Times Square Chronicles
Most businesses won’t give ADA compliance a second look until it hits them in the face with a lawsuit. Truth is, ADA is something many will glance over, skip past and hope for the best with, but this could have huge consequences for your business. ADA should be part of the overall digital strategy for any business out there.
ADA compliance could cost you a hefty fine of up to $75,000 alone for your first offence, something you’re definitely better off without.
In this article we’ll give you everything you need to know about ADA, from what it is to what it means for you and your business and how to handle it.
- An Iowa meat and processing facility worker was not a qualified individual protected by the Americans with Disabilities Act (ADA) because she could not demonstrate at the time of her firing that she could "regularly and reliably attend work, an essential function of her employment," the 8th U.S. Circuit Court of Appeals has ruled (Lipp v. Cargill Meat Solutions Corp., No. 17-2152 (8th Cir., Dec. 19, 2018)).
- Sheena Lipp’s job duties at Cargill Meat Solutions Corp. included stacking and supplying empty boxes to the production line, labeling boxes and moving pallets and packed boxes. She was diagnosed with a lung disease that required days off during flare-ups, absences because of treatment and several work restrictions. She was eventually fired and sued, alleging disability discrimination, and a federal district court granted summary judgment for the employer.
- The 8th Circuit, citing its own precedent, said that regular and reliable attendance is a necessary element of most jobs. The ADA provides that consideration shall be given to the employer’s judgment as to what functions of a job are essential, including written job descriptions, the court noted. And the employer in Lipp maintained a written policy stating that "regular attendance is crucial" and enforced the policy with a system of progressive discipline. In addition, all of Lipp’s job activities listed in her job description required required on-site presence, the court said. The court also noted that her 195 days of unplanned absences for both personal and medical reasons in less than one year exceeded the 172 missed days that it had found disqualifying in an earlier case involving a mechanic.
An employee who missed nine months of work for reasons unrelated to her disability, and then another day without medical verification, was found by the U.S. Court of Appeals for the Eighth Circuit to be unqualified to perform an essential function of her job – regular and reliable attendance.
In Lipp v. Cargill Meat Solutions Corp., the employee suffered from a lung disease that flared up two to four times a year, requiring her to miss work for two to four days each time. The employer accommodated this need, as well as providing her with a clean work environment. In 2014, she took nine months off to care for her mother. Upon her return to work, she was placed on a last chance agreement for attendance, based on this and other missed time. She then used the automated call-in system to report an absence, which recorded her absence as vacation. She was terminated for violation of the last chance agreement. In the termination meeting, she claimed the absence was actually for her medical condition, but did not provide medical verification although she was given the chance to do so.
The ADA prohibits discrimination against a “qualified” person on the basis of disability, meaning that the individual can perform the essential functions of the job with or without reasonable accommodation. The Eighth Circuit found that the employee was not qualified because she was unable to meet the essential job function of regular and reliable attendance, particularly for a job that required on-site presence. Moreover, this court has recognized that persistent absences from work can be excessive “even when the absences are with the employer’s permission,” such as the leave to care for the employee’s mother.
The Eighth Circuit also found that the employee’s requested accommodation – more leave for her flareups without medical verification – would not allow her to perform the essential function of regular and reliable attendance, “but would relieve her of that function.”
Thus, this case reminds employers that the accommodation of leave under the ADA, which can be one of the more frustrating accommodations to manage, is not without limits.
Research indicates that between 110 million and 190 million people, or 15% of the world’s population experience disabilities of some form. According to the World Health Organization, approximately 450 million people experience mental conditions worldwide. The WHO reported in 2017 that conditions like depression and anxiety are estimated to cost the global economy $1 trillion dollars due to productivity loss. Three out of every four employees in the United States is afflicted with a mental illness of some sort, according to the American Health Association. This means that if you manage 100 employees, 75 of them are experiencing some sort of mental illness. There may be employees that want to disclose their condition to employers but are apprehensive and fear negative consequences. Employees may worry that their peers will treat them differently after the disclosure of a mental condition, and these fears are somewhat founded. A 2014 study of people with mental illnesses found that of the 1,381 participants surveyed, over half of the participants indicated that they have not been hired for a job because of their mental illness. Participants indicated that they experienced negative responses after they disclosed their condition. Some participants reported that they had been denied opportunities, were treated differently and were even fired from previous employment due to their condition. The evidence suggests that individuals that decide to disclose a mental condition will likely experience negative consequences. But sometimes the costs of keeping your condition a secret are taxing on mental resources. In considering whether to disclose your condition to your employer, it’s important to weigh the costs of not disclosing.
The mental illness stigma paints individuals with mental illnesses as dangerous and violent. If you are debating whether or not to disclose your condition to your employer, consider the following question: has your condition impacted your ability to do your job or do you expect it to impact your ability to do your job? The Americans with Disabilities Act requires employers to give employees with mental illnesses a reasonable accommodation. If your condition requires accommodations in order for you to perform your job duties optimally, it is a good idea to disclose your condition to your employer. If you have determined that your condition may impact your ability to adequately perform your job, it is also important to consider how you will disclose your condition to your employer or potential employer. If you get indications during the interview or while on the job that the employer is not inclusive and would not be receptive to the disclosure of mental illness, you may want to rethink disclosure. Another important consideration to make is whether you want to reveal details about your condition or whether you would rather request accommodations that are needed while being as vague as possible about your condition. Some mental illnesses are more stigmatized than others, so this is an important factor to assess and is contingent on your specific condition.
Ultimately, the decision to disclose is up to the employee. For employers, it is important to create an environment where employees and job candidates feel comfortable disclosing. A supportive atmosphere that is inclusive of all employees will allow employees to thrive. An environment, on the other hand, in which employees don’t feel valued, respected or a sense of belonging will prevent individuals from disclosing their conditions. For those with mental illnesses, their condition may affect their ability to perform their job to the best of their abilities, which will affect their productivity and thus the organizational productivity. Failure to disclose a mental illness can be much more damaging and detrimental for organizations than for the individual. Ensuring that all employees are properly trained on how to effectively create an equitable environment is imperative and will allow your organization to be a place in which individuals feel comfortable disclosing their condition.
Six disabled and elderly Floridians are suing the state over alleged violations of the Americans with Disabilities Act.
The case involves long wait times of up to 3½ years for access to in-home health care through Medicaid.
The plaintiffs are among some 50,000 disabled and elderly people who are on a wait list to get Medicaid approval for in-home services.
The suit alleges that the patients face hardships without these services, said Regan Bailey, litigation director for Justice in Aging, which is representing the plaintiffs along with Disability Rights Florida and the Southern Legal Counsel.
It might be hard to relate to someone with a disability, but like anyone else, they are human and certainly worth getting to know. There are some important things to know when interacting with someone who has disabilities, so that they do not feel offended and remain comfortable.
Deborah Lannon is a chaplain at the Novant Health Brunswick Medical Center in Bolivia. She has some tips on interacting with a person with disabilities.
1. There are many different things that can make someone considered a person with disabilities
It’s important to know who qualifies as a person with disabilities. There is a wide range to this, as individuals who are in wheelchairs, canes or walkers can be considered a person with disabilities. “And then there’s some disabilities you can’t see,” said Lannon, “like hearing impairment or vision impairment. Sometimes even mental health can be considered a disability.” Because visual and hearing impairments or mental health can be hard to recognize, Lannon emphasizes that even if you don’t see something, don’t assume they don’t have an impairment. This will usually come out in conversations.
2. There are certain ways you can talk and interact with person with disabilities
People with disabilities are like anybody else. “Sometimes it’s our tendency to speak to the person with them, instead of speaking directly to them,” said Lannon. “Speak to them, they can answer and do the things they need to do.” If someone is in a wheelchair, try to get on their level as much as you are able. “How many of us like talking to someone who is looming over us?” said Lannon. “As much as possible, get on eye level.” It’s also important to remember to respect the space of someone in their wheelchair, as Lannon says it is a part of their personal space and life. Concerning service dogs, you should not pat them as they are working with their owners, and do not walk on the side the dog is walking by it makes its job more difficult. If someone has a prosthetic, shake the hand you’d normally shake.
3. Let your children know how to address a person with disabilities
Children might stare, and it is not polite to stare at anyone. Sometimes children will blurt out a question, but those questions are usually not rude, and so letting the person with disabilities answer is better. It’s important to let your child know that it’s just someone who has to do things differently. “We come in all shapes and sizes and varieties,” said Lannon, “and sometimes people have to use things to help them do tasks or function.” She says this does not make them odd or different, and children should understand that this is part of the human landscape and what it’s like to be human. “When you’re talking with children,” said Lannon, “I think what you want to help them understand is that there is nothing to be afraid of.”
4. It is OK to help if a disabled person needs it
If a disabled person is struggling with tasks such as opening a door, Lannon says the first question to ask is “Would you like some help?” They might not, despite what it seems. “It might be something they may be learning how to do,” said Lannon, “or it gives them some independence.” If they say you can help them, ask them how -- it can vary from one individual to another. If there are more serious issues such as a fall or seizure, then calling 911 is a good start. Lannon says these individuals sometimes have a person with them. In that case, it would be good to listen to them.
5. The key is not to assume
It’s important not to assume how someone relates to the disability they have, says Lannon. “Don’t assume that they feel like a victim, or wish they didn’t have it,” said Lannon. Some people are thankful and wouldn’t change it, and some are the opposite. The key is to understand is that a person with disabilities is no different than anyone else. It’s all part of human nature.