Imagine the sweet taste of revenge that a jury verdict of over $2.6 million against a former employer would bring. Imagine how you many ways you would pamper yourself with all that money because your employer did you wrong and fired you because of your ...


Appellate Court Takes a Shot at Pharmacist Who Can’t Give Shots and more...

Appellate Court Takes a Shot at Pharmacist Who Can’t Give Shots

Imagine the sweet taste of revenge that a jury verdict of over $2.6 million against a former employer would bring. Imagine how you many ways you would pamper yourself with all that money because your employer did you wrong and fired you because of your disability. Then, imagine an appellate court taking all of it away from you. Now you know how Christopher Stevens feels.

When Rite-Aid Pharmacy wanted to start offering flu shots and other immunizations to its customers, it notified all of its pharmacists that they would be required to undergo training to administer these shots. That presented a big problem to Christopher Stevens, a 34 year veteran pharmacist working for the company with excellent evaluations.

It turns out that Stevens has a genuine needle phobia. Just the sight of a needle makes him sweat, shake, turn pale and feel anxious and faint. The disorder has a name – trypanophobia. When he received notice in 2011, along with the other Rite Aid pharmacists, directing him to undergo training to obtain a certificate to administer immunizations, he promptly provided the company’s HR department with a note from his physician describing his trypanophobia and advising that Stevens could not undertake the training or administer immunization shots. Stevens himself made a request for a reasonable accommodation under the ADA as a result of his disorder, including the suggestion that customers could go to nearby Rite Aids for immunizations. The company did not relent on the training directive. The day after submitting his physician’s note, company representatives visited Stevens at his assigned store and told him that if he did not attend the training, he would be fired. He refused. Shortly thereafter, they made good on their promise, and discharged Stevens for failure to attend immunization training.

Stevens filed a charge of disability discrimination with the EEOC. The agency made a determination that trypanophobia is a disability under the ADA and brought suit against Rite Aid for violating the Act for failure to accommodate Steven’s disability and for discharging him for failure to attend the immunization training.

A New York federal court jury found in favor of Stevens with the clincher seemingly that when Stevens was hired by the company, it did not offer immunizations to customers and so administering injections was not part of the job description, but Rite Aid rewrote its pharmacist job description in 2011, and administering immunization shots was not included among the 16 enumerated essential functions of the job, despite the fact that the company had its immunization program in place by then.

In overturning the verdict, the appellate court found that in evaluating whether a particular job function is “essential,” for purposes of determining whether a person is a “qualified individual” under the ADA, the court considers the employer's judgment, written job descriptions, the amount of time spent on the job performing the function, the mention of the function in a collective bargaining agreement, the work experience of past employees in the position, and the work experience of current employees in similar positions. The court found that Rite-Aid had made a definite business decision to require pharmacists to administer immunizations as of 2011, as evidenced by, among other things, the mandatory training of all pharmacists in this function, despite it not being identified as such in a job description.

Along with its finding that administering shots was an essential function of Stevens’ job, the court found that Stevens failed to offer any reasonable accommodation which would allow him to perform that function. Neither sending customers to another store, nor providing him with desensitization therapy were reasonable. In particular, the court found that sending an employee for therapy or medical treatments is not a reasonable accommodation.

Despite a tough loss at the outset, Rite-Aid proved that it did things right. It was able to show that it had fully integrated administering immunizations as part of their pharmacists’ duties, including providing special mandatory training, thereby showing that it was now an essential function of the job. Employers should regularly review job descriptions to ensure that they reflect current duties of the job. New duties should be immediately identified as essential if they are such.

What Can Employers Expect from President Trump’s EEOC?

