Discrimination on the basis of disability has contributed to significant disparities in healthcare and child welfare. To address these disparities, the US Department of Health and Human Services (HHS) recently proposed updated regulations implementing Section 504 of the Rehabilitation Act of 1973 to prohibit discrimination on the basis of disability in programs or activities that receive HHS funds. Although most of the revisions align with expectations imposed on stakeholders through other federal laws, some proposed changes are unique to HHS programs, including regulations impacting medical treatment, value assessments, medical diagnostic equipment, digital media and child welfare programs.
A Pennsylvania federal judge recently allowed an employee to move forward with a discrimination lawsuit after her employer terminated her following a positive COVID-19 test result. According to this Bloomberg Law article, the judge noted that COVID-19 could be considered a disability under the Americans with Disabilities Act (ADA); however, it’s unclear if the ADA also protects infected workers before they display long-haul COVID-19 symptoms. McDermott Partner Brian Mead said the employee’s presentation of long-haul COVID-19 symptoms (including loss of smell and taste) was also key in the judge’s ruling.
“The difference between having a cough or a substantial lung impairment is the difference between being covered by the ADA or not covered,” Mead said.
Research continues to shed light on COVID-19’s long-term health effects for some people, and these “post-COVID conditions” will create additional challenges for employers.
In this Law360 article, McDermott partner Carole A. Spink says employers should be aware that long-haul COVID symptoms mean additional accommodations for employees.
“As they have done throughout the pandemic, employers should have a plan for addressing potential long-term absences as a result of post-COVID effects. On the practical side, at some point employers may need to determine whether a particular situation has become such that providing a continuing reasonable accommodation would pose an undue burden,” Spink notes.
As governments lift COVID-19 pandemic restrictions, employers are turning to artificial intelligence tools to accelerate their hiring processes.
However, these AI-based tools can open businesses up to discrimination claims if they are not careful, according to McDermott partner Brian Mead.
“[The technology] could decide that certain words [are] unlikely to [yield] successful candidates, and then it’s prescreening out members of protected classes and categories of applicants in a discriminatory way,” Mead said in a recent Law360 article.
Executives are no longer reluctant to lawyer up. News reports on executive/employer contretemps at Papa John’s, Barnes & Noble, Uber and other companies have drawn press attention in the past year; countless other executive/employer disputes have flown below radar.
Underlying these controversies is the executive’s employment agreement, typically the most high-stakes and closely negotiated employment agreements to which companies will contract. Yet, these agreements often contain less clarity and less certainty than either executives or their employers need. Indeed, there appear to be three areas where these contracts could and should be upgraded. Let’s look at each.
The US Department of Labor’s Employee Benefit Security Administration recently released final rules on the adjudication of disability claims under welfare and retirement plans (the Final Rule). The purpose of the Final Rule is to add procedural protections and safeguards that are aimed at providing a full and fair claims review process for disability benefit claims, similar to those applicable to group health plans under the Affordable Care Act. The Final Rule also contains helpful guidance for claims and appeals procedures under all types of ERISA plans.
European employers should exercise caution in the event of the dismissal of an obese employee. The European Court of Justice (ECJ) determined that obesity may qualify as severe disability if it significantly restricts participation in working life (ECJ, judgment of December 18, 2014 in Case C-354/13). This decision may be relevant not only for dismissals but also in hiring decisions. In order to avoid undue discrimination, an employment rejection letter should in no way whatsoever refer to the applicant’s weight. The plaintiff in the present case was an obese nursery teacher who filed a suit against his employer, the Danish community Billund, because of his dismissal. The employer argued that the dismissal was due to declining numbers of children being registered. The nursery teacher argued that the reason for his dismissal, after 15 years of employment, was his obesity, which constituted undue discrimination due to disability.
The ECJ clarified that European Union law does not contain a general prohibition with respect to obesity discrimination in employment. Nevertheless, obesity may qualify as severe disability if it significantly interferes with full and equal participation in working life. This can happen in cases of a particularly serious obesity of long duration, which causes physical, intellectual and mental impairment. According to this definition, the cause of the obesity is irrelevant. Now, following the decision of the ECJ, the Danish trial court has to decide if the nursery teacher’s obesity significantly interferes with full and equal participation in working life.
The decision of the ECJ may have significant impact on German employment law. Up until now, only conditions resulting from obesity (e.g., diabetes or chronic back pain) qualified as a severe disability. Following the decision of the ECJ, obesity itself may qualify as severe disability. It remains to be seen whether – and, if so, at which level –the ECJ will establish thresholds under which a dismissal or a rejection of an applicant is considered discriminatory due to obesity. Until then, the decision of the ECJ gives rise to considerable legal uncertainty.
Subscribe
