The court in Lin held thatmerely requesting an accommodation is insufficient to support a claim of retaliation under the plain language of the MHRA because such a request, standing alone, does not constitute opposition to a practice prohibited by the MHRA, nor does it constitute the filing of a complaint, testifying, assisting, or participating in any investigation, proceeding or hearing conducted under the MHRA.2020 WL 203145, at *1.The court’s holding in Lin deviated from well-established federal employment discrimination case law interpreting a similar provision of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12203(a), that provides that a mere request for an accommodation is a protected activity sufficient to support a retaliation claim. See, e.g., Solomon v. Vilsack, 763 F.3d 1, 15 n.6 (D.C. Cir. 2014) (collecting cases from the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits).

The Ninth Circuit affirmed this decision in 2014, holding "that the arbitration agreement was not binding as to Bayer."There followed a third EEOC charge and lawsuit in 2013 - the subject of this post. Mr. Bayer alleged that Neiman Marcus interfered with Bayer's ADA rights in violation of 42 U.S.C. § 12203(b) "by requiring him to consent to be bound by the arbitration agreement as a condition of his continued employment." The district court dismissed this third lawsuit on mootness grounds, because - following the Ninth Circuit's prior decision in Mr. Bayer's second case - the arbitration agreement was not binding on the plaintiff and thus there was no injury to remedy.

The Ninth Circuit joins the Seventh Circuit in holding that the ADA anti-retaliation section, 42 U.S.C. § 12203, provides only for equitable remedies and hence no jury trial.Alvarado v. Cajun Operating Co., No. 08-15549 (9th Cir. Dec. 11, 2009): Alvarado filed a retaliation claim under the Americans with Disabilities Act (ADA) alleging that the company fired him for complaining to his manager about disability discrimination. The district court held, granting a motion in limine prior to trial, that the remedy section governing ADA discrimination claims, 42 U.S.C. § 1981a(a)(2), did not encompass retaliation claims, and thus the employee could only seek equitable, make-whole relief (including back and front pay, but not compensatory or punitive damages).

y that would "not permit remote teaching to any high-risk faculty member for the Fall 2021 Semester no matter what the individual's circumstances were" and, for that reason, the professor was entitled to summary judgment on his failure to accommodate and interference claims. The Kutztown University decision sets forth some helpful principles for employers to follow to ensure that their good faith desire to have employees return to the workplace does not conflict with employee rights that may exist under federal law, including the Rehabilitation Act and the ADA. When drafting return to work policies, keep in mind the need to be flexible and to engage in an individualized assessment of all requests for exemptions or accommodations to the policy. Kutztown University reminds us that a one-size-fits all approach to a return-to-work policy will be subject to challenges. The ADA contains a similar provision prohibiting interference with qualified individuals' rights under that statute. See § 42 U.S.C. 12203(b) ("It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.").

reasoning to justify the incentive limit adopted, even though the limit was largely based on the ACA’s approach. As a result, the EEOC revised the regulations by removing the section permitting incentives, but leaving in place the remaining portions:An employee health program that includes disability-related inquiries or medical examinations (including disability-related inquiries or medical examinations that are part of a health risk assessment) is voluntary as long as a covered entity:(i) Does not require employees to participate;(ii) Does not deny coverage under any of its group health plans or particular benefits packages within a group health plan for non-participation, or limit the extent of benefits (except as allowed under paragraph (d)(3) of this section) for employees who do not participate;(iii) Does not take any adverse employment action or retaliate against, interfere with, coerce, intimidate, or threaten employees within the meaning of Section 503 of the ADA, codified at 42 U.S.C. 12203; and(iv) Provides employees with a notice that:(A) Is written so that the employee from whom medical information is being obtained is reasonably likely to understand it;(B) Describes the type of medical information that will be obtained and the specific purposes for which the medical information will be used; and(C) Describes the restrictions on the disclosure of the employee’s medical information, the employer representatives or other parties with whom the information will be shared, and the methods that the covered entity will use to ensure that medical information is not improperly disclosed (including whether it complies with the measures set forth in the HIPAA regulations codified at 45 CFR parts 160 and 164).29 CFR 1630.14(d)(2).

