Last month, I had the pleasure of speaking to the Federal Bar Association about hot topics under the Americans with Disabilities Act with my blogging buddy Bill Goren, proprietor of the Understanding the ADA blog. If you haven’t visited Bill’s blog, you should — he covers all aspects of the ADA, including Titles II and III, as well as the employment provisions (Title I).
Here are four ADA (or ADA-related) areas that employers need to watch in the coming year:
No. 1. FMLA/ADA coordination. As my law partner Bob Ortbals reported last week, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit recently ruled that an extended medical leave of absence is not a “reasonable” accommodation within the meaning of the Americans with Disabilities Act. The court’s position conflicts with the position on this issue taken by the U.S. Equal Employment Opportunity Commission. According to the court, a reasonable accommodation has to allow the employee to work. Because an employee can’t work while on an extended medical leave, leaves are governed by the Family and Medical Leave Act (as well as employer policies) rather than the ADA. The court did not rule out the possibility of short or intermittent time off as an ADA accommodation. Will other courts follow the Seventh Circuit? Will they follow the EEOC? This is drama!
No. 2. Medical marijuana accommodation. Not too long ago, the Massachusetts Supreme Judicial Court said that employers may be required under the state disability rights statute to make reasonable accommodations for the use of medical marijuana. Ellen Kearns, head of our Boston Office, wrote about Barbuto v. Advantage Sales and Marketing at the time, and I wrote a more general follow-up post with some points that employers might want to think about. The court specifically said that “reasonable accommodation” could include treating a positive medical marijuana test result as a “negative” and allowing the applicant or employee to work. Right now, this is not an issue with the ADA because marijuana is still an illegal drug under federal law, and I would not expect that to change under Attorney General Jeff Sessions. But employers in jurisdictions that both (1) legalize medical marijuana and (2) have a state disability rights law should review their practices carefully.
NOTE: If your employees are covered by a federal law that prohibits all marijuana use, such as U.S. Department of Transportation regulations, then you can continue to comply with federal law even if you’re in a medical marijuana/disability rights state. But watch out, because federal law generally does not require you to fire an employee who tests positive — it usually requires only that you remove the employee from the position that is covered. For example, under DOT regulations, you are not allowed to let a CDL driver continue to drive after he or she tests positive. But you don’t have to fire the driver. You are required only to remove him or her from a driving position. Which would allow you to reassign the employee to a non-driving job — such as the loading dock — as a reasonable accommodation.
No. 3. Pregnancy accommodation. Since the Supreme Court’s 2015 decision in Young v. UPS, employers must make reasonable accommodations for pregnancy and pregnancy-related conditions. Employers with employees who need pregnancy accommodations should use what they’ve learned from making reasonable accommodations under the ADA: specifically, be open to making accommodations, engage in the interactive process with the employee, feel free to choose the least expensive/least disruptive accommodation that is still effective (allows the employee to perform the essential functions of the job), and generally treat the pregnant employee who needs accommodation the same way you would treat an employee with a disability or work-related injury.
NOTE: As the courts have interpreted Title VII’s pregnancy protections, “pregnancy” encompasses much more than the nine months of gestation. It includes pre-pregnancy (trying to get pregnant, trying not to get pregnant, contraceptive use, fertility treatments), gestation (including miscarriages and elective abortions), and postpartum and lactation.
No. 4. Wellness programs. This summer, a federal judge in the District of Columbia struck down the EEOC’s wellness regulations as they pertained to the ADA and to the Genetic Information Nondiscrimination Act. In a nutshell, the regulations allowed employers to use financial and other incentives (within limits) to get employees to participate in employer wellness programs. Rather than vacate the regulations, the judge remanded them to the EEOC to fix. The EEOC now says that it will issue revised regulations sometime in 2018.
The EEOC was trying to harmonize the ADA and GINA provisions — which sharply restrict the amount of medical information that an employer can obtain from employees but provide exceptions for information obtained through “voluntary” wellness programs — with the Health Insurance Portability and Accountability Act and the Affordable Care Act, which are generally pro-wellness and pro-incentives. The AARP sued the EEOC, contending that the EEOC tried too hard to “accommodate” HIPAA and the ACA at the expense of the protections for employees under the ADA and the GINA. It will be interesting to see how the EEOC tries to work around this problem.
Those are my four. Are there any that you think I should add to the list?