ADA in the News January 7, 2019

Blind woman sues Beyonce's entertainment company for discrimination

WSB Atlanta

A blind woman has filed a class action lawsuit against Beyonce Knowles' Parkwood Entertainment LLC, claiming the singer's website discriminates against those who are visually impaired.

Mary Conner, who is legally blind, filed the lawsuit in U.S. District Court for the Southern District of New York -- where both Beyonce's entertainment company is located and Conner lives -- on Thursday.

The website does not allow blind fans to buy tickets, get tour updates, buy merchandise or learn more about the pop superstar, according to the lawsuit.

Local governments on alert over lawsuits targeting ADA violations over website documents

Orlando Sentinel

The public has long been able to poke around local government websites to keep track of council or commission meetings, look up records or fill out permit applications.

But counties and cities across the state have recently come under legal attack by advocates for the disabled, who say that the electronic information on the public websites is not accessible to people who are deaf or blind.

At least three Central Florida cities — Lake Mary, Longwood and Oviedo — have temporarily removed many public documents from their websites to protect themselves from lawsuits alleging a violation of the Americans with Disability Act. The public now has to either call or visit those city halls to obtain the documents.

The Muddy Waters of ADA Website Compliance May Become Less Murky in 2019


The Americans with Disabilities Act (the “ADA”) has been the source of a tremendous amount of litigation since President George H.W. Bush signed it into law in 1990. Over the past few years, Plaintiffs’ counsel have developed a cottage industry of sorts by filing thousands of lawsuits alleging that company websites are not accessible to the blind or visually impaired, in violation of Title III of the ADA, which prohibits discrimination on the basis of disability in “places of public accommodation.” 42 U.S.C. § 12182(a). While ADA lawsuits previously focused on physical access barriers to businesses, these new lawsuits allege that: (1) private company websites qualify as places of public accommodation; and, (2) websites with access barriers (e.g., websites without compatible screen-reading software) deny plaintiffs the right of equal access. Plaintiffs have also challenged the accessibility of mobile applications and online job application interfaces.

Facts Surrounding Employee's ADA/FMLA Request to Avoid


Not all requests for accommodation or FMLA leave will fit into neat boxes like “pregnancy” or “knee surgery.” Because the ADA definition of a disability includes any impairment that affects a major life function, employers are starting to see some more creative requests around the margins. In Trautman v. Time Warner Cable Texas, LLC, the Fifth Circuit recently dealt with an employee’s requests under both the ADA and FMLA to address her “anxiety/panic attacks” related to driving in bad traffic. Buckle up, while we try to unpack this situation!

Road Anxiety—ADA Path

Heather Trautman worked at Time Warner from October 2012 until April 2015 in a position that required her to be in the office to interact with other members of her team at certain times. After she became pregnant in 2013, she suffered several panic attacks while driving to or from work. Her obstetrician suggested that she leave work earlier to avoid driving in heavy traffic. Although Ms. Trautman did not submit an ADA accommodation request for her driving issues, her supervisor agreed to let her temporarily modify her work schedule.

After Ms. Trautman gave birth, she took FMLA leave, returning to work in March 2014. She told her supervisor that she was struggling to transition her baby to bottle feeding and asked if she could temporarily work from home. Her supervisor requested a doctor’s note but agreed to the temporary change—and Ms. Trautman worked from home for the remainder of 2014.

In December 2014, Ms. Trautman’s new supervisor told her she needed to resume working from the office starting in mid-January. The new supervisor was concerned Ms. Trautman was not performing necessary job duties that required her presence in the office. Ms. Trautman asked that she be allowed to work from home, and her supervisor said not unless she had a doctor’s note and a formal accommodation request approved by HR.

At that point, Ms. Trautman submitted a formal ADA accommodation request asking to work from 7 a.m. to 2 p.m. in the office and the remaining hours at home. The reason given was that her family physician said she had functional limitations of “anxiety/panic attacks related to traffic/driving.” The 2 p.m. departure was to allow her to avoid the heavy traffic. Time Warner denied the request because her job required her to work from the office during normal business hours. However, it did offer to adjust her schedule to 7 a.m. to 4 p.m. so she could leave the office earlier. Significantly, Ms. Trautman never tried the 4 p.m. departure time. Instead, she submitted another letter from her physician, and this time said she would be willing to leave the office at 11:00 a.m., so she could accommodate any busy afternoon work from her home. Time Warner again tried to get her to consider the 4 p.m. departure time, or even public transportation or ride sharing, to avoid her anxiety. Ms. Trautman again refused to try the 4 p.m. exit and also refused any other accommodations.

