EEOC wellness restrictions, supporting Equal Pay Act claims, grandfathering HOA/condo violations, FMLA reasonable accommodation, and more in Our Social Media Posts This Week, Jan. 31 – Feb. 6, 2021.

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

EEOC proposed wellness regulations under ADA and GINA

In the post on Sunday 1/31/21 we learned that the EEOC’s proposed wellness Regulations restrict incentives for voluntary programs but offers path for programs satisfying ACA standard. The Regs were released about a month ago under the ADA and GINA (but as of 1/15/2021 had not been published). The Regs clarify the extent to which wellness program that comply with IRS, DOL and HHS regulations on plans issued under the ACA will be deemed compliant with the ADA and GINA. This is important as many employers offer wellness programs; some have incentives to participate, others do not. Many laws are implicated by wellness programs; many are enumerated in the post. Those programs that offer incentives raise special concerns as noted in the post. However, HIPAA Regs (updated in 2013 to incorporate ACA provisions) provide a roadmap for compliance; they are divided into 2 categories as noted and described in the post. But the EEOC warned that even if HIPAA-compliant, a wellness program might still violate the ADA, GINA, or other federal laws (with examples as in the post). The 2016 Regs issued by the EEOC to clarify that uncertainty were vacated by judicial order. Now there are new proposed Regs; they address the concerns expressed by the judge in 2016 (how is noted in the post) and go farther (again, see the post).

TAKEAWAY: Keep an eye on these proposed Regs; if they become final, you need to know how to comply. Get legal assistance if needed.

old salary explanation may still support
equal pay act claim

The post on Monday 2/1/21 explained that a dated salary explanation can support an Equal Pay Act claim. Background anyone? The Indiana Academy for Science, Mathematics and Humanities (which is on the campus of Ball State University) hired Kellogg in 2006 as a life science teacher. She negotiated her salary with the academy’s executive co-director (what he allegedly told her during the salary negotiations – including how it affected or was affected by her family – is in the post). In 2017, Kellogg complained to the Ball State Dean overseeing the academy about unequal pay. How the dean responded is in the post. Not satisfied, Kellogg sued in 2018 under Title VII and the EPA. The federal trial court granted the Academy’s motion for summary judgment (on the bases noted in the post). Kellogg appealed. Summary judgment was overturned and the case sent back to the trial court for further proceedings; the basis upon which the appellate court ruled is in the post along with the instructions given to the trial court).

TAKEAWAY: This case provides a roadmap for employers relative to prior pay practices; don’t let earlier salary decisions haunt any current or future pay-discrimination claims.

timing of facts is important to retaliation claim

The post on Tuesday 2/2/21 taught us that there is no retaliation where termination was ‘in motion’ before the complaint. Fitzgibbon served as chief tax appraiser in Georgia. He started to have difficulties performing his job, resulting in a 2-month delay in the county collecting taxes. The Board met to discuss the situation; there was also more relative to his performance (see the post). One Board member floated a proposal to act (as noted in the post). The next day, Fitzgibbon received an email form HR about its investigation into his performance and he replied that he was experiencing reverse discrimination. When he was subsequently fired, he sued, alleging retaliation under Title VII (and other claims). The federal trial court ruled against Fitzgibbon – the basis is in the post. He appealed and the ruling was affirmed.   

TAKEAWAY: Temporal proximity between a protected act and an adverse action can support a retaliation claim, but the facts must support the timing. Know the law – and facts – and get legal assistance.

violations of hoa/condo rules may be grandfathered

From the post on Wednesday 2/3/21 we learned that violations that predate HOA/condo covenants or rules may be grandfathered. Here, the Association has certain restrictions in its Governing Documents (see the post). A resident erected 2 sheds without following protocol; 12-24 months have passed and nothing has been done. The complicating factor is noted in the post. Other sheds that have bene approved meet the restrictions in the Governing Documents. Whether the 2 sheds at issue are allowable may depend on whether the Association has selectively enforced the Governing Documents or (implicitly or impliedly) waived some or all of the applicable restrictions. The difference between those two things is explained in the post. Timing might also be important, especially if what is a violation occurred before the restriction that it violates – see more of an explanation in the post.

TAKEAWAY: Know your Governing Documents and consult a community association attorney for legal support and guidance.

legal standard for willful violation
of the fmla

In the post on Thursday 2/4/21 we learned that a majority of federal courts now  agree on the standard for willful violations of the FMLA. Let’s first review the background, then the standard that came out of it. Andrea Olson provided consulting services to Bonneville Power Administration via a third-party administrator. Olson suffered from anxiety and went on FMLA leave. BPA did not give her notice of her FMLA rights. A month into the leave, BPA discussed terminating Olson (why is in the post) but decided not to. What else happened at this point is noted in the post. Then about three months into the leave, BPA agreed that Olson could telework; she thought they wanted her to train her replacement, so she refused and never returned to work. What she did instead was sue BPA for interference with her FMLA rights (on the basis noted I the post). The case went to trial and the decision was in favor of BPA. Olson appealed; the question was whether BPA’s failure to notify her of her FMLA rights prejudiced her. Not needing to get to the merits of that argument, the appellate court instead looked to whether BPA’s failure was willful, a term not defined by the statute.  How the court arrived at its definition is in the post, including the facts that were relevant to the decision.

TAKEAWAY: While this does not (yet?) apply in PA, it provides good guidance to employers and employees in cases of alleged FMLA interference and whether a claim is valid.

lenght of absence matters as ADA accommodation

The post on Friday 2/5/21 showed us that a court found lengthy leaves of absence may not be reasonable accommodations under the ADA. While this is not a new analysis of the question, it is important to repeat. The decision came down December 30, 2020. McAllister had been employed as an assembly worker. She began a medical leave of absence after being injured in a car accident. She applied for both STD and FMLA leave; her doctor offered a certification that included what is noted in the post. Her anticipated return to work date was extended several times; finally, after the approved leave expired, the employer terminated her after learning that she would not be able to return for at least 2 more months. McAllister sued, alleging failure to accommodate under the ADA. The trial court granted summary judgment for the employer; on appeal, that decision was affirmed. The court analyzed the facts under the applicable statutory provisions, including whether McAllister was entitled to protection under the ADA and, if so, whether an additional 4 months of leave was a reasonable accommodation. See the post for the analysis.

TAKEAWAY: Every case is fact-specific, but keep in mind that an extended leave may not be a reasonable accommodation under the facts. Consult an employment lawyer.

statute of limiations as affected by contractual provisions

Finally, in the post yesterday 2/6/21, we saw that a federal court invalidated the contractual limitations periods under the ADA and ADEA. The decision at issue came down January 15, 2021 and held that an employee cannot waive the statutory limitations periods in the ADA or ADEA by agreeing to a shorter period in a contract. So, what was the background? Thompson sued, asserting various claims including discrimination under the ADA and ADEA. The employer argued that she had agreed to a certain limit on claims by acknowledging same as contained in the handbook, such that her claims were not timely filed. The court said the contract was enforceable as to state law claims, but not those under the ADA and ADEA. Why the court held that way is in the post. Another federal appeals court held similarly under Title VII recently – that decision is linked in the post.

TAKEAWAY: Know both what is allowed and required under applicable laws – and make sure that anything contrary to that in your handbook or policy manual is legally able to be bargained away by contract. Consult employment law counsel.

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