ADA in the News: February 3, 2017

Settlement Agreement: Mountain States Health Alliance

HCA, Owner of 100+ Hospitals, Sued for 'Inaccessible' Websites Violating ADA

Lexology

An established plaintiff disability law firm, Carlson Lynch, has sued HCA Holdings in federal court, alleging that websites operated by over 100 hospitals and health care facilities owned by HCA are not accessible to blind individuals and therefore violate Title III of the Americans with Disabilities Act. Click here to view a full copy of the Complaint, Frazier v. HCA Holdings, Inc., filed 1/25/17.

The Carlson Lynch firm has brought similar claims against dozens other businesses, including Omni Hotels, Chick-fil-A, PetSmart, Party City, GNC, Burberry, Guitar Center and Foot Locker.

Indeed, the Carlson Lynch firm was featured prominently in a November, 2016 article in The Wall Street Journal, detailing the dramatic rise of lawsuits by a handful of active plaintiff firms, alleging that non-accessible websites – websites that do not inter-operate well with assistive technology used by disabled persons such as screen readers – constitute illegal discrimination against disabled individuals in violation of Title III of the ADA.

Supreme Court Nominee Has Put “Reasonable” into Reasonable Accommodation Obligations

Lexology

In case your news and twitter accounts are down, and you otherwise have not heard the news… President Trump has nominated Judge Gorsuch from the U.S. Court of Appeals for the Tenth Circuit to fill Justice Antonin Scalia’s vacant Supreme Court seat. There are surely countless articles about his nomination hitting the airwaves even as I type this, but for employers who struggle with leave management issues, a quick review of the Hwang v. Kansas State University decision, authored by Judge Gorsuch, may provide employers with hope that leave management law could move in the right direction. In Hwang, the Tenth Circuit determined that a more than a six month leave of absence was an unreasonable accommodation. Some of the more memorable quotes from that decision include:

“Must an employer allow employees more than six months’ sick leave or face liability under the Rehabilitation Act? Unsurprisingly, the answer is almost always no.”

Diabetes Not A Disability under the ADA?

Lexology

On 1/30/17, a federal judge granted summary judgment to an employer on an ADA discrimination claim on the ground, among others, that the employee’s diabetes was not a disability under the ADA. The court reasoned that the employee had not produced evidence that the diabetes substantially limited him with regard to any major life activities. The case is Sanders v. Bemis Company, Inc. (E.D. Kentucky 1/30/17). The court noted that a number of other federal circuit courts have reached the same conclusion, and that in these cases “diabetes ordinarily fails to rise to the level of a disability under the ADA,” particularly where the diabetes only requires an employee to inject insulin daily, wear a pump and monitor blood sugar and make modest dietary and lifestyle changes. 

EEOC targets Walmart for alleged violations of Americans with Disabilities Act

Legal News Line

The U.S. Equal Employment Opportunity Commission (EEOC) announced a lawsuit Jan. 18 against Walmart, alleging violation of federal laws by failing to accommodate and firing a longtime employee due to her disability.

“Even the nation's largest private employer must comply with the law's requirement to make a good faith effort to accommodate an employee with a disability," said Julianne Bowman, director of the Chicago District.

Marlo Spaeth, who has Down's syndrome, was purportedly disciplined for absenteeism after she could not adapt to a new work schedule that overrode her previous 15-year-long schedule. A new computerized scheduling system replaced her usual noon to 4 p.m. shift with longer and later shifts. Spaeth repeatedly requested for the change to be canceled but her managers allegedly ignored her. Spaeth was eventually fired.

"Walmart's refusal to accommodate such a simple scheduling request is not only a violation of the ADA, it's also an example of how easily a successful 15-year career can be harmed by disability discrimination,” said Gregory Gochanour, regional attorney for the Chicago District. “EEOC will continue to fight ADA violations and uphold the rights of people with disabilities."

N​urse accuses nursing home provider of disability discrimination

Southeast Texas Record

A licensed vocational nurse from Huntsville is suing a nursing home provider, alleging disability discrimination.

Shavetta Linton filed a complaint July 19 in the Houston Division of the Southern District of Texas against Daybreak Venture LLC, alleging failure to uphold Americans with Disabilities Act regulations.

