Last month, the 6th Circuit Court of Appeals issued a decision in Mosby-Meachem v. Memphis Light, Gas & Water Division, which expanded on the court’s view of when remote work qualifies as a reasonable accommodation under the Americans with Disabilities Act for an employee who is unable to come into work. Back in 2015, in Equal Employment Opportunity Commission vs. Ford Motor Company, the same court had ruled that telecommuting was not a reasonable ADA accommodation unless the employee could demonstrate that regular on-site attendance was not an essential part of their job.
Workforce employment law columnist Jon Hyman, a critic of the Sixth Circuit’s decision in EEOC v. Ford, highlighted the Mosby-Meachem case last month as a welcome sign that case law may be shifting in favor of remote work as a reasonable accommodation:
The plaintiff, Andrea Mosby-Meachem, worked as an in-house labor and employment attorney for Memphis Light, Gas & Water Division. Her boss, MLG&W’s general counsel, Cheryl Patterson, had a written policy requiring strict attendance at work for all who worked in her office. Yet despite that policy, employees often worked from home, including Mosby-Meachem. She had telecommuted for two weeks, without incident, while recovering from neck surgery.
In May 2016, the US Equal Employment Opportunity Commission adopted new rules that allowed organizations to incent employees to share their health information as part of a workplace wellness program, determining that wellness programs would still be considered voluntary as long as these incentives or discounts did not exceed 30 percent of the cost of an employee’s individual health coverage. This Tuesday, a court in Washington, DC, determined that these rules were arbitrary and ordered the EEOC to rewrite them, SHRM’s Allen Smith explains:
Rather than vacate the rules, the court sent them back to the agency for redrafting in an attempt to avoid business disruptions. But the decision still creates “confusion and uncertainty” about employer wellness programs, said Ilyse Schuman, an attorney with Littler in Washington, D.C., and co-chair of the firm’s government affairs branch, the Workplace Policy Institute. HR professionals should know that the decision threatens the viability of wellness programs, and an employee may push back on an employer that uses financial incentives or penalties to encourage wellness program participation, said Ann Caresani, an attorney with Tucker Ellis in Cleveland and Columbus, Ohio.
“The EEOC’s regulations were helpful to employers because they finally resolved the long-pending question of what EEOC would consider to be a permissible incentive under ADA [Americans with Disabilities Act] and GINA [Genetic Information Nondiscrimination Act],” said Frank Morris Jr., an attorney with Epstein Becker Green in Washington, D.C. “This permitted employers who wanted to use incentives to design [them] with reasonable certainty that they would be lawful under the two statutes.”
The court ruled that the EEOC had failed to provide a well-reasoned justification for setting the limit for incentives at 30 percent of the cost of a health insurance plan, a figure it had simply borrowed from Health Insurance Portability and Accountability Act (HIPAA) regulations. Furthermore, the rules address information protected by the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act, but did not consider the potential for employers to stack incentives for disclosing their own ADA-protected information and their spouses’ GINA-protected information.
The Americans with Disabilities Act prevents employers from requiring workers to undergo medical testing or hand over personal health information as a condition of employment, so when the Wisconsin-based plastics manufacturer Flambeau took away the health insurance coverage of an employee who refused to take a health assessment and biometric screening as part of the company’s employee wellness program, the Equal Employment Opportunity Commission sued the company for violating this provision of the ADA.
At the turn of the year, US District Judge Barbara Crabb ruled against the EEOC, finding that Flambeau was within its rights to condition employees’ participation in group health insurance coverage on their full participation in the wellness program. Jon E. Anderson explains the court’s reasoning in the National Law Review:
The ADA … permits an employer to make disability-related inquiries or to request a medical examination as part of a voluntary wellness program. The ADA also contains what is called a “safe harbor” that would permit medical and disability-related inquiries in certain cases if done as part of a bona fide benefit plan. …
Judge Crabb determined that employees were not at risk for losing their jobs if they did not sign up for the insurance or participate in the program. As such, Flambeau did not violate the ADA. Flambeau required all employees who wanted the insurance to fill out a health history questionnaire and allow their blood to be drawn and their blood pressure to be measured. Judge Crabb recognized that the EEOC might be correct in arguing that the ADA safe harbor provision may not be appropriate for examinations that are part of a stand-alone wellness program, but the program involved in Flambeau was tied to the administration of its insurance program.
This ruling, in combination with the similarly employer-friendly ruling in Seff v. Broward County, Florida in 2011, points toward employers having a freer hand in tying wellness programs to their health insurance plans, according to Business Insurance writer Shelby Livingston: