ADA in the News: May 9, 2018

United States: What Now For Wellness?

Mondaq News Alerts

In addition to HIPAA, the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) also have prohibitions impacting wellness programs: That is, the ADA does not allow discrimination based on a disability, and GINA does not allow a plan to use genetic information to discriminate. So, wellness programs that ask participants to answer health-related questions or undergo medical testing are inherently problematic under these laws. Accordingly, the EEOC issued regulations under the ADA and GINA to allow such programs under certain circumstances, and limited the permissible incentives to 30 percent of the cost of employee-only coverage. And the EEOC also added a number of other requirements a plan needs to meet in order to establish that its wellness program is voluntary. (See chart for similarities and differences between the HIPAA-ACA regulations and the EEOC regulations.)

First Circuit Nixes ADA Suit Finding that Disabled Employee Was Not A “Qualified Individual” (US)

The National Law Review

Not pulling any punches, the United States Court of Appeals for the First Circuit recently issued a decision finding against a disabled former Burger King franchise employee, explaining that although its admittedly harsh decision was a “lesson straight out of the school of hard knocks,” “[n]o matter how sympathetic a plaintiff or how harrowing his plights, the law is the law and sometimes it’s just not on his side.”

Caribbean Restaurants, LLC operates Burger King restaurants throughout Puerto Rico.  In 2011, one of its assistant managers, Victor Sepulveda-Vargas, was attacked at gunpoint while making a bank deposit for Caribbean, hit over the head, and his car stolen.  Not surprisingly, this terrifying ordeal left Sepulveda with post-traumatic stress disorder and major depression.  When he was ready to return to work, Sepulveda asked the Caribbean to accommodate his disability by allowing him to work a set schedule, rather than the standard manager schedule that rotates during the week through all three work shifts.  At first, Caribbean agreed to Sepulveda’s request because it believed the Americans with Disabilities Act (“ADA”) required it.  But Caribbean later reconsidered and informed Sepulveda that it could not continue to have him work on a set schedule, explaining that working a rotating schedule was an essential function of the assistant manager position.  Sepulveda then sued, alleging that Caribbean failed to reasonably accommodate his disability in violation of the ADA. 

Kohl's wants ADA lawsuit dismissed

Legal News Line

The plaintiff in a disability discrimination lawsuit against Kohl’s Corp. is fighting the company's effort to dismiss it.

Sheila Fisher, as the guardian of Devora Fisher, stated in a Feb. 23 memorandum filed in the U.S. District Court for the Northern District of Illinois, Eastern Division that the motion from Kohl's “grossly distorts the principle of res judicata.” 

The memo notes that Kohl’s is seeking to dismiss Devora Fisher’s claims after previously arguing that The Equal Rights Center v. Kohl’s Department Stores Inc. case should be dismissed to allow individual plaintiffs’ cases to proceed. 

“The ERC Action was voluntarily dismissed to allow its members’ actions to proceed more efficiently,” the memo said. “It would be unfair and illogical to now punish the individual plaintiffs for the ERC’s good faith decision aimed at promoting judicial economy.” 

The ERC sued Kohl’s in October 2014 over alleged violations of the Americans with Disabilities Act (ADA), claiming the store’s layout doesn’t conform with standards laid out in the law. Others named as plaintiffs in the filing are Devora Fisher, Edith Prentiss, Jean Ryan, Monica Kamal and Regina Lee. 

How voice assistants can benefit people with disabilities

No person should struggle with or be limited by technology to access their financial information or complete their day-to-day banking needs. Yet that isn’t always the case for millions of Americans who live with some form of disability that limits their dexterity or sight.

While industry advocacy groups such as CUNA continue to fight against predatory litigation based on ambiguities within the Americans with Disabilities Act (ADA), there is an opportunity for credit unions to expand their range of assistive technology offerings, doing even more for their members with disabilities through voice assistant technology.

EEOC secures $100000 from Chicago Kia dealership after alleged discrimination

Legal News Line

The U.S. Equal Employment Opportunity Commission (EEOC) announced April 26 that Evergreen Kia, a car dealership in Chicago, will pay $100,000 and adjust its business practices after allegations of sexual orientation and disability discrimination.

"We thank Evergreen Kia for its commitment to settle this case before the parties incurred significant costs and for its willingness to modify its policies, provide training to its employees, and to have an outside monitor investigate complaints of discrimination," EEOC Chicago regional attorney Gregory M. Gochanour said in a statement.

Websites and the Americans With Disabilities Act—Definitely a Work in Progress

During the last few years, there has been an explosion in the number of lawsuits being filed claiming that a business’ website violates the Americans with Disabilities Act (ADA).

Disabled Hudson student wins right to use 'robot'

Worcester Telegram

Keegan Concannon has missed about 115 days of school this year due to illness, but was able to use robotic equipment to remotely participate in many of his seventh-grade classes. But that wasn’t always the case.

His family fought for years with the school district over his right to use the machine, and when the U.S. attorney’s office reached out last summer, the family decided to take part in the investigation.

On Monday, the office announced it reached a voluntary compliance agreement with the school district regarding its obligation to students with disabilities under the Americans with Disabilities Act (ADA), according to a news release.

Here's What You Need To Know To “Accommodate” An Employee With A Disability

Let’s set the stage for this “how to” post with a newly-filed lawsuit.

A Georgia for-profit thrift store was just sued by the EEOC, which alleged that an employee with COPD and emphysema asked to be allowed to wear an oxygen backpack to treat her symptoms.  Fairly simple request.  However, the company’s management denied her repeated requests.

Her symptoms got worse and she asked to transfer to a less strenuous position (she was a “stocker”).  Her request was denied.

She resigned after being hospitalized, and claimed that the denial of her request for an accommodation had “compromised her health.”

The EEOC sued.

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