#adaaa

Of All The Nerve: Wheelchairs, Sciatica, And Equality

I had never thought much about physical disabilities until the autumn of 2012, when an  airplane flight from Hell from Wichita, KS, to Denver – long horror story … please don’t ask! — squeezed me into a last-row seat of a tiny Embraer jet aircraft for four hours, resulting in a severely compressed sciatic nerve that basically crippled me for several months. At first, the painwas so intense that I…

Summers v. Altarum Institute, Corporation, No. 12-1645 (4th Cir. Jan. 23, 2014). Carl Summers’ job at Altarum Institute required that he travel to Maryland to serve one of Altarum’s clients. The client, the Defense Centers of Excellence for Psychological Health and Traumatic Brain Injury (“DCoE”), preferred that contractors work on site, but allowed them to work remotely if working hours in…

In the last ten years, we have seen the largest armed forces deployment since WWII. Soldiers have returned from Iraq, and thousands more are scheduled to return from Afghanistan over the course of 2013. It is expected that by the end of 2014, nearly 1.5 million will have returned from combat operations in those two countries alone. Many will apply for reemployment with physical or mental impairments that can oftentimes trigger a host of statutory obligations, varying from the Uniformed Services Employment and Reemployment Rights Act (USERRA) to the Americans with Disabilities Amendments Act (ADAAA).

  It is essential to reconsider the legal and practical ramifications for reintegrating them into your workplace. Effective reintegration calls for a commitment from upper management, with an focus on appropriate training and education for supervisors and managers alike.

  Any such program must start with a review of the legal obligations required by laws such as USERRA, which establishes rigid timetables for reemploying our returning reservists, veterans and other uniformed service members, along with the accommodation requirements imposed by the ADAAA. If you employ the spouse or close family relative of a returning veteran (as opposed to the veteran him or herself), the Family and Medical Leave Act (FMLA) may also apply.

It’s the Americans with Disabilities Act’s 23rd birthday today. On September 7, 1989, the Senate approved the Act in a 76-8 vote (though it took another ten months for the bill to be signed into law). 

To help celebrate, here’s a roundup of recent ADA-related legal updates:

On Employer-Mandated Psychological Counseling:

Psychological Counseling Is a Medical Examination under the ADA, Rules the Sixth Circuit (Ballard Spahr LLP):

“In a case of first impression, the U.S. Court of Appeals for the Sixth Circuit vacated a federal district court’s judgment and concluded that psychological counseling constitutes a medical examination under the Americans with Disabilities Act (ADA).” Read on>>

Counseling May Be a “Medical Examination” Under the ADA (Franczek Radelet P.C.):

“This question is important because the ADA prohibits employers from requiring employees to undergo medical examinations unless they are ‘job related’ and consistent with ‘business necessity.’ In this case, the Court concluded by a split vote that the required counseling was a medical examination.’ Read on>>

Psychological Counseling May Constitute a Medical Examination Under the ADA (Mintz Levin):

“All individuals - whether disabled or not - have a private right to sue under the provision of the ADA prohibiting medical examinations.  Employers must take care, therefore, and be mindful of the ADA's job-relatedness and business necessity requirements when demanding, or even recommending, that an employee take part in any type of medical inquiry, psychological counseling, or examination.” Read on>>

Counseling as an ADA-Protected Medical Examination (Jon Hyman):

“Thus, if counseling qualifies as a covered medical exam, then employers … will have to rely on the statute’s defense of job-relatedness and business necessity if an employee needs counseling.” Read on>>

On Obesity as a Disability:

Expanding Waistlines, Expanding Definitions: Obesity as a Disability? (Spilman Thomas & Battle, PLLC):

“Since the 2008 Amendment to the Americans with Disabilities Act (‘ADA’), the Equal Employment Opportunity Commission (‘EEOC’) and courts have expanded the legal definition of when obesity constitutes a ‘disability;’ employees no longer have to establish that a physiological disorder caused their obesity – now obesity alone can be an impairment sufficient to categorize an employee as disabled.” Read on>>

Montana Obesity Ruling May Be Cause For Concern (Fisher & Phillips LLP):

“The Americans with Disabilities Amendments Act (ADAAA) did not change the definition of impairment but it may have changed the EEOC's view on whether obesity is an impairment… Before the ADAAA passed, the EEOC took the position that severe or morbid obesity was an impairment but that obesity rarely is. The EEOC subsequently removed the language that obesity is rarely an impairment from the 2011 version of its Compliance Manual.” Read on>>

