- The ability to maintain consciousness can be an essential job function that need not be removed as a reasonable accommodation for an employee with a disability, the 5th U.S. Circuit Court of Appeals said (Clark v. Champion National Security, Inc., No. 18-11613 (5th Cir., Jan. 14, 2020)).
- Charles Clark, a personnel manager, was fired for allegedly sleeping on the job, in violation of his employer's "alertness policy." He sued, claiming that because the employer knew he had diabetes and went to the hospital following the incident, it should have granted a policy exception as an accommodation. A district court granted summary judgment for the employer and the 5th Circuit affirmed.
- In its ruling, the appeals court said Clark was not a qualified individual as defined by the Americans with Disabilities Act (ADA) because he couldn't meet an essential function of the job — maintaining consciousness — and therefore wasn't entitled to the law's protections. Clark also failed to identify any reasonable accommodation that would have allowed him to perform his job, it said, because his job duties required him to be awake.
The ADA protects qualified individuals with a disability from workplace discrimination and requires that employers provide reasonable accommodation that allow employees to perform the essential functions of their jobs. But, an employee who cannot perform an essential function, either with or without a reasonable accommodation, is not qualified for the job and cannot invoke the ADA's protections, according to the U.S. Equal Employment Opportunity Commission (EEOC).
Because courts often give deference to employers when deciding what constitutes an essential job function, written, up-to-date job descriptions that spell out what is essential and what is marginal are key, according to EEOC's guidance, The ADA: Your Responsibilities as an Employer.
In addition, federal law does not insulate an employee from discipline even if the improper behavior is arguably attributable to an impairment, the Clark court noted. Courts have "repeatedly approved of ADA-challenged discharges for falling asleep at work, particularly in safety-sensitive positions," it said. Employers remain free to take adverse employment actions as long as the decisions are based on legitimate, nondiscriminatory reasons, although experts urge HR to take extra precautions when protected activity is involved.
Last month, a putative class action lawsuit was filed in New York federal court against Charlotte’s Web, Inc., a Colorado-based maker of cannabidiol (“CBD”) oils, balms and gummies claiming that its website is not accessible to visually impaired shoppers, in violation of the Americans with Disabilities Act (“ADA”).
According to the complaint, plaintiff Joseph Guglielmo, who is visually impaired, visited Charlotte’s Web’s website several times in December 2019, where he had difficulty navigating the site because it was not coded such that it was compatible with his screen-reading software. As a result, Guglielmo claims he was effectively barred from determining what specific products were offered for sale.
The complaint further alleges that the company’s website does not meet the World Wide Web Consortium’s guidelines for blind and visually impaired website accessibility. Moreover, the complaint alleges that because websites are places of public accommodations under the ADA, the company’s alleged denial of equal access to its website and refusal to make changes to improve the accessibility of the website amounts to an ADA violation.
The suit seeks a court order requiring the company to modify its website to conform to the Web Content Accessibility Guidelines, hire a consultant to improve the accessibility of the website, and regularly monitor the site’s current state of accessibility.
Takeaway: This putative class action serves as an important reminder to all companies who maintain websites for promoting and selling their products that such websites should be free of accessibility barriers that could support a plaintiff asserting an ADA claim. Unless a website has been coded with accessibility in mind, cannabis companies and dispensaries appear to be among the disability rights bar’s next targets in the ever increasing number of class action lawsuits filed alleging digital access ADA violations.
California often sets the precedent by passing progressive policy, championing everything from climate change initiatives and health care policy to leading the country with fair accessibility laws.
But the Golden State has become a breeding ground for controversy, as it far outpaces the rest of the country in the number of cases filed for violations against the Americans with Disabilities Act, a landmark law passed in 1990 that granted the disabled community newfound access to public spaces and has since been hailed as a long-awaited civil rights act.
In 2018 alone, 10,163 cases were filed for violations against the law, according to a report from the high-profile law firm Seyfarth Shaw, an exponential uptick from five years before when there were only 2,722 cases.
The ADA’s enforcement in California tells two stories — it’s either working as intended to protect and uphold the rights of millions of disabled people, or it’s being used as a legal tactic against small businesses to financially suck them dry. What started out as a law meant to protect and ensure the rights of millions is now pitting disability rights groups against small businesses.
The North Dakota State University Student Health Athletic Complex, otherwise known as the SHAC, has gained attention after the U.S. Attorneys office found violations against the Americans with Disabilities Act (ADA) as reported by Valley News Live.