All posts tagged equal employment opportunity commission

EEOC Says Use of Service Dog is ‘Reasonable Accommodation’ under ADA

Close-up on the vest of a service dog

The Equal Employment Opportunity Commission has sued an employer for refusing to hire a job applicant because he used a service dog.

In the complaint filed in March, the EEOC accused the employer of failing to accommodate, refusing to hire and retaliating against the man who’d applied for a truck driver position.

The action illustrates just how broadly the EEOC construes the Americans with Disabilities Act when it comes to individuals who rely on service or comfort animals to cope with their disabilities.

In the case at hand, the applicant had been admitted to driver training with the trucking firm’s partner training company. Before starting the training the applicant told the company that he is a veteran who uses a trained service dog to help control anxiety and to wake him from nightmares caused by post-traumatic stress disorder.

After he successfully completed the training program, the trucking firm refused to advance him to its driver-orientation additional training on the road, which required staying overnight from home. Moreover, the company had a “no pet” policy and never hired him.

Incidentally, the EEOC noted that at the same time the company had denied the applicant’s request to accommodate his service dog, it developed a new service dog process to address requests seeking the use of such animals.

The EEOC has asked the court to order the company to hire the applicant and pay him back pay as well as compensatory and punitive damages.

The agency notes that using a trained service dog can be a reasonable accommodation for a disability and that employers must consider requests to use a service dog seriously.

Respond quickly and effectively to harassment, discrimination complaints

A businesswoman shouts through a megaphone and points up towards a much larger businessman who is standing over her.

Employers need to respond swiftly when employees complain about discrimination or harassment and the response must be effective, a U.S. District appeals court has held.

When a company addresses workplace it is responsible for ensuring that its solution will stave off further harassment or discrimination, a court of appeals has held in a case of a father and son who were eventually fired after complaining about harassment.

The case illustrates the need for an employer to not only act swiftly to respond and investigate claims of harassment or discrimination, but also to ensure that any remedies that are put in place are effective. Barring that and if the harassment or discrimination resumes, an employer could be opening itself up to a possible lawsuit.

In the case of Efrain Reynaga v. Roseburg Forest Products, the 9th District Circuit Court of Appeals held that a Hispanic millwright’s discrimination case against his former employer should go to trial and the court overturned a motion for summary judgment.

 

What happened

The case involved a father and son who worked as millwrights for Roseburg Forest Products and they were reportedly the only Hispanics working at the site.

The father claims they were regularly subjected to verbal abuse and derogatory comments from the lead millwright and harassed them, including comments like “minorities are taking over the country” and asking if “all Mexican women are fat.”

They also say they were regularly assigned dirtier, harder and more dangerous jobs than their white counterparts. When hostile work environment worsened, the father complained.

The company took action and rearranged the supervisor’s schedule so that he would not work the same shifts as the father and son.

But one day when they showed up to their shift, their old supervisor was there they immediately left the premises. They told their new supervisor they would not work with their old boss and they were promptly suspended and the father was later fired.

Reynaga sued Roseburg for hostile work environment, disparate treatment, and retaliation. The lower court granted the employer’s motion for summary judgment and threw out the case, but the appeal’s court decision reversed that decision, which means the case can go to trial.

 

The decision and why it’s important

The appellate court, in making its decision, said that a jury could find the termination retaliatory, saying that the termination for missing one-and-a-half shifts was widely out of proportion to the company’s “benign treatment of [the supervisor].”

“Efrain’s prima facie case is strong, particularly in light of the timing of the termination. Efrain had worked at Roseburg for more than five years, yet he was fired barely one month after making a formal written complaint. Proof of a causal link between Efrain’s complaint and his termination-as evidenced by temporal proximity-is certainly relevant to an evaluation of pretext.”

 

The takeaway

If you have had an employee legitimately complain about a hostile work environment, harassment and discrimination, you should:

  • Move quickly to investigate and address the issue if you find the complaint to be valid.
  • Ensure that the action you take is effective.
  • Don’t retaliate against employees for complaining about harassment or discrimination.

 

Remember, harassment and discrimination cases that go to trial can be costly in terms of litigation expenses, but also any potential judgments and penalties. The final level of protection is employment practices liability insurance.

Talk to us if you want to know more about this coverage.

