Employment Law This Week - October 9, 2017: Extended Leave Not Covered Under ADA, Wellness Program Regulations, Proposed Cybersecurity Regulations, New Travel Restrictions
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This week’s stories include ...
(1) Seventh Circuit: Extended Leave Not Covered Under ADA
Our top story: Extended long-term leave is not covered under the Americans with Disabilities Act (ADA), the U.S. Court of Appeals for the Seventh Circuit says. An employee who had exhausted his Family and Medical Leave Act (FMLA) leave requested an additional two months off to recover from back surgery. Instead of granting the additional leave, the employer terminated his employment. The Seventh Circuit found that extending a long-term leave of absence beyond what is covered by the FMLA is not a reasonable accommodation under the ADA. This decision conflicts with the Equal Employment Opportunity Commission’s (EEOC’s) position, as well as rulings from the majority of other circuit courts. Josh Stein has more:
“Employers in the Seventh Circuit can certainly now be more aggressive in responding to employee requests for long-term extended leave. But those employers also need to be cognizant of two facts. One, the Severson decision did not say that any request for leave is automatically not a reasonable accommodation. Second, employers in the Seventh Circuit need to be very aware of local and state laws. They’re often more restrictive than federal laws, and this ruling was specifically under the American with Disabilities Act. Employers outside of the Seventh Circuit should continue to be aware of the EEOC’s guidance and the fact that the majority of circuit courts have continued to hold that leave can be a reasonable accommodation under the Americans with Disabilities Act.”
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(2) EEOC Issues Status Report on Wellness Program Regulations
In August, the D.C. Circuit remanded the current wellness program rules back to the EEOC for further consideration, leaving the rules in place. The court was not satisfied with the agency’s explanation as to why limiting the incentive to 30 percent of the cost of coverage rendered a program “voluntary” as opposed to “involuntary.” The EEOC has filed a status report with the court stating that the agency intends to issue a final rule by October 2019, with an effective date of early 2021. In response to this timeline, the AARP, which brought the suit, has urged the court to vacate the 2016 rules.
(3) Equifax Breach Prompts Cybersecurity Law in New York State
Calling the hack a "wakeup call," New York State Governor Andrew Cuomo announced proposed regulations. Every consumer reporting agency that assembles, evaluates, or maintains a credit report on New York consumers will be affected. Under the proposed rules, these agencies will be subject to the same cybersecurity standards as New York banks and other financial institutions. The agencies must have a written cybersecurity program in place by April 4, 2018. Failure to comply would mean that a company could no longer do business in the state.
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(4) New Travel Restrictions Announced
Following the expiration of his revised travel ban, President Trump issued a proclamation imposing new country-specific travel restrictions for foreign nationals. Unlike the previous ban, this proclamation directs the State Department to deny certain types of visas to particular applicants in each country. There are exceptions, including those who have bona fide relationships to a U.S. person or entity, diplomats, dual nationals, and previously admitted refugees.
(5) Tip of the Week
Nate Saint-Victor, Executive Director of Legal and Compliance for Morgan Stanley, discusses how important it is for lawyers to focus on diversity:
“I think it’s very important at the private law firms, but it’s also important in-house, and maybe arguably more important in-house, because the in-house clients, they’ve got a book of business, they have a lot of influence on the broader legal profession. They’re having conversations with and making decisions about where they’re going to allocate capital. And we have the ability to have those conversations with outside counsel to ensure that they’re committing, as we are, to diversity and inclusion. For example, with Morgan Stanley, our outside counsel policy clearly articulates a shared commitment on diversity and inclusion that’s expected with any law firm that’s working on our matters.”