ADA in the News: August 30, 2017

Settlement Agreement: Peter Pan Bus Lines

EEOC Disability Discrimination Suit Against UPS Settled for $2 Million

JD Supra

On August 8, 2017, the U.S. Equal Employment Opportunity Commission (EEOC) issued a press release announcing that its lawsuit against United Parcel Service, Inc. (UPS), alleging disability discrimination claims under the Americans with Disabilities Act (ADA), has been settled for $2 million dollars. In that suit, the EEOC alleged that UPS maintained an “inflexible leave policy” by which disabled employees were automatically discharged if they were unable to return to work after exhausting the maximum 12 months of leave provided by the policy. Thus, according to the EEOC, UPS’ policy effectively shut down the interactive process required by the ADA to determine whether additional reasonable accommodations were available to such persons. 

Are Head Lice a Disability? Navigating the Americans with Disabilities Act

Lexology

What if you had an employee who kept coming to work with head lice? What should you do? Employment lawyers get all kinds of questions about the Americans with Disabilities Act—and some of these can give you a serious case of the heebie-jeebies. Here is a short tutorial on the basics of navigating this important law, seen through the lens of that bane of parents everywhere: the louse.

EEOC Sues Illinois Action for Children for Disability Discrimination

Illinois Action for Children fired an employee who was on leave receiving treatment for breast cancer rather than granting her request for additional leave for more treatment, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit. 

Such alleged conduct violates under the Americans with Disabilities Act (ADA), which prohibits disability discrimination in employment. The EEOC brought the suit (EEOC v. Illinois Action for Children, Civil Action No. 17-cv-6224) in U.S. District Court for the Northern District of Illinois, Eastern Division on Aug. 28, after first attempting to reach a pre-litigation settlement through its conciliation process. The case has been assigned to U.S. District Judge Rebecca R. Pallmeyer.

When medical leave runs out, don't forget the ADA, feds say

HR Dive

Dive Brief:

  • The U.S. Equal Employment Opportunity Commission (EEOC) on August 28 filed a lawsuit against Illinois Action for Children, alleging that it failed to accommodate an employee undergoing treatment for breast cancer, in violation of the Americans with Disabilities Act (ADA).
  • The employee requested leave beginning in June 2015 and ending in November 2015, according to the complaint. The employer approved leave through September and fired her when she was unable to return to work at that time.
  • The suit seeks back pay, front pay and punitive damages. "[E]mployers have a duty to provide reasonable accommodations to people with disabilities that enable them to perform the essential functions of their job," said Greg Gochanour, an EEOC regional attorney, in a press release. "EEOC guidance states that an employer may have to accommodate an employee who is unable to work while she is undergoing chemotherapy or other treatments."

​Dive Insight:

  • The EEOC's suit doesn't say why the employer granted the employee about three months of leave while denying her request for the other months, but it's a situation that often arises when an employee takes Family and Medical Leave Act (FMLA) leave, for example. Employers sometimes assume that workers are limited to the 12 weeks of job protection afforded under that law.
  • The ADA, however, requires employers to provide accommodations to workers with disabilities. It is well-settled that leave can be a reasonable accommodation under that law, and there are no statutory or regulatory limits to that leave; instead, employers have to evaluate, on a case-by-case basis, what amount is "reasonable" for a given position or workplace.

ADA Discrimination Case Against JetBlue Tossed, Again

New York Law Journal

Though it had been revived on appeal, a former JetBlue employee again saw her Americans with Disabilities Act suit dismissed in the U.S. District Court for the Southern District of New York this week.

Shari Dooley's claims against the airline were previously reinstated by the U.S. Court of Appeals for the Second Circuit. But U.S. District Judge Jesse Furman found that, despite new appellate precedent on employment discrimination, Dooley's allegations still failed to hold up, and JetBlue's summary judgment motion was granted.