EEOC Eyes Employer Actions against Prescription Drug Users

By now you will be aware of the scourge of opioid abuse that’s swept the country over the past decade and the damage it is doing to individuals and families.

Overdoses from legal prescription drugs – mostly opioids and other strong pain relievers – last year surpassed overdoses from street drugs like heroin for the first time.

However, some employers are going too far in trying to prevent employees from taking certain medications while on the job and have as a result run afoul of the Equal Employment Opportunity Commission.

As you would enter an interactive process when trying to make accommodations for an employee’s disability, you must do the same if you have concerns about a worker taking prescription drugs for a medical condition.

Two recent lawsuits illustrate the issues that could spark action by the EEOC.

 

Refusing to hire after drug test

One case, filed in September 2016, concerns a woman who had her job offer by a casino rescinded after she had failed a pre-employment drug test. But the applicant was taking prescription medication for a back and neck impairment, which caused her to fail the test, the EEOC alleges.

Despite the applicant’s explanations and even offering to provide documentation, the casino still refused to hire her, according to the agency.

The EEOC alleges that the company violated the Americans with Disabilities Act (ADA) when refusing to hire the applicant, because she was taking lawful prescription drugs due to a disability.

The lawsuit also challenges the casino’s blanket policy requiring all employees, regardless of whether they work in safety-sensitive positions, to disclose their prescription or non-prescription drug use.

 

Fired for prescription drug use

The EEOC sued a medical center in Georgia for firing one of its doctors after learning that he was taking prescription narcotics to treat chronic pain for which he was undergoing treatment.

He was terminated despite offering to provide a letter from his own doctor explaining why he was taking the medication and receiving spinal injections. The medical center said he would be unable to perform his duties while taking the medications.

The EEOC alleges that the physician could have performed his job safely and competently, and that the medical center failed to enter into a dialogue with him, in violation of the ADA.

 

The takeaway

The Littler Mendelson law firm in a recent blog had the following tips for employers:

  • If you suspect someone is taking prescription narcotics that are affecting their performance, you can have a talk with them. If they have a prescription, you may need to enter into an interactive process with them to try to find ways to accommodate them under the ADA.
  • If they are taking pharmaceuticals for which they do not have a prescription, that is illegal drug use and you can impose discipline for violating your policy against illegal drug use.
  • You can still conduct pre-employment drug tests legally and regulate abuse of drugs in the workplace. But make sure that you account for the need to engage in an interactive process with individuals taking prescription medications and, if necessary, provide reasonable accommodations.
  • Avoid taking adverse actions when you have not gathered all of the facts.
  • You cannot have a policy that requires all employees to divulge the prescription medications they are taking. However, there are exceptions when public safety and the safety of other employees is concerned.

EEOC’s Data Collection Proposal Could Spike Litigation against Employers

equal pay

A new proposal by the U.S. Equal Employment Opportunity Commission to collect pay data from all organizations with more than 100 employees would likely open up employers to further litigation and regulatory actions.

The EEOC says it wants to use this data to identify areas of possible pay discrimination. But this fresh trove of data would likely lead to litigation by employees who feel they are underpaid compared to their colleagues, and to administrative actions, according to employment law attorneys.

The commission already uses so-called EEO-1 reports to collect demographic data about employers’ workers, such as race, ethnicity, sex, and job category of employees. Under the proposal, starting in September 2017 it would also gather data on pay ranges and hours worked.

The EEOC and the Department of Labor would use this data to identify pay disparities across industries and occupations, and strengthen federal efforts to combat pay discrimination.

The agencies would also use the information to assess complaints of discrimination, focus agency investigations, and identify pay disparities that it could probe more deeply.

Under the proposed regulations, employers with more than 100 workers and who file the EEO-1 forms would be require to include on the revised form:

  • Total W-2 earnings.
  • Aggregate W-2 data in 12 pay bands (pay ranges) for the 10 EEO-1 job categories. Employers will count and report the number of employees in each pay band.
  • The total number of hours worked by the employees in each pay band. The EEOC intends to use this data to analyze pay differences while also taking into account the differences in hours worked, as well as accounting for part-time work. (Note: The EEOC made a point of saying it doesn’t want data about specific employees, and that the data will be kept confidential.)

 

EEOC investigators would analyze W-2 pay distribution within single organizations and compare that data to aggregate industry or metropolitan area data.

 

Employers react

Already there has been pushback from employer groups about the administrative burden this would put on businesses. And some have voiced concern that data could be misconstrued as it fails to take into account the subjective factors influencing pay, such as experience and skill.

According to a new report in Bloomberg BNA, the EEOC’s assurance that it will keep employers’ pay data confidential doesn’t necessarily mean it will. It interviewed one labor law attorney who said that the data could be subject to Freedom of Information Act requests.

There are also “serious questions” about relying on the W-2 data, as pay could be influenced by shift differentials, an employee’s willingness to work overtime and other factors, Greg Keating of Boston-based Choate, Hall & Stewart L.L.P. said.

An employee’s W-2 form “doesn’t tell the whole story by any means,” he said, adding that pay differences within pay bands also can occur for many reasons that have nothing to do with gender or race bias.

So, the data on which the EEOC intends to rely is “quite suspect” as an indicator of any unlawful practice, Keating said.

Another attorney, Stanley Pitts, a partner with Honigman Miller Schwartz & Cohn L.L.P. in Detroit, told Business Insurance magazine that the EEOC is most interested in probing higher-paid categories and “trying to look at the ‘glass ceilings’ for gender or pay discrimination.”

 

The takeaway

At this point, it’s unclear how the EEOC might use this data, but employers can nonetheless take some preemptive action.

The law firm of Thompson Coburn LLC in a recent blog recommends that employers with more than 100 workers examine their payrolls to identify any inadvertent pay differences and to compare the pay rates of similarly situated employees when changing workers’ salaries.

The law firm also recommends that employers that currently must submit EEO-1 reports conduct self-audits of their payrolls to identify any areas where they could be vulnerable to litigation for unequal pay practices.

The public has until April 1 to submit comments on the proposed rules.

 

 

Telecommuting Not Required for ADA ‘Accommodation’

A federal appeals court recently ruled that telecommuting is a reasonable accommodation for disabled workers, but employers do not have to honor such requests if they have business or strategic reasons for not permitting such arrangements.

The April 2015 decision by the U.S. Sixth Circuit Court of Appeals in the EEOC v. Ford Motor Co. is an excellent illustration of how employers can deal with requests for telecommuting as part of your obligation to accommodate disabled workers. If you are amenable to telecommuting and an employee requests it, you have an easy situation, but if you do not want employees telecommuting for strategic or business reasons, you will need to make sure that you have your ducks in a row.

The dispute in the case centered on Ford Motor Co.’s rejection of an employee’s request to telecommute as an accommodation for her irritable bowel syndrome condition.

The request contemplated the employee telecommuting up to four days each week. Although the Americans with Disabilities Act (ADA) may require job restructuring or modified work schedules as a “reasonable accommodation” for an otherwise qualified disabled employee, many jobs require some collaboration, personal interaction and supervision that is not feasible if someone works from home.

Through the years, Ford had made numerous attempts to reasonably accommodate the employee, a resale buyer for the company, but none of these attempts, which included trials of telecommuting, were successful. Ultimately, the employee asked Ford to be permitted to work from home up to four days per week.

The nature of her job, however, required teamwork, meetings with suppliers and stampers and on-site availability to participate in face-to-face interactions. These factors in the Court’s opinion all necessitated Ms. Harris to achieve regular and predictable on-site attendance.

Ford denied the employee’s request, saying that physical attendance in the workplace was an essential function of her job. The employee filed a complaint with the Equal Employment Opportunity Commission alleging that Ford had violated her rights to accommodation under the ADA. The EEOC brought suit on her behalf after she was fired.

The court, however, determined that Ford did not violate the ADA by rejecting the employee’s request to telecommute, because “regular and predictable attendance” was an essential function of her job. Accordingly, the Court upheld her termination from employment.

 

The lesson

Ford was successful in this case largely because of it hade made serious efforts to reasonably accommodate her before finally concluding that there was nothing else to try.

But this ruling does not mean that employers can uniformly reject telecommuting requests as reasonable accommodations. Instead, an employer should still carefully analyze the employee’s job to determine whether it, or another vacant job for which the employee is qualified, can be done on a telecommuting basis.

