IS OBESITY A DISABILITY UNDER THE ADA?

Recently an employee filed suit in Federal Court against her former employer for being fired because she was obese and, she claimed, her employer perceived this as a disability.

In order for an employer to violate the Americans with Disabilities Act (ADA), the employer must perceive the employee as having an impairment that limits a major life activity. It has specifically been held that breathing, walking, eating, standing, and similar activities are “major life activities” for purposes of the ADA. Therefore, if the employer in this case believed that the employee’s weight would limit her from performing these or any other major life activities, and fired her because of this, then the employer violated the ADA.

In the case discussed above, Gina Powell v. Gentiva Health Services, Inc., the Federal District Court for Alabama stated that Ms. Powell having an “undesirable characteristic” (being obese) is the same as if she had a neon green Mohawk. Judge William Steele then continues to state both these choices might be viewed as unprofessional but that does not make her weight a “physical or mental impairment.” Although this was the outcome in the Powell case, First and Second District Courts would likely find differently.

If an employer believed that an employee’s weight will in any way impair her ability to perform any major life activity then pursuing adverse actions for this reason would be a violation of the ADA. This does not mean that all overweight employees are protected. Rather this simply means that they are held to the same standards as everyone else: they must be judged by their performance and behavior, nothing else.

There will likely be much upcoming discussion and debate about obesity as a disability. To protect your business from possible claims of disability discrimination it is important to make sure you have policies in place outlining expectations for employees and consequences of not meeting expectations, document all policy violations or performance issues, and assess every employee under the same standard.

If you have any questions regarding the ADA, please contact any of the attorneys at Royal LLP at (413) 586-2288

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BYOD: Employees Use of Personal Devices to Connect to an Employer’s Information

It seems virtually everyone has a smart phone, tablet, laptop, or other type of personal device. As these devices become more common, employees using these devices to connect to an employer’s computer network is also increasing. While there are benefits to allowing employees to use their personal devices to perform work-related activities, there are also risks. The best way to address these risks before they become problems is to have a comprehensive policy regarding employees using personal devices for work, often referred to as “Bring Your Own Device” policies.

The risks in allowing an employee to access private business information from his personal device are abundant. Among the many distasteful scenarios are a device being lost or stolen, viruses or malware, violation of a law leading to liability for the company, or business information falling into outsider hands.

There are many ways that a company’s private information might make its way in to a third party’s hands through a personal device. Many people do not have a password on their phones, let their friends or family use their phones, inadvertently transfer information through “unsecured” wireless networks, and fail to have anti-virus software. These things, along with the possibility of a phone being lost or stolen, will make your company’s information less private than you intend.

Along with the business considerations of protecting company secrets, there are also legal considerations. Personal devices are subject to state and federal rules of discovery of electronically-stored information. This means personal devices might need to be handed over to opponents in a lawsuit which may open up the company to a conflict as they are legally prevented from infringing on their employee’s privacy, yet may be legally required to produce the information on a personal device. Other legal liabilities may be opened up if your company stores certain protected data, such as social security numbers, driver’s licenses, and other personal identifying information. Furthermore, if an hourly employee is working from her personal device off the clock, this may be considered overtime and might implicate wage and hour laws.

A possibility even more concerning is an employer being held liable for an employee’s misdeeds on his personal device because that device is also used for work. For example, recently, Coca-Cola was ordered to pay $21 Million dollars after a Coca-Cola truck driver hit and killed a woman with a company truck while speaking on her cell phone. The National Safety Council released a report which notes that “the key phrase ‘acting within the scope of his or her employment’ can and has been defined broadly in cases of crashes involving cell phones.”

Although there are many benefits to allowing employees to use their personal devices for work, it is imperative that the risks are also addressed. The best way to address these risks and avoid liability for the company is to create a clear and comprehensive Personal Device Use Policy and to consult your employment counsel if you have any questions or issues.

If you have any questions regarding personal devices in the workplace, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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Employer Responsibilities under the Affordable Care Act’s Employer Shared Responsibility

The Affordable Care Act (ACA) has seen many delays and false-starts but it appears the final regulations have finally been decided, at least for the Employer Shared Responsibility portion. This past Monday the U.S. Treasury Department issued a Fact Sheet and Final Regulations Implementing Employer Shared Responsibility under the ACA for 2015 that states employers’ obligations and attempts to ease the transition.

