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Employee Well-Being: What Can and Can't Employers Ask?

Level: Advanced
Runtime: 92 minutes
Recorded Date: October 15, 2019
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  • Relevant Statutory Provisions, Regulations, and Guidance
  • Limitations on Disability-Related Inquiries and Medical Exams
  • Psychological Tests
  • Pre-Offer & Post-Offer Inquiries
  • Medically-Related Follow-Up Exams
  • Related Cases
  • Direct Threat Factors
  • Rescission of Incentives Provisions in ADA and GINA Rules on Employer Wellness Programs
  • Employee Assistance Programs (EAP)
  • Confidentiality
  • Hypotheticals
Runtime: 1 hour 32 minutes
Recorded: October 15, 2019


This program will review the ADA's rules governing disability-related inquiries and medical examinations of employees. Using several scenarios that encompass challenging situations, faculty will explain how the rules apply.
Scenarios include:
1. An employer sees that a usually reliable employee's performance has been declining and thinks that health problems might be the reason. May the employee's supervisor ask the employee what is wrong, or require the employee to take a medical examination?
2. Several co-workers have reported that an employee has been behaving unusually and say they feel "unsafe" when the employee is around. What can the employer do to assess possible safety risks?
3. An employee has recently been diagnosed with cancer and thinks she may need some time off for treatment and then a schedule change so that she can gradually return to work as she undergoes chemotherapy and radiation treatment, but worries about how much medical information she will have to give her employer and whether the information will be kept confidential.
4. An employer wants to develop a wellness program in the hope of improving employee health and reducing its health insurance costs. Can the employer ask employees to complete a health risk assessment and biometric screening to determine things like weight, blood pressure, cholesterol, or blood glucose levels? What about scales to measure depression, anxiety, burnout, resilience, emotional intelligence, or personality characteristics?

This program was recorded on October 15th, 2019.

Provided By

American Bar Association
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David M. Wachtel

Trister, Ross, Schadler & Gold PLLC

David Wachtel has practiced employment law for individual employees in Washington, D.C. since 1993. Recently, he has been selected by colleagues as a member of the College of Labor and Employment Lawyers and by Law Dragon as one of the Top 500 Plaintiff's Employment Lawyers in the country. Reviews from over two dozen past clients are available on the AVVO site.

Dave's work includes trial court and administrative litigation, arbitration, and mediation. He has successfully represented employees with claims of race, sex, age, and disability discrimination, sexual harassment, violation of civil service rights, interference with FMLA rights, and retaliation on the basis of whistleblower activity in the nuclear, aviation, defense, and finance industries.

Dave offers individuals suffering job loss or workplace harassment individual attention, lean, versatile strategies, and a calming influence on (almost) every stressful situation.

Since joining Trister, Ross in February 2016, Dave has broadened his practice to advise dozens of non-profit organizations on all manner of employment law policy and compliance questions. He offers organizations an especially informed and experienced understanding of employment policy and how to achieve resolution of workplace disputes.

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Barbara L. Johnson

Paul Hastings LLP

Barbara L. Johnson is a partner in the Employment Law practice of Paul Hastings and is based in the firm's Washington, D.C. office.

Ms. Johnson is a nationally known employment jury trial and class action lawyer representing employers. She regularly tries cases in various state and federal courts involving wage and hour issues, race, age, gender and disability discrimination, retaliation, breach of contract, and various employment torts.

Ms. Johnson has tried more than 30 employment law cases. She provides employment law advice, handles administrative matters before state and federal agencies, and conducts investigations into all types of workplace matters.

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Christopher Kuczynski

Assistant Legal Counsel and Director of the Americans With Disabilities Act Policy Division

Christopher J. Kuczynski is Assistant Legal Counsel and Director of the ADA/GINA Policy Division at the U.S. Equal Employment Opportunity Commission. In this position, he supervises the development of regulations and policy guidance interpreting Title I of the ADA and Title II of the Genetic Information Nondiscrimination Act.

Since assuming the position of Assistant Legal Counsel in February 1997, Kuczynski has made hundreds of presentations on the ADA, and more recently on GINA, to a variety of audiences – from human resources professionals and EEO counselors in the public and private sectors, to plaintiff and defense counsel.

From October 2003 until April 2004, Kuczynski was Associate Director for the White House Domestic Policy Council. Kuczynski also served from January to October 2003 as Special Assistant to former EEOC Chair Cari Dominguez. Before coming to the EEOC, he worked as a trial attorney for the Civil Rights Division of the U.S. Department of Justice. Before that, he worked for three years as a litigation associate with a major Philadelphia law firm.

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