If not, the employer should consider whether other reasonable accommodations would permit the employee to successfully perform the essential functions of the job.

Here are the main takeaways:

  • Telecommuting may be a “reasonable accommodation” under the ADA.
  • Employers can require actual physical attendance at work if it is legitimately deemed an essential function of a job.
  • Employers should document that regular physical attendance is an essential job function and include it in any written job description.
  • Employers should be consistent in the application of any telecommuting decisions and document such decisions.

 

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EEOC Opens up New Discrimination Class: Sexual Orientation

In a step that creates a new protected class, the Equal Employment Opportunity Commission has ruled that discrimination based on sexual orientation is illegal under federal law.

The ruling is significant since it essentially sets the stage for employers being susceptible to a new class of lawsuits, opening up an additional area of liability.

While discrimination based on sexual orientation is not spelled out in Title VII of the Civil Rights Act of 1964, it does bar sexual discrimination and the commission ruled that “an allegation of discrimination on the basis of sexual orientation is necessarily an allegation of sex discrimination.”’

Employers will have to change their policies and handbooks and train supervisors and managers on the ruling.

Federal courts are not bound to the ruling, but that said, courts frequently defer to federal agencies when they interpret laws that come under their jurisdiction.

The ruling applies to a number of employment areas, including hiring, termination and promotion decisions, and employee working conditions, including claims of workplace harassment.

It would apply to both job applicants and employees, who would be able to file a complaint with the EEOC if they feel their rights have been violated in this regard.

The EEOC justified its interpretation of sexual discrimination to include sexual orientation by writing:

“Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes or norms. ‘Sexual orientation’ as a concept cannot be defined or understood without reference to sex.”

Here’s an example of what the EEOC means: When a manager mistreats a gay male employee because he dislikes the fact that his employee dates other men, the manager is taking that worker’s sex into account. Such discrimination is obviously sex-based, and therefore forbidden by Title VII.

The ruling is essentially a roadmap for courts to use when hearing cases of discrimination based on sexual orientation. And the issue is especially salient in light of the recent ruling by the U.S. Supreme Court that laws barring gay and lesbian marriages are illegal.

Twenty-two states currently ban workplace discrimination based on sexual orientation.

And under the new guidelines, all sexual orientation discrimination will be considered illegal, empowering gay private employees to lodge discrimination complaints.

Courts may choose to accept or reject the EEOC’s ruling, but the commission’s rulings are respected by the judiciary, and could tip more courts to rule that sexual orientation discrimination is, indeed, already forbidden in the United States.

 

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New Rules for Wellness Plans Finally Proposed

New rules for workplace wellness plans have finally been proposed just as more employers are incorporating such programs to help their workers improve their health and reduce their health insurance premiums.

The Equal Employment Opportunity Commission has proposed rules that aim to set guidelines for employer-sponsored wellness plans that prohibit discrimination against individuals who may be unable to meet the goals set out in these programs.

The new rules also designate what would constitute a reasonably designed plan under the Americans with Disabilities Act (ADA) and the Affordable Care Act, as well as how employers treat medical information collected via a wellness plan.

Some employers will offer financial incentives employees that meet certain goals through their wellness plans, such as losing weight, smoking cessation and other health measures. Some programs penalize employees that do not participate in the programs by requiring them to pay a higher percentage of their premium.

The EEOC’s proposed rules, which are undergoing an open comment period now, seek to set guidelines for how wellness plans can operate in a non-discriminatory fashion.

Here’s what you, as an employer, need to know about the proposed regulations:

 

Financial incentives

  • They limit the financial incentives employers can provide to staff who participate in health-contingent-based wellness programs (described later) to 30% of the annual cost of self-only coverage.
  • Financial incentives tied to smoking cessation programs would be limited to 50% of the total annual cost of self-only coverage.

 

Must promote health or prevent disease

  • Wellness plans must have a reasonable chance of improving health or preventing disease in participating employees, must not be unduly burdensome to employees, and must not violate the ADA.
    EXAMPLE: Reasonable design  – A program that collects information from a health risk assessment to provide feedback to employees about their health risks, or that uses aggregate information from health risk assessments to design programs aimed at particular medical conditions, is reasonably designed.
    Not reasonable design  – A program that collects information without providing feedback to employees, or without using the information to design specific health programs, is not reasonably designed.