Employer’s obligations vary depending on the number of full-time employees they have. Companies with 100 or more employees will need to offer health coverage to at least 70 percent of their employees in 2015 in order to avoid fines. This amount will increase to 95 percent in 2016. Companies with 50-100 employees will not need to comply with this requirement until 2016 when they will need to offer health coverage to at least 70 percent. These companies will also have one year before that percentage increases to 95 percent in 2017. Once the 95 percent requirement goes into effect, those companies are required to continuing offering health coverage for at least 95 percent of their employees continuing into the future. Fortunately, employers with less than 50 employees are exempt from this requirement altogether.

The U.S. Treasury Department also offers further guidance about which employees are considered full-time employees. Teachers and other educational employees should be treated as full-time even if the school is closed or operating on a limited basis during the summer. However, most volunteers, seasonal employees, and student-work employees will not be considered full time employees for the purpose of this provision. Just as in the December 2012 proposed regulations; these final rules allow employers to measure the number of full-time employees based on the amount of full-time employees companies employed in the previous year.

Finally, a few other rules that were to be applied by 2014 have been extended. For example, if a health plan doesn’t start on January 1 then a company may wait until the start of its plan year to begin offering health coverage as outlined above. Also, employers need not offer coverage to full-time employee’s dependents in 2015 as long as they are taking steps to arrange for such coverage to begin in 2016.

If you have any questions about your obligations under the Affordable Care Act, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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Will the Massachusetts Commission Against Discrimination hear from Michael Sam?

When former Missouri defensive lineman and SEC Defensive Player of the Year, Michael Sam “came out of the closet” recently, the majority of the talk has been about how the NFL is not ready for an openly gay player to enter the league. However, I think the NFL is better prepared than the general public will give them credit for, well at least from an employment law perspective.

The NFL is a business and a large employer; and so too are the 32 teams that make up the league. Accordingly, each is subject to Federal, State, and Local anti-discrimination laws; and in regards to the NFL, there is also a collective bargaining agreement in place that provides anti-discrimination protections to the players as well. Because Mr. Sam would be considered an employee of the league, he is protected by these laws. The NFL teams, as employers should already have anti-discrimination policies in place and have properly implemented them. Accordingly, a team should be prepared to handle possible discriminatory allegations that may occur once Sam is drafted by a team. That is, if he gets drafted or even gets a “look” at the combine at all.

Now that Sam is out of the closet all the NFL teams are privy to personal information that they may not otherwise legally be able to collect during an interview (though rumor is scouts have been asking about sexual orientation during interviews for some time). Of course the main question is why does his sexual orientation even matter during a football interview? Who cares?

It matters because in many states, like Massachusetts, sexual orientation is a protected class. Which means an individual cannot be discriminated against on the basis of his sexual orientation. These protections are also afforded the employee, during the hiring process. The NFL and the teams within the NFL enterprise are all FOR-PROFIT businesses, and each of the teams cares about being sued by a prospective player. Accordingly, Sam could get shut-out at the NFL combine because the teams’ attorneys may be whispering in the ear of the owners “potential lawsuit.” It sounds offensive, but they would be correct. Because Sam went to the media with his declaration; the teams have all been put on notice about his sexual orientation. See Connecting Point interview regarding potential dangers of Social Media in the Workplace. He may not get a look at the combine, because if any of the teams interview Sam and choose not to select him for their team, they could be facing a sexual orientation discrimination lawsuit. Even if the team’s home city or state does not recognize sexual orientation as a protected class, once the team interviews Sam, he is protected by the NFL collective bargaining agreement.

However, the team can protect its interest in not facing a lawsuit and still interview Sam, by having or implementing clear anti-discriminatory hiring policies and by properly evaluating Sam without regard to his sexual orientation, as it does non-gay potential players. Documenting the process along the way is imperative to assure that the team would have the evidentiary means to support its non-discriminatory hiring practices, if necessary.

Ultimately, because of the publicity, for a team thinking about interviewing Sam, it will probably be a cost-benefit analysis. Does the potential value Sam brings to the team outweigh the cost of an impending law suit if the team chooses not to draft him; or if he gets cut shortly thereafter? Is a second-round draft pick worth taking the risk of a lawsuit? Some say no, however, what would Bill Belichick say? Tom Brady was drafted in the sixth round.

