or limited duty.  The EEOC charged that the policy had an impermissable disparate impact for employees with disabilities, since these workers were more likely to be assigned to light duty when medically cleared to work overtime.   The settlement also requires United to notify all current and former employees at the San Francisco Airport who were subject to the rescinded policy and invite them to submit claims to share in the $850,000.  Businesses with similar light duty policies or other workplace rules that disproportionately impact persons with disabilities or in other protected status hould review and update their policies in response to these and other potential challenges.  

 

If your  business that has questions about this development or needs assistance managing discrimination or other employment risks, contact Cynthia Marcotte Stamer at 469.767.8872 or cstamer@solutionslawyer.net.  To register for future updates or for other helpful information, see CynthiaStamer.com.