 

Must be voluntary

  • Employers must not require employees to participate in a wellness program, must not deny health insurance or reduce health benefits if workers do not participate, and must not discipline them for not participating.
  • Employers must not penalize employees by forcing them to take on a larger share of their premium. However, employees can be given the aforementioned financial incentives for participating.

 

Must not be discriminatory

  • Wellness programs must never be used to discriminate based on disability, and safeguards must be in place to prevent such discrimination.
  • Employers must not interfere with the ADA rights of employees who do not want to participate in wellness programs, and must not coerce, intimidate or threaten employees to get them to participate or achieve certain health outcomes.

 

Medical information confidentiality

  • Medical information obtained through a wellness program must be kept confidential.
  • Generally, employers may only receive medical information in aggregate form that does not disclose, and is not reasonably likely to disclose, the identity of specific employees.
    • Employers must provide employees with a notice that describes what medical information will be collected as part of the wellness program, who will receive it, how the information will be used, and how it will be kept confidential.
    • Medical information collected as a part of a wellness program may be disclosed to employers only in an aggregate form that does not reveal the employees’ identities, and must be kept confidential in accordance with ADA requirements. Best practices for securing confidentiality will be provided.

 

Reasonable accommodation

  • Employers must provide reasonable accommodations that enable employees with disabilities to participate and to earn whatever incentives the employer offers.
    EXAMPLE An employer that offers an incentive for employees to attend a nutrition class must, absent undue hardship, provide a sign language interpreter for a deaf employee who needs one to participate in the class.

 

The proposed rules will be open for public comment until June 19, at which point the EEOC’s board of commissioners will review the comments and make any necessary changes before issuing the final rules.

 

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EEOC Increases Scrutiny of Harassment Claims

The Equal Employment Opportunity Commission is likely to redouble its policing of workplace harassment, agency heads announced at a recent meeting in January to lay out the EEOC’s 2015 agenda.

According to EEOC chairwoman Jenny Yang, “We are developing strategies that focus on targeted outreach and education as well as systemic enforcement to promote broader voluntary compliance.”

That means that employers can expect mounting scrutiny in this area if an employee files a complaint with the agency.

The EEOC supported its interest in harassment because more than 30% of all charges it makes include harassment allegations. In 2014, 6,862 charges alleged sexual harassment, while 4,848 disability discrimination charges and 9,023 racial discrimination charges included some allegation of harassment.

During the EEOC’s meeting, the following recommendations for the employer community were aired:

 

Focus on training – The EEOC recommends and expects employers to provide harassment prevention training to employees. You can impress the agency if you can show that you are providing such training. Key elements of training include:

  • Effective, mandatory and company-wide presentations and workshops offered throughout the year;
  • Specific training for supervisors and managers (separate from non-managers as responsibilities vary depending on position); and
  • Diligent record-keeping of attendance.

 

Sound prevention policy – Prevention starts with a sound anti-harassment policy. Your policy should include detailed instruction on how to report a complaint and identify with whom you can file the complaint in your organization.

The EEOC also recommends that you issue statements that complaints will be investigated promptly and the company will not retaliate against anyone for lodging a complaint. Likewise, you should include a statement that you retain the right to discipline or fire employees who knowingly raise false complaints.

 

 Communication  – Make sure that you properly communicate your policy, that it reaches everyone in your organization, and that they understand the importance of the policy. Post it electronically if possible, and on bulletin boards in areas frequented by your staff.

Also, don’t forget to include your policy in your employee handbook, and discuss the policy during training sessions and company meetings.

 

Effective investigation – Take a look at your investigation process. You should train your supervisors and managers in how to identify complaints. Once you’ve received a complaint, you should investigate promptly. Document complaints, witness statements and circumstances.

The EEOC recommends that you suspend the accused harasser, with or without pay, and immediately remove any offensive graffiti or material. Another option is to offer, if possible, a temporary transfer of either of the parties involved.

Identify and question all potential witnesses and make a note of those who were actual witnesses to the alleged harassment as opposed to those who just heard about it through others.

One of the EEOC’s biggest focuses will be if there are systemic issues that indicate a lackadaisical attitude about workplace harassment.