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Reasonable Accommodations Under the Americans with Disabilities Act

Accommodating a disabled employee under the Americans with Disabilities Act (ADA) may seem to be a daunting task. While you want to enable an employee to perform their job, you also want to avoid excessive spending or inconvenience for the company and other employees. To successfully navigate the ADA, employers should make sure they are able to recognize a request for an accommodation, have a procedure in place for considering an accommodation, and be able to choose a reasonable accommodation.

Requests for Accommodations
Requests for disability accommodations rarely use the magic words “I need an accommodation.” Therefore, to comply with the ADA employers and supervisors need to be able to recognize potential needs of employees and have procedures in place to address any requests for accommodations. Under the ADA, an accommodation request is made when an employer is on notice of a possible need for an accommodation. Unfortunately, this is such a broad category that it can be easy to miss an accommodation request. An accommodation request could come in the form of an employee telling you she is diabetic and needs to check her insulin levels every few hours, a learning-disabled employee telling you he has problems processing written speech, or you noticing an employee is having difficulty fitting her wheelchair under her desk. Employers and supervisors should constantly be able to recognize the request for an accommodation so that the situation may be responded to appropriately. Supervisor training is essential to avoid missing a request for accommodation.

Responses to Requests
Soon after the employer knows there may be a need for an accommodation, she should have an interactive conversation with that employee and document it. There are many different accommodations that may be reasonable so it is important to talk with the employee to determine exactly what the issue is and how it might be addressed. This conversation will also allow the employer to recognize all accommodations that would address the issue and determine which is most reasonable and cost effective. As long as the employee is accommodated successfully the employer has wide discretion in which accommodation it chooses. The accommodation need not be the most convenient for the employee, or the one the employee wants most, as long as it manages any issues caused by the disability.

Even if a reasonable accommodation cannot be made it is very important that an employer make the effort to discuss possible accommodations and document the efforts and conversations regarding accommodations. An individual, documented assessment of the relevant circumstances will likely lead to a resolution of the situation or proof that the employer made good-faith efforts to accommodate a disabled individual.

Reasonable Accommodations
An accommodation can be reasonable and necessary if it enables a potential employee to apply for a job based on their qualifications, allows the disabled employee to enjoy workplace “benefits and privileges” in a manner similar to a non-disabled, similarly situated employee, or assists a disabled employee in performing their major job functions.
A reasonable accommodation could mean an interpreter for an interview or giving an oral test when normally the test would be written to allow an applicant a chance to demonstrate their qualifications. A reserved parking space or wheelchair ramp for someone with issues or pain walking, daylight shifts for a sight impaired employee to aid in her travel to and from work, or an alternative to a urine drug test for an employee with kidney failure are all accommodations that would allow the employee to enjoy the workplace benefits and privileges.

Take-away
The easiest way to violate the ADA is to ignore or not recognize a request for an accommodation. To avoid this make sure your supervisors are properly trained in recognition and management of accommodation requests. Once a request is made, be interactive with the employee and document the process. If a reasonable accommodation is possible then pick the best one and implement it. Very rarely will making an accommodation for an employee rise to the level of an undue burden, but if you believe you are in that situation speak with employment counsel to determine your options.

If you have any questions regarding reasonable accommodations under the ADA, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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CHECK PLEASE! Credit Checks for Employees

Your ability to perform credit checks on employees is coming under fire. Ten states, including Connecticut and Vermont, already have limits on an employers’ ability to use credit information in employment decisions. Soon the Equal Employment Opportunity Commission may create a guidance document to further restrict the use of credit information in the employment context. Additionally, there are many state and federal bills proposed to abolish the practice of using credit information for background checks altogether, including one in Massachusetts.

A bill has been introduced to the Massachusetts Senate that would prohibit employers from using credit reports for employment purposes. The Equal Employment for All Act (S. 1837) would amend the Fair Credit Reporting Act and make any adverse employment decisions based on a credit reports unlawful. Should this bill pass, employers’ abilities to conduct background checks would be further constricted. Even with consent and authorization from employees and potential employees, credit history for employment purposes would be completely off-limits, with virtually no exceptions.

If you have any questions regarding conducting credit or background checks on employees, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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Shot Through the Heart- Valentine’s Day and the Risk of Sexual Harassment

When you were in elementary school you may have exchanged Valentines with each of your classmates. Then it was perfectly acceptable to give everyone a little box of candy and a card that said “Be Mine!” But the workplace is a completely different playground.

