ADA in the News April 2, 2019

Harrisburg restaurant, feds reach settlement over ADA compliance


A Harrisburg restaurant has settled a federal complaint that it was not accessible to the disabled. 

The complaint said The Millworks on Verbeke Street was not accessible to people in wheelchairs.

With cooperation from the owner, the U.S. Attorney's Office found architectural barriers and violations of the Americans with Disabilities Act.

Under the agreement, The Millworks will remove those barriers in the seating and restroom areas and pay a penalty of $6,000.

Employer settles claim it fired worker with esophagus disease after coughing fit

HR Dive

  • Mid South Extrusion Inc. will pay $70,000 to settle a U.S. Equal Employment Opportunity Commission (EEOC) lawsuit claiming it violated the Americans with Disabilities Act (ADA) by firing a worker because of his breathing problems (EEOC and Wyant v. Mid South Extrusion, Inc., No. 17-cv-01229 (W.D. La. March 22, 2019)).
  • The suit alleged that the Mid South employee, Jeffrey Wyant, experienced breathing problems at work and learned he had esophagus disease and reduced breathing capacity in his lungs. Wyant disclosed this information to an HR manager who, when told Wyant's doctor recommended he go on disability, allegedly emailed Wyant's supervisor and said it "automatically raised a red flag for her." A few weeks later, Wyant had a coughing fit while working and Mid South allegedly fired him shortly afterward, saying he lacked long-term commitment to the company.
  • "The law requires companies to make an individualized assessment of an employee's ability to perform the essential functions of his job, and not to rely on assumptions," an EEOC regional attorney, Rudy Sustaita, said in a statement.

Dive Insight:

As Sustaita pointed out, the ADA obligates employers to assess employees' abilities on a case-by-case basis and enable them to perform the essential functions of their jobs by providing reasonable accommodations, unless doing so would pose them undue hardship. While it's worth noting that employees aren't entitled to their preferred accommodation, employers need to be prepared to devote extra time to employees with disabilities to determine effective accommodations. According to the EEOC, reasonable accommodations can include:

Making existing facilities used by employees readily accessible to and usable by individuals with disabilities;

Job restructuring, modifying work schedules or reassignment to a vacant position; and

Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials or policies, and providing qualified readers or interpreters.

Employers that fail to provide such accommodations may find themselves facing expensive consequences. A former Dollar General cashier who had diabetes, for example, won a $700,000 jury verdict after the store fired her for violating policy by keeping and drinking orange juice at her station to resolve a medical emergency.

Of course, training plays a major role in preparing managers to handle requests for accommodations in ways that comply with the ADA. "This case highlights another employer who failed to train its employees on the reasonable accommodation requirements under the ADA," EEOC attorney Faye Williams said in a statement announcing the Dollar General verdict.

Physicians' Understanding of Disability Law Lacking


Many physicians may have an incorrect or only superficial understanding of their legal responsibilities for accommodating patients with disabilities, a population that's poised to grow with the aging of baby boomers, according to the authors of a newly published study.

In an article published online today in Health Affairs, Nicole D. Agaronnik, BS, a research assistant in the Mongan Institute Health Policy Center, Massachusetts General Hospital, Boston, and colleagues report on a qualitative study to determine how well physicians understand the mandates of laws such as the Americans With Disabilities Act (ADA).

They found that most physicians understand that they cannot refuse a patient because he or she has a disability, but they are not always clear on how to fulfill their responsibilities to these patients.

For example, of 20 physicians interviewed for the study, 16 believed that a practice cannot refuse a patient because of a disability. But three indicated that a practice may do so, and one was unsure.

All of the physicians seemed to broadly understand that charging a patient for accommodations is prohibited under the ADA, but they expressed this belief "with varying levels of certainty," according to Agaronnik and colleagues.

"Despite a common understanding that refusing a patient would be wrong and that practices should not impose accommodation costs upon patients, physicians voiced concern and frustration with the challenges of accommodating patients with disability, the additional time required to see these patients, and the lack of financial compensation for that additional time," Agaronnik and colleagues write.

In their article, the authors urge that physicians be better educated not only about their legal obligations but also about approaches they can use to accommodate disability. For example, many physicians are not aware of assistance available to them to better equip their clinics, Agaronnik and colleagues say. Such assistance includes tax incentives to offset the costs of acquiring equipment.

Physicians should keep the needs of people with disabilities in mind as they plan and renovate their offices, said senior author Lisa I. Iezzoni, MD, professor in the Department of Medicine, Harvard Medical School, who is based at the Mongan Institute Health Policy Center.

"They need to realize that the baby boomers are coming — with bad backs and bad knees," she told Medscape Medical News. "It will be easier for everybody" if practices were well equipped to meet their needs.

Disabilities are common in the United States. In an article published last year, the US Census Bureau estimated that in 2014, 27.2% of the people living in the United States — 85.3 million — had at least one disability. The majority of this group — 55.2 million people — had a severe disability.

In 2015, researchers at the Schaeffer Center for Health Policy and Economics, the University of Southern California (USC), reported that in the near future, people will be living longer with disabilities.

"The good news — life expectancy for people at age 65 will grow by almost a year from 19.3 years in 2010 to 20.1 years in 2030," the USC researchers say in their article. "The bad news — their expected years of life with a disability at age 65 will increase even more, rising from 7.4 years in 2010 to 8.6 years in 2030."