Trautman Takes Another Route—Intermittent FMLA Leave

With her ADA accommodation request at a standstill, Ms. Trautman began another plan—she started submitting intermittent FMLA leave requests that would let her depart the office early. She made those requests through Time Warner’s third-party administrator for leave requests—Sedgwick Claims Management Services. Ms. Trautman submitted paperwork from her physician saying that she needed to leave the office no later than 2 p.m. when her high-traffic anxiety flared up. Sedgwick approved her for one hour of FMLA leave per week for six months, but denied her request for any FMLA leave that would exceed that amount.

Ms. Trautman was missing work for numerous reasons at this time and received a written warning for her attendance. Her supervisor checked with Sedgwick to make sure that they were not counting FMLA leave against Ms. Trautman. Ms. Trautman continued to miss work. She was issued another warning pointing out that she had been absent for 22 days in the first three months of the year. She was warned that another write-up would result in termination. On the same day she received the write-up, she submitted a new doctor’s note to Sedgwick seeking an increase in her FMLA leave. Sedgwick agreed to increase the leave, but only as of the date they received the new paperwork — it did not retroactively approve any of her past absences as FMLA-covered. Ms. Trautman then began to take her increased leave. However, her unapproved absences continued, and Time Warner ultimately terminated her for excessive absenteeism.

Ms. Trautman filed suit claiming she was terminated in retaliation for her FMLA requests and that Time Warner failed to reasonably accommodate her ADA request relating to her anxiety about driving in heavy traffic. The lower court granted summary judgment on all of Ms. Trautman’s claims, and she appealed.

Fifth Circuit Drives it Home

The Fifth Circuit found that in examining whether Ms. Trautman’s absences were excessive, Time Warner had checked with Sedgwick to see if the time she missed was covered by the approved FMLA leave. It also noted that Time Warner’s reason for terminating her, excessive absenteeism, was not a pretext for FMLA retaliation. An employee’s failure to show up for work is a legitimate reason for firing her. The Fifth Circuit also stated that even if you subtracted the FMLA leave that eventually was approved, Ms. Trautman’s overall absences far exceeded the limits in Time Warner’s attendance policy. As such, there could be no claim for retaliation under the FMLA.

With regard to her ADA claim, the Fifth Circuit again found that there was no pretext in her termination. On the failure to accommodate claim, the Fifth Circuit noted Ms. Trautman did not engage in a flexible, interactive discussion about her accommodation request. She requested that she be allowed to leave at 2 p.m. When Time Warner denied that request, Ms. Trautman instead asked to leave at 11:00 a.m. The court stated “that’s not the stuff of flexible, interactive discussions.” It also bothered the court that Ms. Trautman never looked into other options, such as additional breaks or ride sharing. In the end, the court stated “neither the ADA nor the 2008 amendments to the ADA permits an employee to leave work early and then sue her employer for being unreasonable.”

How Does This Affect the Rules of the Road on FMLA and ADA?

This decision didn’t really alter the landscape, but it is a good example of an employer that did a decent job of trying to accommodate an employee who was asking for more than the company could grant. The Fifth Circuit noted several times in the opinion that Time Warner had allowed her to alter her work schedule, even though they weren’t absolutely required to do so. Time Warner apparently did a good job of communicating with Ms. Trautman, even if it was denying what she wanted. In addition, the court also found it significant that every time Ms. Trautman’s supervisor was looking to discipline her for being absent, she first looked to make sure those absences weren’t covered by the FMLA.

One of the lessons to be learned here is that when it comes to mental health, especially anxiety, employers need to be very careful to follow their usual procedures on ADA accommodation requests. In addition, even though Ms. Trautman had been working from home for the better part of a year, Time Warner had appropriate evidence to show that actual presence in the office was an essential function of the job. That evidence enabled the Fifth Circuit to state that failing to show up for work when required can be a basis for termination.

