ADA in the News May 27, 2020

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Lawsuit claims online classes fall short for autistic children

A lawsuit filed in federal court last week by two Bucks County families claims Pennsylvania’s coronavirus school closures have denied nonverbal and partially verbal autistic children an adequate education.

A federal lawsuit filed last week claims school closures in Pennsylvania have effectively left out students on the autism spectrum from getting an education.

Two Bucks County families are suing Gov. Tom Wolf and the Department of Education over “wholly inadequate” online courses for nonverbal and partially verbal autistic students.

The lawsuit is asking a judge in the U.S. District Court of Eastern Pennsylvania to order the state add in-person education for children with autism as an essential service.

Court documents claim Wolf’s administration “made no allowance” for the needs of autistic students when closing schools due to the coronavirus pandemic.

Wolf ordered schools closed on March 16 as the novel coronavirus began spreading through the state, prompting schools in most districts to move to remote classes online.

That order banning in-person classes was extended through the remainder of the school year on April 9.

“Many times, nonverbal and partially verbal children with autism do not transfer skills they learn in the classroom to the home environment thus making online learning incompatible with in-person learning,” court documents state.

The plaintiffs in the lawsuit are only referred to with pseudonyms for privacy reasons.

The court documents state the lack of resources for autistic students runs afoul of two federal laws, the Americans with Disabilities Act and the Individuals with Disabilities Education Act.

In order to successfully litigate a claim under the ADA, the plaintiffs must have a qualifying disability.

Two 7-year-old children, referred to as Brennan and James, and their respective family members are named as plaintiffs in the court documents by first name only to meet that ADA requirement.

Court documents state James is a nonverbal Central Bucks School District student, while Brennan is a partially verbal autistic student at an undisclosed school district.

Partially verbal autistic students can find speaking difficult or “impossible” at times, court documents state.

Autistic students often require one-on-one lessons using communication aides, which include picture boards, speech-generating devices or even gestures, the lawsuit states.

The lawsuit also criticizes the administration’s order closing non-essential businesses several weeks ago, including waivers for some businesses to remain opening as “life-sustaining.”

Stores making or selling Tobacco, fireworks and even Wolf’s own former York-based cabinet and office supplies business, Wolf Home Products, were granted waivers to remain open.

“Put another way, (Wolf) has deemed companies that manufacture products he deems as ‘dangerous’ as, in fact, ‘life-sustaining’,” the lawsuit states, referring to tobacco businesses remaining open.

The lawsuit called the waiver process allowing some essential business to continue operating as “opaque, arbitrary and capricious.”

Minimizing Employer Liability in Remote Workplaces

Almost overnight, the COVID-19 epidemic made remote work commonplace in many occupations across the country. While it has been challenging and stressful at times, employers have been surprised to see that the work is getting done, often sooner and at less expense.

Nationwide, an insurance and financial services company with more than 27,000 employees, embraced remote-work arrangements before the COVID-19 epidemic struck. Today the Ohio-based company is accelerating its push for remote work, announcing plans to transition from 20 office buildings to just four. According to CEO Kirt Walker, Nationwide will realize substantial cost savings while retaining effective management over its workforce as a result.

Tech giants Google and Facebook both recently announced that most of their workforce will be allowed to work remotely through the end of 2020.

Within the legal profession, the necessity of serving clients—online and outside the office—during weeks of government-imposed social distancing measures has proven that remote lawyering is more feasible than once believed. Attorneys who have participated in remote court hearings and remote depositions, argued in front of the Supreme Court of the United States, conferred with clients via Zoom conferences, closed deals, managed office staff, and taken on new clients entirely online have a new appreciation of the ability of technology to transform the profession.

It’s a fair bet that the newly interconnected legal system will not return to its old ways when the COVID-19 epidemic passes.

Finally, many employees are understandably reticent to return to commuting on public transportation and working in crowded metropolitan office buildings. If remote work is possible, they may insist upon it, thereby creating talent management challenges for law firms and other white-collar employers.

For many businesses, the transition to remote work materially impacts key aspects of the employer-employee relationship that could, if not handled wisely, create legal liability for the employer.

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