EEOC Issues Proposed Rules for ADA Compliance in Wellness Programs
On April 16, the U.S. Equal Employment Opportunity Commission issued a Notice of Proposed Rulemaking dealing with how the Americans with Disabilities Act applied to employer wellness programs that are part of a group health plan. The proposed EEOC rule makes clear that wellness programs are permitted under the ADA, but that they may not be used to discriminate based on disability. The rule explains that, under the ADA, companies may offer incentives of up to 30 percent of the total cost of employee-only coverage in connection with wellness programs. These programs can include medical examinations or questions about employee health, such as questions on a health risk assessment.
NLRB Election Rules Are in Place; Petition for Elections Surge
The new National Labor Relations Board representation election rules took effect April 14 and are now in full force for all election petitions filed with the Board. One of the lawsuits challenging these rules has been dismissed, and most observers expect the other suit seeking to overturn the rules to also be dismissed. The new rules significantly reduce the amount of time for employers to respond to union organizing campaigns, increasing the importance of proactive measures to maintain positive workplaces. According to the Board, the number of petitions for an election submitted to the agency increased 32 percent in the first month after the election.
NLRB Guidance on Deferral to Arbitration
The NLRB’s general counsel issued new guidance on the circumstances in which the Board will defer unfair labor practice charge proceedings to arbitration, based on the Board’s new standards issued in December 2014. In short, the Board will defer to an arbitration decision if the party arguing for deferral proves “(1) the arbitrator was explicitly authorized to decide the unfair labor practice issue; (2) the arbitrator was presented with and considered the statutory issue, or was prevented from doing so by the party opposing deferral; and (3) NLRB law reasonably permits the award.”
Vehicle Crashes the Leading Cause of Worker Deaths
The number one cause of worker deaths is motor vehicle crashes. The National Safety Council estimates that cell phone usage is involved in approximately one-fourth of all crashes. These facts have not gone unnoticed by the U.S. Occupational Safety and Health Administration. OSHA has published a Distracted Driving Brochure for employers, which notes that: “When OSHA receives a credible complaint that an employer requires texting while driving, or organizes work so that texting is a practical necessity, we will investigate and will issue citations and penalties where necessary to end this practice.” To avoid potential OSHA citations, employers should consider having a cellular telephone policy as part of their safety programs. The OSHA brochure can be found here
Department of Labor Updates FMLA Forms
The U.S. Department of Labor recently updated the various forms needed by employers to administer the Family and Medical Leave Act. Except for adding language referencing the Genetic Information Nondisclosure Act (GINA) to the certification forms dealing with leave for a serious health condition or to care for a military service member, the forms were not substantively changed. The new forms can be found on the DOL website: http://www.dol.gov/whd/fmla/.
EEOC v. Abercrombie & Fitch Stores Inc.
The U.S. Supreme Court has clarified that employers may not make hiring decisions motivated in any way by an employee’s perceived religious practices. In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc.
, a fashion clothing store refused to hire an applicant who wore a headscarf to an interview because the interviewer thought she wore the headscarf for religious reasons and might need an accommodation of the store’s physical appearance policy. Abercrombie & Fitch argued that, because the applicant had not actually informed it that she wore the headscarf for religious reasons and would need an accommodation, it had not violated Title VII’s ban on religious discrimination. The Court rejected this view, holding that an employer cannot make employment decisions motivated by an employee’s religious practices even if the employee has not requested an accommodation.