Morbid Obesity as a Covered Disability under the ADA (Mintz Levin):

“Almost two years ago, we wrote that the EEOC had filed its first-ever lawsuit asserting that ‘severe’ obesity was a protectable disability under the ADA.   That case … provided little guidance to employers about where the EEOC would draw the line on when obesity is ‘severe’ enough to constitute an ADA-protected disability.  Although it is still unclear where that line is, it is now clear that the EEOC considers ‘morbid’ obesity to be a protectable disability under the ADA.” Read on>>

Weighing The Risks Of Not Hiring Obese Applicants (Fisher & Phillips LLP):

“That means a blanket policy barring all morbidly obese applicants from consideration could easily violate the law with respect to at least some jobs. For example, even though no accommodation might be available to enable an obese maintenance worker to perform all the essential functions of a job, reasonable accommodations may permit a telephone or computer operator to do so. Failure to consider this and offer such accommodation requested by an eligible employee or applicant would violate the ADA.” Read on>>

On Other Workplace Accommodations:

An "Indefinite Reprieve" of Essential Functions of Job Not a Reasonable Accommodation under the ADA (Franczek Radelet P.C.):

“In light of the EEOC's litigation over automatic termination provisions under the ADA, employers generally feel as though they have no clue as to their legal obligations when it comes to providing a leave of absence as a reasonable accommodation under the ADA after an employee's 12 weeks of FMLA leave has been exhausted.” Read on>>

“’Sitting Down On The Job’ – And Not Just In California (Fisher & Phillips LLP):

“Under the Americans with Disabilities Act (ADA), employers are required to provide reasonable accommodation when necessary to allow an individual to perform essential job duties. Individuals have claimed in some cases that it would be a reasonable accommodation for a retail store to allow cashiers or other store employees to periodically sit down. Courts have been receptive to such claims, particularly when it appears that such requests are reasonable.” Read on>>

Waiting Period Deleted From Bill Aimed At Predatory ADA Litigation Practices (Robert Freedman):

“A requirement to wait 30 days before filing lawsuits for construction-related accessibility claims under the Americans with Disabilities Act has been deleted from the latest version of a bill (SB 1186) winding its way through the California legislature. It’s worth noting that the latest version of SB 1186 will prohibit money demands for construction-related disability claims prior to filing a complaint.” Read on>>

Employers Must Consider Telecommuting as ADA Accommodation (Lawyers.com):

“Employers are not mandated to allow their employees to telecommute, but they must as least consider the possibility for people with disabilities that prevent them from interacting in a standard workplace, according to a ruling by a federal court in Ohio.” Read on>>

Eau, De Humanity! Better Watch Those Fragrances If They Make Your Employee Sick (Constangy, Brooks & Smith, LLP):

“This issue has been coming up a lot lately: What should an employer do when an employee claims that her co-workers' fragrances make her sick? … Allow me to specify what I mean by ‘sick.’ What I mean is ADA-disabled sick. The scent brings on attacks of asthma, or COPD, or whatever. In other words, more than an odor that the employee finds unpleasant or oppressive.” Read on>>

Airline Management Newsletter (FordHarrison):

A federal trial court in Minnesota recently granted summary judgment in favor of Northwest Airlines on an employee's discrimination claim under the Americans with Disabilities Act (ADA), holding that the airline did not regard the employee as disabled… The court held that the fact that Northwest required the employee to undergo an accommodation assessment when he switched bases did not establish that the airline regarded him as disabled.” Read on>>

EEOC Challenges TB Testing Practices (Fisher & Phillips LLP):

“The EEOC contended that the company violated the ADA by not allowing an employee to work after she tested positive during a preliminary TB screening. Specifically, the Commission alleged that the company discriminated by regarding the employee as disabled, even though she was purportedly not contagious and posed no direct health risk to those around her.” Read on>>

Seventh Circuit Upholds Jury Verdict in Favor of Teacher with Seasonal Affective Disorder (Franczek Radelet P.C.):

“… the U.S. Court of Appeals for the Seventh Circuit upheld a jury verdict finding in favor of a teacher with seasonal affective disorder claiming a Wisconsin school district violated her rights under the Americans with Disabilities Act (ADA). The teacher claimed that the school district failed to accommodate her disability when it denied her repeated requests to relocate her class to a different classroom with exterior windows.”  Read on>>

