ADA in the News: January 5, 2018

Courts Continue to Grapple with Leave as a Reasonable Accommodation Under ADA

Lexology

When is it safe to terminate an employee who has exhausted (or is ineligible for) Family Medical Leave Act (FMLA) leave, but who is unable to return to work? This question continues to confound employers, and has been the subject of numerous court opinions, many of which answer the question in different and seemingly inconsistent ways.

The Americans with Disabilities Act (ADA) does not include “leave” among the non-exclusive list of reasonable accommodations that may be required under federal law. However, many courts have found that a leave of absence may be a reasonable accommodation under the ADA, at least where an employee’s medical provider has indicated that leave will enable the employee to return to work. A body of case law has developed over recent years, analyzing employees’ leave requests in the context of the facts presented, and determining which requests are “reasonable” (and therefore potentially required under the ADA), or “unreasonable” (and therefore not required as a matter of law). Last year (2017) saw two such cases from federal Courts of Appeal, including a May 2017 decision from the First Circuit Court of Appeals and a September 2017 decision from the Seventh Circuit Court of Appeals. It should be noted that the US Supreme Court has yet to address this issue, despite the conflicting opinions among the circuit courts.

2 local restaurants settle ADA lawsuits brought by frequent litigants

The Daily Post

Americans With Disabilities Act lawsuits filed by serial litigators against the Fish Market in San Mateo and the City Pub in Redwood City have been settled, according to court documents.

The lawsuit brought against the Fish Market at 1855 S. Norfolk St. in San Mateo was settled in November with an agreement between the restaurant and the man who sued, Gerardo Hernandez.

According to the agreement, “corrective work” will be done to the restaurant, including improving the bathrooms so someone in a wheelchair can comfortably navigate them without help. The restaurant will change the bar so that somebody in a wheelchair can be comfortably served there.

The restaurant will also train its waiters to let diners who cannot get up the stairs to the Top of the Market portion of the building to be served on the first floor with the Top of the Market’s menu.

Is Your Company Website Sufficiently Accessible to the Disabled?

Lexology

Over the last two years, there have been an increasing number of lawsuits filed over the alleged failure of websites to accommodate persons with disabilities. According to a recent New York Times article, since January 2015, at least 751 website accessibility lawsuits have been filed under Title III. The vast majority of these suits have targeted retailers and restaurants. Now, other entities, such as academic institutions, are coming under fire, and we anticipate litigation to increase in 2018 impacting all industries.

Pepsi Center will provide open captioning after settling class-action lawsuit

USA TODAY

A subsidiary of Kroenke Sports and Entertainment has agreed to a preliminary settlement of a class-action lawsuit that will require nearly all sporting events at Denver’s Pepsi Center --- including Colorado Avalanche and Denver Nuggets games --- to provide captioning on the video boards inside the arena.

The case that alleged Americans with Disabilities Act (ADA) violations was filed by Kirstin Kurlander, who is deaf, in November 2016. The federal lawsuit was granted class-action status in August. Lawyers for the Kroenke Arena Company agreed to a consent decree in the case Dec. 29,  which will require open captioning no later than September.

Courts Continue to Grapple with Leave as a Reasonable Accommodation Under ADA

Lexology

When is it safe to terminate an employee who has exhausted (or is ineligible for) Family Medical Leave Act (FMLA) leave, but who is unable to return to work? This question continues to confound employers, and has been the subject of numerous court opinions, many of which answer the question in different and seemingly inconsistent ways.

The Americans with Disabilities Act (ADA) does not include “leave” among the non-exclusive list of reasonable accommodations that may be required under federal law. However, many courts have found that a leave of absence may be a reasonable accommodation under the ADA, at least where an employee’s medical provider has indicated that leave will enable the employee to return to work. A body of case law has developed over recent years, analyzing employees’ leave requests in the context of the facts presented, and determining which requests are “reasonable” (and therefore potentially required under the ADA), or “unreasonable” (and therefore not required as a matter of law). Last year (2017) saw two such cases from federal Courts of Appeal, including a May 2017 decision from the First Circuit Court of Appeals and a September 2017 decision from the Seventh Circuit Court of Appeals. It should be noted that the US Supreme Court has yet to address this issue, despite the conflicting opinions among the circuit courts.

ADA Lawsuits Against CUs Spike in December

Credit Union Times

More than 30 new ADA suits were filed against credit unions last month over the accessibility of their websites, likely making it a “December to remember” for many in the credit union industry.

The surge brings the total number of suits filed to more than 60 so far. Credit unions in nine states have been served, according to court records.

Sources tell CU Times that demand letters, which typically precede the suits, have landed on the doorsteps of even more credit unions.

NAFCU aggressively fighting frivolous ADA lawsuits; another amicus accepted

CUinsight.com

The U.S. District Court for the Eastern District of Virginia accepted an additional amicus brief submitted by NAFCU in support of a credit union’s motion to dismiss a complaint filed against the institution under the Americans with Disabilities Act.

As the number of frivolous lawsuits filed under the ADA has increased in recent months, NAFCU has been proactive in supporting members targeted by litigation.

The Eastern District Court had previously accepted another amicus filed by NAFCU; the hearing for that case is today. NAFCU appreciates the court’s willingness to listen to the association’s concerns and will continue to monitor developments in these cases.

Credit unions and other institutions have faced a rash of lawsuits in the past year related to website accessibility because of ambiguities in the ADA’s language. NAFCU and its members strongly support the protections of the ADA and efforts to ensure individuals with disabilities are not discriminated against and have equal access to financial services.

Mental Illness, Intellectual Disabilities and the ADA – Webinar

MilTech

With the dramatic expansion of the American With Disabilities Act (ADA) by the ADA Amendments Act (ADAAA) and the EEOCs ADAAA regulations and December 2016 guidance, ADA charges and lawsuits have skyrocketed. A great many of the burgeoning claims concern matters formerly called mental disabilities and which are now called intellectual disabilities. In FY 2016, the EEOC resolved approximately 5,000 charges based on mental health conditions and obtained 20 million for individuals allegedly denied employment or reasonable accommodations. Employers were hit with many more millions in damages in ADA Court litigations.

Receive the tools to assess if an individual has a covered intellectual disability, and if so, how an employer should determine if the individual is qualified. You will be able to successfully navigate the maze posed by the interactive process and determine if a reasonable accommodation exists or whether the employer is confronted by an undue hardship or direct threat.

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