Billing and Reimbursement Common Issues

In the current study, Agaronnik and colleagues used telephone interviews to gauge physicians' knowledge about their obligations to patients with disabilities. Physicians were offered $100 for participation in the project; four of the interviewees refused this payment. Iezzoni conducted all of the interviews, which averaged 41 minutes in length.

Initially, the researchers intended to include in their survey 25 physicians practicing in Massachusetts. They sought representatives of five specialities in which patients frequently require some accommodation for disabilities: general internal medicine and family practice, rheumatology, orthopedics, neurology, and obstetrics/gynecology.

"We stopped recruitment after twenty interviews because we had reached data saturation — that is, no new qualitative information was emerging from the interviews," Agaronnik and colleagues write.

Several participants in the study suggested that insurers could help physicians by compensating them for the additional time needed to help patients with disabilities.

"An orthopedist urged 'recognizing how labor-intensive and resource-intensive it is at every level,' suggesting that this was essential to ensure that future providers would be willing to care for patients with disability," the authors write. "A general internist observed, 'Sometimes the E&M [evaluation and E&M] coding system doesn't always reflect the extra work that's involved.' "

Iezzoni said that for years, she's had an ongoing research interest in the healthcare experiences and outcomes of people with disabilities. One of the continuing concerns in this field is having the right equipment to perform examinations. In a 2013 editorial in the Annals of Internal Medicine, Iezzoni wrote: "If barbers found simple ways to lift and lower their customer eons ago, why haven't physicians done the same with patients and examination tables?"

Iezzoni said she knows of recent cases in which women with disabilities were not weighed while receiving prenatal care because they could not stand on the scale.

Iezzoni told Medscape Medical News about her own experience as someone who uses a wheelchair because of multiple sclerosis. An internist whom Iezzoni saw as a patient didn't have the needed equipment in her office.

"She would do breast exams with me sitting in my wheelchair," Iezzoni said. "That is not optimal."

The study was partially funded through the Executive Committee on Research, Massachusetts General Hospital, and by the Eunice Kennedy Shriver National Institute of Child Health and Human Development. The authors have disclosed no relevant financial relationships.

Health Aff. 2019;38:545–553. Abstract

Managing workers' medical restrictions: The 'alphabet soup' of statutes


Handling an employee’s medical or mental condition, especially one that requires a gap in working, is complicated and stressful for everyone involved, including the HR representative, well-meaning supervisors and the employee themselves. These incidents usually prompt responsibilities under the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), various workers’ compensation statutes, and multiple state laws. In actuality, it’s definitely possible that each of these laws will be in place, all at the same time. Depending on the circumstances, the Pregnancy Discrimination Act (PDA) could also bubble up in this statutory alphabet soup.

Federal credit unions are being targeted for alleged Americans with Disability Act violations


Since 2017, federal credit unions across the nation have been on the receiving end of a rush of lawsuits and complaints regarding an issue that many businesses aren’t even aware of: website accessibility in relation to the Americans with Disabilities Act (ADA). 

In fact, there have been so many of these complaints that the National Association of Federal Credit Unions (NAFCU) has named ADA website litigation as one of their top legislative and advocacy issues.

“Starting in about 2017, we’ve seen a wave of demand letters, mostly from one law firm in particular, arguing that credit unions had to comply with private standards on website accessibility,” says Carrie Hunt, the NAFCU’s executive vice president of government affairs and general counsel. “And while our credit unions absolutely believe in the ADA and making sure their services are available to disabled people, many of these lawsuits are not valid suits.”

Hut-Hut-Hike: The Second Circuit Tackles Hostile Work Environment Claims Under the ADA

JD Supra

In a case of first impression, the Second Circuit has held that hostile work environment claims are cognizable under the American with Disabilities Act (ADA).  In Fox v. Costco Wholesale Corporation, No.17‐0936‐CV (2d Cir. Mar. 6, 2019), the Second Circuit joined the Fourth, Fifth, Eighth, and Tenth Circuits to recognize this cause of action under the ADA.  The court also provided useful guidance on when teasing may or may not suffice to establish a hostile work environment.

Employer Which Helps People With Disabilities Get Jobs Fires Employee With a Disability: And Other Sad Tales from The Workplace


They seem to be increasing rapidly and feeding my obsession to report them.


That is, the EEOC’s seemingly insatiable targeting of health care providers for alleged violations of the Americans With Disabilities Act (“ADA”).

And why?

If you are a reader of this blog you know. But if not … I refer to this type of ADA case as the EEOC’s targeting “low hanging fruit.” And here’s my refrain:

“What is it,” I have asked repeatedly, “about health and medical care facilities that brings down the heavy hand of the EEOC so often, alleging ADA and pregnancy discrimination? Is it that the helping profession somehow has an innate bias against the disabled and against pregnant women, and discriminates more than other employers?”

Not likely.

“Or, could it be,” I’ve wondered, “that the EEOC sees such health care folks as fat, juicy targets — for example, accusing the helping profession, which is there to treat the sick, disabled and pregnant, of disability discrimination surely attracts the inevitable sanctimonious media attention. Alleging that doctors discriminate on the basis of disability against the very folks that they are there to minister is sure to bolster a somewhat battered EEOC image.” I have dubbed the EEOC’s targeting of such health care folks as their plucking “low hanging fruit” and “shooting fish in a barrel.”

Well, we now have one new lawsuit and one new settlement – each of which illustrates my theory about “low hanging fruit.”


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