Last week the National Labor Relations Board (“NLRB” or the “Board”) continued to correct its course to a more even balance between union and employer interests. It overturned four controversial decisions that had created a great deal of consternation and uncertainty in the employer community. Click here to read the full client alert.


On March 20, 2017, the United States District Court for the Central District of California granted Defendant Domino’s Pizza LLC’s (“Domino’s”) motion to dismiss an Americans with Disabilities Act (“ADA”) claim related to the accessibility of Domino’s website and mobile application. See Robles v. Domino’s Pizza, LLC, Case 2:16-cv-06599. The District Court ruled that it would violate Domino’s due process rights to allow the claim to proceed, since the Department of Justice (“DOJ”) had failed to promulgate any accessibility regulations governing websites or mobile applications. Click here to read the full client alert.

Workplace AccommodationOn Monday, December 12, the Equal Employment Opportunity Commission (EEOC) issued a resource document concerning workplace rights for individuals with mental health conditions under the Americans with Disabilities Act (ADA), entitled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights.” This resource document is part of a series of resource documents issued by the EEOC explaining workplace rights for individuals with disabilities. Earlier in 2016 the EEOC released resource documents addressing the rights of employees with HIV infection and employees who are pregnant.

Through the document, the EEOC aims to educate employers, job applicants, and employees that mental health conditions are no different from physical health conditions under the ADA. Moreover, EEOC charge data shows that claims of workplace discrimination based on mental health conditions are on the rise, with preliminary 2016 data estimating 5,000 mental health discrimination charges within the fiscal year.

Individuals suffering from depression, PTSD, and other mental health conditions are protected from workplace discrimination based on their mental health condition. Thus, employers must be prudent not to rely on stereotypes or jump to conclusions regarding mental health. However, employers are not required to hire or keep employees in jobs they cannot perform or employ individuals who pose a “direct threat” to safety.

The document explains that generally employees with a mental health condition are able to keep their condition private in the workplace. Employers are permitted to ask questions about mental health in only four situations:

  • When an employee with a mental health condition asks for a reasonable accommodation.
  • After the employer has made a job offer, but before employment begins, if everyone entering the same job category is asked the same questions, and the questions are job-related in some way.
  • When the employer is engaging in affirmative action for people with disabilities, in which case the employee may choose whether to respond.
  • On the job, when there is objective evidence that the employee may be unable to perform the job or that an employee may pose a safety risk because of his or her condition.

Moreover, employees with mental health conditions have a right to reasonable accommodations at work. The document provides some examples of acceptable reasonable accommodations for employees with mental health conditions:

  • Altered break and work schedules to work around therapy appointments.
  • Quiet office space or devices that create a less stressful work environment.
  • Changes in supervisory methods, such as written instructions instead of oral.
  • Specific shift assignments.
  • Permission to work from home.

Employers are not required to provide a reasonable accommodation unless an employee requests one. However, if a reasonable accommodation will enable the employee to fulfill his or her job responsibilities, employers are advised by the EEOC to provide one, unless the accommodation involves significant difficulty or expense. Employers may also choose between reasonable accommodations if more than one accommodation is feasible.

Given the complex issues with mental health issues and accommodations for individuals suffering with them, employers should act prudently and engage in the interactive process with affected employees. Experienced employment lawyers can be of great help in this effort.

The United States Court of Appeals for the Seventh Circuit recently affirmed a district court’s summary judgment dismissal on behalf of our client, USF Holland.  The disability discrimination case involved a truck driver who sought to switch from a city driver to a line-haul driver position based on his claim that he could not perform the dock work duties of the city driver position. A copy of the Court’s opinion is attached.

There are good nuggets in this case for employers defending claims of disability discrimination, especially trucking industry or similar physically-demanding positions.  Plus, even though the Court applied the facts to pre-ADAAA amendments, the majority of the opinion would stand even in an ADAAA case.  In fact, as the Court notes, the ADAAA now makes it eminently clear that an individual that is not actually disabled, but only regarded as disabled, is not entitled to accommodations from his employer and cannot pursue claims related to accommodations. 

 Significant points from this decision:

  • Having work restrictions alone does not render an individual disabled under the ADA. 
  • An employer does not “regard” an individual as disabled simply because it views the employee as limited in his ability to perform his own job at the Company.  The Court held:  “Powers has not presented any evidence that Holland viewed him as limited in his ability to work for an employer other than Holland. . . .” 
  • The existence of a 100% healed policy does not serve as evidence that the employer regarded the claimant as disabled.

 My colleague, Jennifer Whitney, had the opportunity to argue this case in front of the United States Court of Appeals for the Seventh Circuit and the esteemed bench of the honorable Richard D. Cudahy, Richard A. Posner and Daniel A. Manion.  The bench was active, peppering both lawyers with detailed questions.  The Court issued its opinion nine months after the oral argument.  Judson Stelter also contributed to the appellate brief, and Lisa Jones assisted on the motion for summary judgment.

For me, the case also serves as a reminder of the significant time expended in the judicial process.  This case did not languish on the docket, and both the District Court and Court of Appeals moved the case promptly, in my experience.  Even so, this has case spent about four years and six months in litigation. 

The newly released regulations interpreting the Americans with Disabilities Act Amendments Act of 2008 take effect on May 24, 2011.  The regulations confirm what most employers already know about the amendments:  It is now much easier for a claimant to establish a prima facie case of disability discrimination. 

Given the expanded definitions of “disability”, “impairment”, “regarded as”, and “major life activity,” it is not an exaggeration to suggest that most individuals could potentially qualify as covered under the ADA.  For cautious employers, this means it will be safe to assume that an employee may be covered under the ADA when determining whether an accommodation may be required.

Click here for our firm’s client alert, which briefly summarizes the new regulations.

The federal government has encouraged employers to implement incentive-based wellness programs as one way to cut into ever-growing health care costs.  These programs provide financial incentives for employees who participate and, in some cases, achieve certain healthy criteria, such as maintaining a healthy BMI and cholesterol level.

Employers who have taken this route have found themselves mired in a murky confluence of labor, employment, health care and privacy laws.  The plans must comply with HIPAA, the PPACA, the ADA, the ADEA, Title VII, GINA and possibly the NLRA if the workforce is unionized.  Depending on how they are interpreted, the requirements to comply are in some cases conflicting and in other places unclear.

Enter the United States District Court for the Southern District of Florida.  In a much anticipated decision for those following wellness programs, Judge K. Michael Moore granted summary judgment in favor of Broward County’s wellness program.  A copy of the opinion in Seff v. Broward County is attached.  Seff filed a class action suit under the ADA challenging the legality of the wellness program, contending that the program violated the ADA’s medical inquiry requirements because the program was not voluntary.  Seff argued that the program was not voluntary because non-participants incurred a $20 charge, which he characterized as a penalty.

The Court, although avoiding interpreting the ADA head on, held that the wellness program fell under the ADA’s insurance safe harbor provision, 42 U.S.C. 12201(c). 

Employers who wish to take advantage of this good development should note:

1.  The wellness program must be a term of a bona fide benefit plan;

2.  Aggregate date obtained from the plan should used to analyze and develop future benefit plans; and

3.  The plan must be consistent with applicable state law.

Of course, employers should be mindful that this decision is likely to be appealed and that different courts may reach different conclusions.   Nonethelss, it is a positive step for the legality of incentive-based wellness programs.