United States: Religious And Medical Accommodations Of Mandatory Flu Shot Requirements

Mondaq News Alerts

It's that time of year again – flu season! This year, just as in years prior, the Centers for Disease Control and Prevention (CDC) recommends that all individuals 6 months and older receive the influenza vaccination (flu vaccine) to prevent the flu virus. The CDC also strongly recommends the flu vaccine for people at high risk of flu-related complications, including individuals aged 65 years and older, pregnant women and children younger than 2. Just last year, a record number of pediatric deaths were associated with the flu. As a result, many employers in the healthcare industry have instituted mandatory flu vaccination programs for employees. Employers with mandatory flu vaccination programs should make sure that any such program has an opt-out procedure available to employees where necessary based on an employee's medical needs or religious or spiritual beliefs.

Title VII of the Civil Rights Act of 1964 (Title VII) and applicable state and local laws require the accommodation of sincerely held religious or spiritual beliefs. Beliefs generally are considered to be religious if they address "ultimate ideas" about human existence and purpose, and they need not be "organized" religious beliefs in order to be protected. There are, however, limits on the definition of "religion." The Equal Employment Opportunity Commission (EEOC) guidance states that "[s]ocial, political, or economic philosophies, as well as mere personal preferences, are not 'religious' beliefs protected by Title VII." When an employer is on notice that an employee sincerely holds a religious or spiritual belief that conflicts with an employment requirement, that triggers a duty to engage in an interactive process with the employee to determine whether a reasonable accommodation can eliminate the conflict. This requires an exchange of information between the employer and employee and involves an assessment of the nature of the employer's business, the scope of the religious limitation(s) and whether an accommodation would cause undue hardship such as significant cost or burdens on the business and other employees. For employees concerned about certain flu vaccine ingredients, there may be variations of the flu vaccine that do not contain the ingredient of concern.

Similarly, the Americans with Disabilities Act (ADA) and applicable state and local laws require the accommodation of qualified employees who have disabilities that would prevent their receipt of the flu vaccine, unless doing so would pose an undue hardship on the employer. "Disabilities" are defined as physical or mental impairments that substantially limit one or more major life activities. The definition applies to persons with a history or record of such impairments and persons who are perceived by others as having such impairments. "Qualified employees" are those who hold the necessary degrees, skills and experience for the position and who can perform the essential functions of the position, with or without an accommodation. For example, as it relates to the flu vaccine, it may not be safe for an individual with Guillain-Barre syndrome to receive the flu vaccine, whereas there is generally no duty to accommodate fear about receiving the flu vaccine. Just as with religious accommodation requests, when an employer is on notice that an employee has medical issue or disability that would prevent his or her receipt of the flu vaccine, the employer is required to engage in an interactive process with the employee to determine whether a reasonable accommodation is available that would not pose an undue hardship on the employer.

For example, the Eighth Circuit, in Hustvet v. Allina Health System, recently concluded that an employer did not violate the ADA and Minnesota disability laws when it fired an employee who refused to get the rubella vaccine, on the basis that the vaccine requirement protects vulnerable patients. The former employee, an independent living skills specialist who worked with potentially vulnerable patients, had requested an exemption from her employer's measles, mumps and rubella (MMR) vaccine requirement on the basis that she had suffered severe cases of mumps and measles (notably not rubella) and had "many allergies and chemical sensitivities." The court rejected the former employee's failure-to-accommodate claim, finding that she had not shown that her chemical sensitivities or allergies limited her ability to perform major life activities. The court noted that she had never been hospitalized for an allergic reaction, had not visited an allergy specialist and had not sought significant medical attention when experiencing an allergic reaction. Rather, the court stated that the former employee has "garden-variety allergies to various items that moderately impact her daily living," which does not satisfy the disability standard under applicable law.

With the popularity of mandatory vaccination programs in the healthcare industry across the country, we are observing a spike in discrimination lawsuits based on an alleged failure to provide religious and medical accommodations with respect to flu vaccine requirements. Employers are encouraged to engage in an interactive process with employees who submit medical or religious exemption requests with respect to flu vaccine requirements and consult counsel prior to taking any adverse employment actions on the basis of an employee's submission of an insufficient medical or religious exemption request and failure to comply with a mandatory flu vaccination program.

Working with a disability

Harvard Health (blog)

If you are having an issue finding or keeping work — whether full-time or part-time — due to your disability, please contact your state government’s rehabilitation commission, or search online for disability advocacy groups near you for help. Because those of us with chronic illness should be able to apply our skills, experience, and training in the workplace and earn a decent living.

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