EEOC sues Chicago childcare agency for firing employee with cancer

Reuters

The Equal Employment Opportunity Commission has sued a Chicago childcare resources agency for allegedly firing an employee who was on leave for breast cancer surgery rather than provide her with more time off for additional treatment.

In a lawsuit filed in federal court in Chicago on Monday, the EEOC accused Illinois Action for Children of violating the Americans with Disabilities Act by denying Myrnie Brown a reasonable accommodation and terminating her in 2015.

Court's Ruling Requiring The EEOC To Reconsider Its “Wellness” Regulations Is Not Necessarily A Good Thing For Employers

JD Supra

The ruling in the AARP v. EEOC case may be detrimental to employers and their healthcare plans because the EEOC may either reduce the percentage of its allowable inducement (or penalty) below 30% the employee cost for participation in any employer-sponsored “wellness” program to be considered voluntary or even return to its former position that any reward or penalty renders participation involuntary.

The Americans with Disabilities Act (ADA) permits an employer to conduct voluntary medical examinations including voluntary medical histories, including health risk assessments, as part of an employee health program. The Genetic Information Nondiscrimination Act (GINA) also permits the voluntary collection of genetic information. Prior to May 2016 when the EEOC issued its “wellness regulations,” the EEOC’s position was that the ADA also prohibited penalizing or rewarding any employee for completing a health risk assessment that sought medical or disability-related inquiries or participating in any health insurance program, such as a “wellness” program, on the grounds that the reward for doing so rendered participation involuntary. On May 16, 2016 when the EEOC passed its “wellness” regulations, the EEOC concluded that the ADA would not be violated if any incentive or penalty for participation in a “wellness” program was valued at 30% of the employee-cost of plan participation or less. We addressed the EEOC’s 2016 regulations in this blog post.

Labor Law: Myths busted under the American with Disabilities Act

Richmond.com

The Americans with Disabilities Act  requires that employers with 15 or more employees provide reasonable accommodations to employees with a disability.

Employers frequently are faced with requests for accommodations, and may rely upon myths, instead of law, in making decisions.

Employee Requests for Medical Leave: Self-Storage Owner Rights and Obligations

Inside Self-Storage

Imagine the following scenario: The manager of one of your self-storage properties, Joe, tells you he’s been diagnosed with cancer. The good news is that it’s likely treatable with chemotherapy and surgery. The bad news is he needs time off for treatment, and his doctors don’t know exactly how long he’ll be unable to work. They estimate he’ll need approximately two months.

You’re sympathetic. However, he’s only been employed with your company for five months and has already used all his paid time off (PTO). Do you have to grant his request for leave, even though he can’t tell you precisely how long he’ll be out? If you allow him to take leave, do you have to pay him? If so, how much?

Let’s add a layer and say Joe isn’t an effective property manager. You were thinking about replacing him before you learned about his illness. Can you still fire him?

The answer to these commonly asked questions is, “It depends.” Several laws come into play when employees seek medical leave. The following is a summary of what employers must consider when evaluating these requests.

https://d.adroll.com/cm/aol/out

Lo​cal man shares fight for disabled patients' rights in hospital settlement

KOMO News

The man who won a big victory for all disabled people is sharing his concerns over Highline Hospital, and how he believes the medical facility failed to give him the same access to health care that it gives to other patients.

Dogged by Dogs at Work: Barking Up the Wrong Tree?

Lexology

For employers that are covered under Title II or Title III of the ADA, the key to reducing the risk of liability is properly training employees on how to address customers with service animals. Finally, be aware that state or local laws may grant other protections.

HR issues that arise when natural disasters hit

Lexology

Natural disasters, like Hurricane Harvey, raise a host of issues for employers, regardless of whether these employers have a direct presence in the affected areas or whether they have employees residing in or telecommuting from them. Sometimes employers are forced to close or are able to remain open in some capacity, but employees are not able to travel to work or need to attend to emergent matters during or in the aftermath of these types of events.

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