President Trump has made no secret of his desire to change the direction of most federal agencies, and it appears as though the EEOC is no exception. As the EEOC has become an increasingly important part of the relationship between employers and employees, employers should pay attention to the ways in which the EEOC will change. These changes will likely include:
  • A change in priorities. During the last few years of the Obama Administration, the EEOC focused on pushing new interpretations of existing employment statutes. For example, the agency took the position that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of sexual orientation and gender identity. Given the intense Republican criticism to this policy, it is almost certain that the EEOC will back away from this. In addition, on March 31, 2018, new reporting requirements are scheduled to take effect which would require employers to provide the EEOC with data about employee pay and hours categorized by race and gender. Republicans, including Vice-President Mike Pence, have argued that these regulations are onerous on businesses and unnecessary. In light of this, it seems likely that President Trump’s EEOC will rescind these reporting requirements.
  • More business-friendly personnel. Under the final years of the Obama Administration, the EEOC took an aggressive approach towards enforcing federal employment laws, bringing record numbers of lawsuits against employers. This will almost certainly change under the Trump Administration. The EEOC’s Acting Chair, Victoria Lipnic, has promised to focus on policies that create jobs. Additionally, the President will almost certainly appoint more business-friendly commissioners. The EEOC has five commissioners, and currently three of them are Democrats and a fourth mostly sides with them. The commissioners serve five-year terms, so as the terms of the Democrats comes to an end, they will likely be replaced with Republican appointees. While only three commissioners can be from the same political party, President Trump can appoint pro-business Democrats or independents to fill the other vacancies.
A less aggressive EEOC will undoubtedly benefit employers. However, the EEOC is an independent agency, so the President’s ability to influence it is more limited than it would be for a cabinet level position like the Department of Justice. Therefore, employers should expect EEOC policies to change more gradually than those of other agencies.

If the EEOC has brought a charge against you, click here for advice on responding or contact an experienced attorney.

Can an Employer Ban Smoking During Work Hours?

Even smokers have to admit that smoking increases the risk of health problems. And employers know that employees who smoke face a higher probability of using employer sponsored health insurance. While wellness programs educate and sometimes reward employees for making good lifestyle choices for themselves, what if an employer could go a step farther and just prohibit their employees from smoking.

This is a trend among hospitals and medical businesses in some states, to increase productivity and healthy living. In Illinois, that’s going overboard with a good idea. First of all, the Illinois Right to Privacy in the Workplace Act prohibits employers from taking any adverse action against an employee for engaging in lawful activities when not on work time. Obviously, that includes smoking and the Act prohibits any disciplinary action or negative action, like failure to promote an employee if they smoke off the employer’s premises during nonworking time. Remember, a lunch break, whether or not it’s paid, is nonworking time if the employee is free from any work responsibilities.

Secondly, how does an employer exactly monitor a no smoking rule during work hours? Does someone follow employees out on their lunch break to see if they’re secretly lighting up? Or smell them when they return from lunch? Clearly that’s not practical, and what is the sense in having a rule if you can’t or you’re simply just not going to enforce it? Thirdly, a no smoking rule runs the risk of bumping up against some ADA issues. Individuals being treated for addictions can be covered by the ADA.

What employers can do is control work premises. A prohibition on smoking anywhere on work premises, including employer owned parking areas is permissible and will address a great deal of the issue. It will certainly stop smoke breaks on the premises, by, depending on the location of the workplace, forcing an employee to get in his or her car and drive somewhere to have a quick smoke. Monitoring break times will deter that activity.

The Health Insurance Portability and Accountability Act (HIPAA) prohibits health plans from discriminating among plan participants based on a health factor. Generally, this means that plans cannot charge individuals different premiums or impose different costs based on health status, medical history, or claims experience. However, HIPAA provides an exception to this rule by permitting wellness programs that promote health and disease prevention, provided that certain requirements are met.

A wellness program that provides a "reward" based on a health factor (such as a reduced health insurance premium for not smoking) must satisfy each of the following four requirements:
  1. The reward cannot be more than 10-20% of the total cost of the coverage
  2. The program must be designed to promote health or prevent disease
  3. The program must be available to all similarly-situated participants
  4. A reasonable alternative must be available for individuals for whom it is unreasonably difficult to meet the standard or for whom it is medically inadvisable to attempt to meet the standard.
Additionally, employers can offer incentives or penalties to employees for participation in employer sponsored wellness programs, with certain limitations. This too, can encourage employees to focus on establishing and maintaining healthy habits.

