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Employment Law This Week - October 9, 2017: Extended Leave Not Covered Under ADA, Wellness Program Regulations, Proposed Cybersecurity Regulations, New Travel Restrictions

We invite you to view Employment Law This Week - a weekly rundown of the latest news in the field. We look at the latest trends, important court decisions, and new developments that could impact your work.

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.”

For more, click here

(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.

For more, click here

(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.”

©2017 Epstein Becker & Green, P.C. All rights reserved.

TRENDING LEGAL ANALYSIS


About this Author

George Carroll Whipple III, Epstein Becker Green, Workforce Management Lawyer, Hiring Matters Attorney
Member

GEORGE CARROLL WHIPPLE, III, is a Member of the Firm in the Employment, Labor, and Workforce Management practice, in the New York office of Epstein Becker Green. He hosts the firm's innovative weekly video program, Employment Law This Week.

Mr. Whipple:

  • Counsels employers on workplace issues, including hiring and promotion, firing and discipline, wage and hour, and the implementation of employment policies, to ensure compliance with federal and state laws

  • ...
212-351-3773
Joshua A. Stein, epstein becker green, ada, labor, employment, law, litigation
Member

JOSHUA A. STEIN is a Member of the Firm in the Labor and Employment practice and co-chairs the firm's ADA and Public Accommodations Group, in the New York office of Epstein Becker Green. Mr. Stein’s practice focuses on advising businesses on compliance with all aspects of the Americans with Disabilities Act (“ADA”), including the ADA Amendments Act of 2008, the 2010 ADA Standards for Accessible Design, and Sections 504 and 508 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), as well as the Family Medical Leave Act (“FMLA”). He represents clients from numerous industries, including sports and entertainment, retail, cruise line, hospitality and lodging, financial services, publishing, media, and health care.

Mr. Stein:

  • Counsels clients on employment law issues, including, but not limited to, ADA/FMLA compliance, accessibility of public accommodations and technology, leave laws, employee discipline, separation and discharge, and harassment
  • Defends employers in lawsuits brought in court alleging violations of all aspects of the ADA, the Rehabilitation Act, the FMLA, and/or equivalent state and local laws; employment discrimination; failure to accommodate or provide leave; lack of accessibility; employee discipline and discharge; breach of contract; unfair competition; fraud; defamation; age, race, sex, and national origin discrimination and harassment; tortious interference; and other employment issues
  • Represents clients facing charges at the New York City Commission on Human Rights, New York State Division of Human Rights, and U.S. Equal Employment Opportunity Commission, and in investigations commenced by government regulators, such as the U.S. Department of Justice and offices of State Attorney Generals
212-351-4660