The January meeting emphasized the importance of employers raising the subject of harassment, expressing strong disapproval, developing appropriate investigation processes, imposing sanctions where appropriate, and informing employees of their rights under Title VII. That is what the EEOC will be looking for.

 

The takeaway

With the EEOC continuing to step up harassment investigations and charges, you need to review and, if needed, update your policies, training and investigative procedures to jibe with the agency’s expectations of an exemplary employer.

And remember, having a policy is insufficient if it is not communicated understandably to your workers. For example, in a workforce that includes many teens, the policy should be understandable to the average high school student.

Finally, it would be wise to secure employment practices liability insurance, which will usually cover costs associated with being sued or charged by the EEOC. We can help. Give Wright & Kimbrough a call! or go to contact us.

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Backlash as Concern Grows over EEOC Targeting Wellness Plans

A backlash is building against the Equal Employment Opportunity Commission’s recent moves to challenge certain workplace wellness programs offered by large U.S. employers.

The EEOC’s actions are threatening to erode backing for the Affordable Care Act among large corporations who have supported the law because it included provisions encouraging the wellness programs. Employers are pleading with the EEOC to issue clear guidelines, but to date none have been issued.

That’s left many employers wondering whether they could be next if the EEOC deems that their wellness plans run afoul of the ACA, the Americans with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA), among other laws.

Wellness programs are designed to tackle health care costs by getting employee health plan participants to quit smoking, lose weight, and reduce hypertension and other risk factors that can lead to expensive illnesses. The ACA authorizes employers to reward workers who participate in wellness plans and penalize those who don’t.

But recent lawsuits filed by the EEOC have raised concerns about how far employers can go with their wellness plans.

The latest case, EEOC vs. Honeywell International Inc., was filed in federal district court in Minnesota on Oct. 27. In the case, the EEOC originally sought to enjoin Honeywell from implementing its wellness program, charging violations of both the ADA and GINA.

The ACA allows financial incentives for workers taking part in workplace wellness programs of up to 50% of their monthly premiums, deductibles and other costs.

Often wellness plan participants must fill out detailed health questionnaires, undergo medical screenings and in some cases attend weight-loss or smoking-cessation programs.

One of the arguments presented in the lawsuit against three employers is that requiring medical testing violates the ADA.

 

The Honeywell case

Starting in 2015, the biometric testing for Honeywell’s employees and their spouses will be part of a screening to help identify health risks. It will include checks for blood pressure, HDL and total cholesterol, non-fasting glucose levels, body mass index and waist circumference. Blood will also be screened to determine whether the employee or spouse smokes tobacco.

Employees will be penalized (or lose incentives) if they or their spouses do not take the biometric tests, including the blood draw. They would be subject to:

  • A $500 surcharge applied to the employee’s medical plan costs.
  • A $1,000 “tobacco surcharge,” even if the employee declines to participate in the biometric testing for reasons other than smoking (since, presumably, absence of tobacco can’t be verified).
  • An additional $1,000 “tobacco surcharge” if the employee’s covered spouse does not submit to the testing, even if the spouse declines to participate for reasons other than smoking.
  • Loss of health savings account contributions from Honeywell, which range up to $1,500 depending on the employee’s annual base wage and type of coverage.

 

Honeywell says its financial incentives fall within the range specified as allowable under the ACA.

The EEOC claims that Honeywell’s incentives violate the ADA because employees are penalized in order to induce them to go through medical examinations that are not job-related or consistent with business necessity.

Although there is an exception to this rule for “voluntary” health exams, the agency claims that these exams are not voluntary because Honeywell imposes a penalty on employees who decline to participate.

The EEOC also claims it violates the GINA.

Employers are concerned because biometric screenings and incentives to participate in screenings are typically key features of wellness plans.

Wellness programs with biometric screenings have become widespread, as are financial incentives to promote health participation in these screenings. Overall, among large U.S. employers that offer wellness programs, about three in four use incentives to engage employees in them – although not necessarily in health screenings – according to the nonprofit National Business Group on Health.

Employers have been seeking guidance from the EEOC for years regarding how the ADA and the GINA apply to wellness programs.

But to date, the EEOC hasn’t issued any guidance, which is leaving more employers concerned that their wellness plans may also be targeted in the future.

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