Valentine’s Day is the perfect storm for misunderstandings, which may lead to an increased risk of sexual harassment claims. What some employees find to be fun and flirty comments, cards, e-mails, text messages, or jokes, other employees may consider offensive and inappropriate. As co-workers increasingly communicate via social media sites, there are even more opportunities for problems. As Valentine’s Day is associated with love and romance, an innocent gift or card can easily be misinterpreted. Even the most innocent of Valentine’s cards may suggest romantic feelings. In the workplace, a card that says “Be Mine!” may be interpreted as a romantic gesture or sexual advance despite the intention. This issue is compounded by the fact that employees may choose more “adult” themes for their Valentine’s Day cards.

With Valentine’s Day fast approaching, employers would be wise to shield themselves against Cupid’s arrow to avoid sexual harassment claims.The best way to avoid claims of sexual harassment is taking preventative steps. An employer’s best preventive measures against sexual harassment claims include a comprehensive sexual harassment policy, which has a procedure for reporting harassment, sexual harassment training for all employees, and regular supervisor trainings to recognize and react to possible cases of sexual harassment.

If you have any questions regarding sexual harassment in the workplace, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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Fight the Flu: Implementing Mandatory Flu Vaccines

Some businesses host “Flu Vaccination Clinics,” but can you make getting a flu vaccine mandatory?  Some employers can require that their employees get a flu vaccination as long as they have an objective business reason to require the vaccine.

If an employee objects to this requirement, the employer has an obligation to discuss this objection with that employee to determine why they object and what alternative measures may be reasonable in its place. In some circumstances, you may have an employee who objects to the vaccine because of their religious beliefs or because of their medical condition.  For example, if you have an immune deficient employee who does not want the flu vaccine because it will make him or her sick, a reasonable accommodation may be required and you must engage in interactive dialogue with that employee.  For instance, this employee may need to wear a mask instead of taking the vaccine.

Similarly, this accommodation may be appropriate where you have an employee whose faith prohibits the use of vaccines.  It is important to note that if faced with a discrimination claim based on religion, the court is not going to consider whether the belief is a commonly recognized religion or whether the employee’s belief is sincere when determining if an employer adequately considered a reasonable accommodation.  For example, a federal court allowed a religious discrimination claim to continue where an employee refused to be vaccinated claiming her religious belief was veganism.

If your business decides to create a policy mandating vaccinations make sure you are able to state why these vaccinations are essential, that you have an avenue for employees to object to the mandate, and that a process for considering the employee’s objections and how you may accommodate the employee is available.  Employers faced with objections to a mandatory flu vaccination policy would be wise to consult with employment counsel before taking action.

If you have any questions regarding reasonable accommodations or discrimination, please contact any of the attorney’s at Royal LLP at (413) 586-2288.

 

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Bullying in the Workplace: What it Means for Employers

From the playground to the workplace, not everyone gets along.

A growing number of states, including Massachusetts and Connecticut, have proposed workplace bullying legislation.  Problematically, this legislation could expose employers to frivolous lawsuits because any disgruntled employee would have the opportunity to sue his or her employer for harassment.  Unlike workplace bullying legislation, current anti-discrimination and anti-harassment laws require that harassment be tied to a protected category, such as race, sex, or disability.  Title VII and the state counterparts were designed to give equal opportunities to classes of individuals who historically did not have these opportunities.  Workplace bullying laws, on the other hand, are designed to prevent an abusive work environment generally.  Problematically, the reach of this legislation could be expansive and proposed legislation provides little guidance as to what exactly constitutes an abusive workplace.

It may only be a matter of time before employers will be faced with obligations under workplace anti-bullying laws.  In the meantime, employers may want to consider instituting anti-bullying policies that foster a culture of mutual respect.

If you have any questions regarding harassment in the workplace, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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Connecticut to Increase Minimum Wage in 2014

Effective January 1, 2014, Connecticut’s hourly minimum wage will increase.  The new law will raise the state’s minimum wage over two years.  On January 1, 2014, the minimum wage will increase from $8.25 per hour to $8.70 per hour.  A second increase, on January 1, 2015, will raise the minimum wage to $9.00 per hour.  This law will also impact tip credit percentages for hotel and restaurant employees and bartenders.

If you have any questions regarding wage and hour law, please contact any of the attorneys at Royal LLP at (413) 586-2288.

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