According to the complaint, Linton, who worked as a registered nurse for Willis Nursing and Rehabilitation from September 2010 to June 2014  was subjected to disability discrimination, disparate treatment and termination from employment. The plaintiff alleges Daybreak Venture's nursing home administrator continually harassed Linton in the form of unwarranted disciplinary actions due to her perceived disability of progressive hearing loss.

Linton seeks trial by jury, enjoining and permanently restraining the defendant from further violation of ADA, actual and compensatory damages, pre-judgment and post-judgment interest, attorney fees and expert witness fees and all such other equitable relief. She is represented by attorney Ike Okorafor of Houston.

Houston Division of the Southern District of Texas Case number 4:16-cv-02144

Civil Rights 101: Performance Standards and ADA Compliance

Bloomberg BNA

Managers supervising employees with disabilities may have concerns about performance and conduct issues, or assume when such issues arise that disability has to be involved. Of course, this isn’t necessarily true. In cases where supervisors know about a disability, they may be reluctant to hold the employee accountable. Their motives may be noble, but, in the long run, it’s not helpful to the employee who may be unaware of the performance problem or to co-workers who may have to pick up the slack.

The EEOC Shoots Down Employers' Attempts at Flu Prevention

The National Law Review

Each year between October and May, millions of people contract the flu. Recent estimates suggest that up to 111 million workdays are lost during the flu season each year — at an estimated $7 billion per year in sick days and lost productivity.[1]  In light of the significant impact the flu can have on human capital and workplace productivity, many employers – especially those with employees who frequently interact with members of the public through the course and scope of their employment, such as health care providers, retailers, and educators – are beginning to implement policies mandating flu shots for all employees. The administration of an annual flu vaccine can substantially reduce the risk of contracting the flu and spreading it to others. During the 2015-2016 flu season, the Center for Disease Control estimates that flu vaccinations prevented approximately 5.1 million illnesses and 2.5 million flu-associated medical visits. However, as discussed in our HEAL Take 5 December 2016 newsletter, a recent influx of Equal Employment Opportunity Commission (EEOC) lawsuits alleging religious discrimination and failure to accommodate under Title VII highlight the challenges employers face when implementing mandatory flu vaccination policies.

A Contingency Plan For A Contingent Workforce: Ensuring Workplace Protections For Staffing Agency Workers

Lexology

Many companies engage staffing agencies to supply temporary, or even permanent, workers to support their operations. Such arrangements offer a variety of benefits, allowing employers to nimbly adjust the size of their workforce based on fluctuating business needs. However, if you rely on staffing agencies to supplement your workforce, a recent decision by a Texas federal judge serves as a warning that you cannot bury your head in the sand when it comes to the legal rights of contingent workers.

There Is An Increasing Rate Of Lawsuits Over Digital Accessibility

ARC

The barriers to inclusion are moving. Slowly.

Anxiety, Absenteeism, and the ADA

Lexology

As accommodating and flexible as the Americans with Disabilities Act (ADA) compels employers to be, the harsh reality is that there are some jobs that a person with certain disabilities simply cannot do. When an employee suffering from a disability can no longer perform the essential functions of her job with or without a reasonable accommodation, the ADA allows her employer to terminate her. Although this rule may be more easily applied when dealing with a physical disability that prevents an employee from completing critical tasks, it also holds true for an employee with a mental or emotional disability, particularly one that prevents her from working at all. The Sixth Circuit made this crystal clear in Williams v. AT&T Mobility Services LLC.

CA: VVTA Paratransit Service Passengers Will Need ADA Certification Effective July 1

MassTransitMag.com

Effective July 1, all Victor Valley Transit Authority passengers using Barstow Direct Access paratransit service will require Americans with Disabilities Act (ADA) certification, VVTA announced in a press release.

An ADA certification card and government-issued identification will be required when boarding, VVTA said. This requirement matches the entire VVTA system service policy.

To begin the four- to six-week ADA eligibility certification process and obtain an ADA certification card, VVTA said passengers must submit an application at ADARide.com or call 1-877-ADA-RIDE.

Fixed Route Senior Disabled Medicare (SDM) identification does not qualify for use of ADA Direct Access service, according to VVTA.

Complementary to fixed route bus service, VVTA offers curb-to-curb paratransit bus service to individuals who meet ADA requirements and are certified.

The Americans with Disabilities Act ensures that persons with disabilities receive comparable mass transportation service opportunities that everyone else receives. For those who have received ADA certification, VVTA Direct Access provides paratransit services as an alternative to its more affordable bus services.

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