On Public Accommodations:

Disneyland Unable to Prevent ADA Plaintiff from Using Segway Unless It Proves Segways Can’t Be Operated Safely in Its Parks (Low, Ball & Lynch):

“Plaintiff Tina Baughman suffers from limb girdle muscular dystrophy, which makes it difficult for her to walk or stand from a seated position. In association with her eighth birthday, she wanted to visit Disneyland. She contacted Disney and requested permission to use a Segway due to her physical limitations. Disney’s policy is to allow wheelchairs and motorized scooters, but not two-wheeled vehicles or devices, like Segways. Disney refused to make an exception for the plaintiff.” Read on>>

Don't Be A Title III ADA "Test Case." Here's How To Fight Back (Constangy, Brooks & Smith, LLP):

Since September 2011, approximately 40 cases have been filed in North Carolina under Title III of the Americans with Disabilities Act (the ‘public accommodation’ section). Most of these are ‘tester’ cases brought by one woman, Denise Payne, and the Ft. Lauderdale, Florida-based National Alliance For Accessibility, Inc… Public accommodations -- which include hotels, restaurants, shopping malls, and retail stores -- are prohibited from discriminating against individuals with disabilities and must be designed, built, and altered in compliance with standards set forth in the ADA Title III Technical Assistance Manual.” Read on>>

Internet Business Activities—Are They Now the Bull's-Eye for ADA Public Accommodation Lawsuits? (Epstein Becker & Green, P.C.):

“Two recent decisions involving Netflix again raise the question of whether all online business activities are covered by the public accommodation requirements of Title III of the Americans with Disabilities Act (‘ADA’) or whether a ‘bricks and mortar’ presence is required to invoke ADA protections.” Read on>>

Second Federal Court Tackles Absence of Closed Captions in Netflix Web-Streaming (Davis Wright Tremaine LLP): 

“In the wake of a federal district court in Massachusetts rejecting arguments by Netflix that its ‘Watch Instantly’ streaming website is not a ‘place of public accommodation’ under the Americans with Disabilities Act (ADA), a federal court in California reached the opposite conclusion. In Cullen v. Netflix, the United States District Court for Northern District of California ruled that ‘places of public accommodation’ under the ADA are limited to ‘actual physical places’ and dismissed allegations that Netflix, in failing to caption streamed video, had violated state and federal disabilities and other laws.” Read on>>

First ATM Accessibility Class Action Lawsuit, Pursuant to the Americans with Disabilities Act, Is Filed in Philadelphia (Duane Morris LLP):

“The first of what is likely to be many ATM accessibility class action lawsuits, pursuant to the Americans with Disabilities Act (ADA), against Philadelphia-area banks was filed in federal district court in Philadelphia this week… [Plaintiff Darryl] Garner's complaint specifically quotes a March 2012 Wall Street Journal article that maintains that nearly 50 percent of the more than 400,000 ATMs in the United States are inaccessible to the visually impaired, despite the fact that new standards pertaining to accessibility to ATMs for the visually impaired took effect on March 15, 2011, and all ATMs were required to be upgraded to meet these new requirements by March 15, 2012.” Read on>>

DOJ Announces New Barrier-Free Health Care Initiative Targeting Disability Discrimination (King & Spalding):

“… the U.S. Department of Justice (DOJ) Civil Rights Division, in partnership with United States Attorneys’ offices nationwide, introduced the ‘Barrier-Free Health Care Initiative.’ This initiative seeks to enforce the Americans with Disabilities Act (ADA) within the healthcare industry. The initial focus of this multi-phase plan is to ensure that people who are deaf or hard of hearing have access to medical information and that such information is presented in a manner understandable to them. Another goal of the initiative is enforcement of ADA rules regarding physical access to medical facilities.” Read on>>

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Also see: 

• EEOC's "Emerging Issues": LGBT Rights, And Accommodations For Pregnant Women - Constangy, Brooks & Smith, LLP 

• Employee Fired for Having Breast Cancer - Lawyers.com 

• Appellate Court Finds Connecticut Fair Employment Practices Act Does Not Prohibit Employers from Discriminating Against Employees Perceived as Physically Disabled, if They Are Not Disabled – Littler 

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