Americans with Disabilities Act (ADA)While the EEOC has still not taken a position as to whether COVID-19 constitutes a “disability” under the ADA, there are many individuals who because of an underlying condition may (for the foreseeable future) be designated as high risk for exposure. The ADA provides, “no person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by” the ADA. 42 U.S.C. § 12203(a).This has many implications for the future. High risk individuals – who may be working remotely now – may upon return-to-work, request to work from home as an accommodation.

Neither the law, nor the remaining regulations, expressly prohibit (or permit) incentives. The remaining regulations provide: An employee health program that includes disability-related inquiries or medical examinations (including disability-related inquiries or medical examinations that are part of a health risk assessment) is voluntary as long as a covered entity: (i) Does not require employees to participate; (ii)Does not deny coverage under any of its group health plans or particular benefits packages within a group health plan for non-participation, or limit the extent of benefits (except as allowed under paragraph (d)(3) of this section) for employees who do not participate; (iii) Does not take any adverse employment action or retaliate against, interfere with, coerce, intimidate, or threaten employees within the meaning of Section 503 of the ADA, codified at 42 U.S.C. 12203; and (iv)Provides employees with a notice that: (A) Is written so that the employee from whom medical information is being obtained is reasonably likely to understand it; (B) Describes the type of medical information that will be obtained and the specific purposes for which the medical information will be used; and (C) Describes the restrictions on the disclosure of the employee’s medical information, the employer representatives or other parties with whom the information will be shared, and the methods that the covered entity will use to ensure that medical information is not improperly disclosed (including whether it complies with the measures set forth in the HIPAA regulations codified at 45 CFR parts 160 and 164). 29 CFR 1630.14(c)(2).

The EEOC brought suit against Orion alleging it violated the ADA by requiring employees who elect to enroll in Orion’s self-insured health insurance plan to either complete the HRA or pay 100 percent of their monthly premium amount. The EEOC also alleged that Orion violated the ADA’s anti-retaliation provisions, 42 U.S.C. § 12203(a) and (b), by instructing the employee not to discuss her concerns about the legality of this requirement with co-workers and by terminating her employment shortly after she voiced opposition to Orion’s wellness program. Orion contended that its requirement that employees who elect to receive health insurance from Orion either participate in the wellness program or pay the full premium amount was lawful under the ADA’s insurance “safe harbor” provision, which allows self-insured organizations to administer benefits plans, or alternatively, that its wellness program is voluntary under 42 U.S.C. § 12112(d)(4)(B).

rams the 30 percent cost of coverage limit, which was set under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the ACA to limit the size of incentives under health-contingent programs. This would mean that an employer may offer employees incentives up to a maximum of 30 percent of the total cost of employee-only coverage, whether a reward or penalty, to promote an employee's participation in a wellness program.Definition of "Voluntary" The guidance also clarifies that "voluntary" means that an ADA-covered entity: "(1) does not require employees to participate; (2) does not deny coverage under any of its group health plans or particular benefits packages within a group health plan for non-participation or limit the extent of such coverage (except pursuant to allowed incentives); and (3) does not take any adverse employment action or retaliate against, interfere with, coerce, intimidate, or threaten employees within the meaning of Section 503 of the ADA, at 42 U.S.C. 12203."Privacy of Medical Information Further, to ensure that participation in a wellness program that includes disability-related inquiries or medical examinations and is a part of a group health plan is actually voluntary, employers must give participants written notice that clearly explains: what medical information will be obtained, who will receive the medical information, how the medical information will be used, the restrictions on its disclosure, and the methods the covered entity will employ to prevent improper disclosure of the medical information.

"While the Secretary argues (Br. 43) that Solomon's job involves 'tight, unpredictable, and firm deadlines,' Solomon answered with evidence that short deadlines are infrequent and, when they arise, can be met with a maxiflex schedule."The panel also reverses summary judgment on Ms. Solomon's retaliation claims, holding (among other things) that the act of requesting in good faith a reasonable accommodation is itself a protected activity under 42 U.S.C. § 12203, which is incorporated into the Rehabilitation Act, per 29 U.S.C. § 791(g).