ADA in the News: August 25, 2017

ADA​: No requirement to create brand-new job

Business Management Daily

Disabled employees may be entitled to transfer to an existing and open position, but they have no right under the ADA or the Rehabilitation Act to demand a job be created specifically as an accommodation.

Recent case: Bridgett worked in HR at a regional U.S. Postal Service location. She took several FMLA leaves after injuring her foot and having multiple operations over the years to repair the damage.

She asked to be transferred to a different location, apparently as a reasonable accommodation for her foot. But at the time, that facility was undergoing renovations. There was no office space into which she could have been placed. Plus, there were no openings available.

Bridgett eventually filled several different positions at her location, each in HR and each at the same pay as before.

Bridgett sued, alleging failure to accommodate her transfer request.

But the court tossed out her lawsuit, noting that she had not identified an open position that she was qualified to perform. She had instead simply demanded that her employer create one at a specific location. That’s not required. (Cross v. Post Master General, 3rd Cir., 2017)

Final note: Bridgett also demanded “training opportunities” but never specified which ones she had allegedly been denied. Instead, she testified that she had “put the requests out there as a general statement,” and “wasn’t asking for anything” specific. That wasn’t good enough.

Employees who claim they have been denied training opportunities only have a case if they can point to specific training they requested and then can show they were turned down—and that this somehow harmed their ability to earn more, get better benefits or qualify for promotions. A general statement that a worker wants more training isn’t enough.

What to Know About Mass Transit Accessibility for People With Disabilities

NBC New York

From broken elevators to inaudible announcements, people with disabilities have a unique set of mass transit challenges.

Below is a transcript of an ADA-focused episode of News 4 New York's podcast "Listen While You Wait," which is hosted by Michael Gargiulo and focuses on mass transit issues in the region.  

This week's episode focuses on mass transit accessibility for those who are disabled. We have provided this transcript of the episode so that everyone can access the information. 

The $1.8M question: Is firing a worker for a failed prescription drug test illegal?

Companies are well within their rights to enforce drug policies that prohibit employees from working under the influence of drugs that impact performance and safety, even if the substances are legally prescribed prescription drugs. But there is a gray area to the law employers must keep in mind.

That gray area involves the intersection of the ADA’s reasonable accommodation process with a company’s drug policy. And a recent lawsuit highlighted how strictly following a policy without first considering the ADA’s implications can come back to haunt a company in a big way.

United States: New York Courts Rule That Websites Must Be Accessible To The Disabled

Mondaq News Alerts

Two New York federal courts have ruled that websites that offer goods and services to the public are "places of public accommodation" and are thus subject to the Americans With Disabilities Act (ADA) and must be made accessible to the disabled, including the visually impaired.

Which Websites Are Covered By The ADA?

Any website that sells goods or services online or any website that offers any form of 'interaction' with a customer, such as, a 'store locator' or the ability to sign up for news or promotions, is covered by the ADA. These websites must be made useable by disabled users, which means that website providers are required to take steps to reasonably accommodate disabled users as long as doing so would not impose an undue hardship on the business or fundamentally alter the website. According to these rulings, for a website to comply with the ADA, the disabled must be given "full and equal enjoyment" of the goods, services, privileges, advantages, facilities or accommodations of a website.

What Accommodations Are Required By The ADA?

Although the two most recent New York federal court decisions did not rule on what specific accommodations are required to provide access to the visually impaired, courts have suggested that there are steps businesses can take to make their websites accessible, such as following the Web Content Accessibility Guidelines ("WCAG"). For example, the WCAG suggest the use of technology to allow visually impaired individuals to use webpages with screen reader and similar software. As with all analyses of an accommodation under the ADA, the suggested or requested accommodation must be "reasonable" and not too burdensome on the business or a fundamental alteration of the website. Whether such an accommodation is reasonable depends on a fact-specific analysis of the scope and size of the business's goods, services, accommodations and resources and the specific accommodation being requested (if a request has been made).

Key Takeaways Regarding Web Accessibility

In light of these decisions, businesses that provide interactive websites or goods or services on websites should review their websites with respect to accessibility for the disabled. Businesses should particularly explore access options for the visually impaired and review the WCAG.

AARP's Wellness Win Against The EEOC: The “Law Nerd” Version

JD Supra

As I reported Tuesday, a federal judge has ruled that the wellness regulations issued by the Equal Employment Opportunity Commission are invalid. Judge John D. Bates of the District of Columbia did not vacate the rules but remanded them to the EEOC to address the rules’ “failings.” Now that I’ve had a chance to read the decision, I wanted to provide some analysis.

In May 2016, the EEOC issued final rules on wellness programs and the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. The ADA rule applies to requests for health information from employees. The GINA rule applies to requests for health information from employees’ family members. The rules took effect in July 2016, but applied only to plans dated January 1, 2017, or later.

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