Fair Share Dues Case May Be Headed to Supreme Court

Earlier this week, the 7th Circuit kicked to the direction of the U.S. Supreme Court the most recent case opposing payment of fair share union dues. In Janus, et al v. American Federation of State County and Municipal Employees, et al, the plaintiffs are two “fair share” members of AFSCME and Teamsters, respectively, who claim various violations of their constitutional rights as public employees by being forced to pay fair share dues, an amount set by a union which they charge to employees in job titles represented by a union where the employee chooses not to be a union member. Fair share dues are supposed to cover the bargaining and contract administration cost of the union from which non-union employees benefit by virtue of being in a union represented job title. In practice fair share dues for public employees are typically more than 90% of full union dues.

Fair share dues for public employees were initially sanctioned by the U.S. Supreme Court in the case of Abood v. Detroit Board of Education in 1977. That case involved a Michigan public employee with very similar claims to those raised by plaintiffs in the current case. As readers may recall, this same issue was before the U.S. Supreme Court last term in the case of Friedrichs v. California Teachers Association. While many experts believed that the U.S. Supreme Court would overturn the Abood  decision in that case, thereby relieving employees from fair share dues payments, Justice Scalia’s death left the court with a 4 – 4 decision, resulting in the lower court’s decision of affirming fair share standing.

This week, the 7th Circuit, in a quick decision of the Janus v. AFSCME case, acknowledged that it was bound by the Abood decision, thus clearing the path for the plaintiffs to appeal to the U.S. Supreme Court. With the likely appointment of Neil Gorsuch to the Supreme Court, who has a strong decision history of pro-business, the court may abolish fair share dues for public employees. That will serve as a real financial blow to public employee unions in Illinois and elsewhere and weaken the power of those unions. After all, a majority of employees in a workplace might sign cards or vote to be union represented, but many of those employees might ultimately decline to be union members, leaving public employee unions with all of the responsibility of union representation but far less of the revenue derived from it.


What Employers Need to Know About “Trumpcare”

As you have probably heard, House Republicans recently released a proposal, which some have labeled “TrumpCcare,” that would make major changes to the Affordable Care Act (aka ObamaCare). While some Republicans have criticized the proposal known as the American Health Care Act, as not changing ObamaCare enough, even referring to it as “ObamaCare Lite,” the proposal does make some pretty significant changes to the Affordable Care Act that employers should be aware of. Some of these include:

Repealing the mandate that employers provide health insurance to their employees. Currently, ObamaCare requires employers with 50 or more employees to provide health insurance to all employees working 30 or more hours a week. The Republican proposal would do away with this, and even provide relief for employers who paid penalties in the past for not complying with this mandate.

Employees will be able to contribute higher amounts to Health Savings Accounts (HSAs). Currently, a single employee can only contribute $3,400 to an HSA and an employee with a family can contribute $6,750. Under the Republican proposal, that will increase to $6,500 and $13,000, respectively.

The cap on the amount of money that an employee could contribute to a flexible spending account (FSA) would be repealed, and employees would be free to contribute as much as they want. Additionally, money in an FSA could be used to purchase over-the-counter medications.

The "Cadillac tax", which imposes huge taxes on high-cost health insurance plans, will not go into effect until 2025. As we have discussed, this tax, which was initially scheduled to go into effect last year, was delayed by two years because both Republicans and Democrats opposed it. Due to this opposition, I am skeptical that it will ever go into effect.

Young adults can stay on their parents’ plan until they are 26.

Employers will be permitted to deduct amounts paid for retiree prescription drug coverage as a business expense.

It is important to remember that the American Health Care Act is only a draft and will undergo further revisions in the Senate, and possibly from the White House, before it is passed. There is even a chance that it will not pass Congress, and the Affordable Care Act will remain in place. While the American Health Care Act makes its way through Congress, the Affordable Care Act will remain in place. It is anybody’s guess when the AHA will be passed, but it is unlikely that it will happen until at least the fall.

If it does pass Congress, the American Health Care Act, along with possible changes to the corporate tax system, will affect employers more than any other legislation in the near term. Therefore, you should stay tuned to our blog for updates.

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