Disabled Access: A Chance to Fix Your Premises Before Being Sued?
Lexology
New legislation seeks to level the playing field for businesses that have been targeted by “drive-by” claims alleging discrimination by customers with disabilities who may have never even gone to visit the place of public accommodation. Keep your fingers crossed.
Businesses frequently complain about “drive-by” lawsuits. Some courts have lamented the “cottage industry” that seems to have arisen under Title III of the Americans with Disabilities Act, particularly because of the availability of attorneys’ fees, and have suggested that reforms are necessary. Congress seems to have heard that discontent and is working on a solution through the proposed ADA Education and Reform Act of 2017, H.R. 620.
Considerations for Employers as Medical Marijuana Approaches
Law.com
Employee Working Conditions and Reasonable Accommodations
Employers must also be mindful of the Americans with Disabilities Act (ADA), 42 U.S.C. Sections 12101. The ADA generally prohibits employers from discriminating against employees with disabilities and requires employers to make accommodations for employees with a disability, so long as the accommodation does not impose an “undue hardship.” Because individuals certified under the act will do so in order to treat a “serious medical condition, see 35 P.S. Section 10231.103, they will usually qualify as being “disabled” under the ADA.
After determining an employee has a qualified disability, employers would be wise to engage in an initial interactive process to determine whether it is feasible to make accommodations for the employee to lawfully use cannabis away from the workplace and still perform their job. Before taking any action, the employer should ensure that it ties its decision to the hardship in accommodating the employee, the employee’s inability to complete the job, or a decline in the employee’s performance.
Disney Asks 11th Circ. To Affirm ADA Win Over Autistic Guests
Law360
Walt Disney Parks and Resorts asked the Eleventh Circuit on Wednesday to affirm its lower-court win against families who say its accommodations for the disabled ignore autistic guests’ needs, arguing the guests failed to show the lower court its access system violates access standards under the Americans with Disabilities Act.
The guests who sued Disney over the allegedly longer wait times are seeking preference rather than disability accommodations, the company argued in its 99-page brief before the appeals court. The families have “never come close” to satisfying the ADA’s legal standard of proving its Disability Access Service system makes their autistic guests unable to access its rides, Disney said, and “it is not enough to show that DAS makes it ‘uncomfortable’ or ‘difficult’ to access.”
“In fact, under Disney’s Disability Access Service program, which allows guests with autism and other cognitive disabilities to hold a place in line for rides without having to stand in an actual line — thereby giving them time to experience other attractions while they wait virtually — appellants had the opportunity to experience all the same or even more rides and attractions than the majority of other guests and with much less wait time,” Disney argued.
Disney implemented its DAS System in 2013 as a response to non-disabled patrons who abused its prior program by using it to obtain unlimited, no-wait access to park rides. The guests’ 2014 lawsuit sought a return to that program plus damages, arguing the new system creates longer wait times that can cause autistic guests to suffer “meltdowns.”
The “death knell” to the guests’ consolidated appeals is that they’ve never been able to claim material facts to prove their case, Disney said Wednesday. The company argued the suit’s uncontested facts show the guests have been able to access rides after waiting in shorter lines than non-disabled guests, and they have demonstrated they’re capable of waiting and deferring their gratification at Disney parks and other places.
Disney argues Title III of the ADA requires the families to show a reasonable change to its implemented policy is “necessary to afford access” to its parks, and the lower court correctly found their suit failed to meet that threshold.
“Appellants’ dispute with the decisions ... is not about the underlying material facts — which they concede are undisputed — but rather the fair conclusions drawn from them,” Disney contended.
At one stage the case was transferred to Florida federal court, where Disney won summary judgment, but several plaintiffs continued to fight the resort and refiled in California with additional plaintiffs in 2015. Disney won judgment on the parties’ pleadings again in California in April, with the lower court finding the issues raised in the guests’ second suit were already addressed and dismissed in Florida.
Counsel for the guests and for Disney declined to comment.
The guests are represented by Anthony Dogali of Dogali Law Group PA, Eugene Feldman of Arias Sanguinetti Wang & Torrijos LLP, and Domenick Lazzara of Lee & Lazzara PLLC.
Disney is represented by Kerry Scanlon, Robert Kline and Jeremy White of McDermott Will & Emery LLP, and Manuel Kushner, Paul Margulies, Oscar Ramallo and Rhonda R. Trotter of Arnold & Porter Kaye Scholer LLP.
The consolidated appeal is S.J.K et al. v. Walt Disney Parks and Resorts U.S. Inc., case numbers 17-10143, 10144, 10148, 10193, 10198, 10202, 10203, 10205, 10212 and 10216, in the U.S. Court of Appeals for the Eleventh Circuit.
--Additional reporting by Braden Campbell, Cara Salvatore and Natalie Rodriguez. Editing by Richard McVay and Adam LoBelia.
Long-Term Leave Under the ADA May Be Another Step Closer to Becoming a Thing of the Past
Lexology
Just a few months after a recent and definitive decision by the Seventh Circuit that multi-month leaves of absence, even those that are definite in term and sought in advance, are not required by the Americans with Disabilities Act (ADA), the Eleventh Circuit has issued a similar opinion. This decision may signal a growing trend that courts are attempting to curb the abuse of long-term leaves of absence under the ADA that has been rampant and debilitating to employers for many years.
In the recent Eleventh Circuit case, Billups v. Emerald Coast Utilities Authority, the plaintiff injured his shoulder at work and took Family and Medical Leave Act (FMLA) leave. He was not able to have corrective surgery during this time, so under the employers medical leave policy, he was granted another three-month medical leave. However, at the end of this period — a total of six months of leave — the employee was still not medically able to return to work. He told the employer that he had a doctors appoint in a month and would likely be released to work in six weeks, but it was unclear whether he would have any restrictions at that time. Thus, the employer terminated the plaintiff’s employment and he sued, alleging failure by the employer to provide additional leave as an ADA reasonable accommodation.
The Eleventh Circuit affirmed dismissal of the plaintiff’s claim on summary judgment. The plaintiff acknowledged that case precedent says that employers are not required to provide indefinite leaves. However, he argued that these prior decisions involved situations where employees suffered from chronic medical conditions that could continue indefinitely. In this case, the plaintiff contended that an unspecified leave was reasonable because there was a projected end date and once concluded, his medical condition would be resolved without the potential need for additional leave.
The Eleventh Circuit rejected this argument finding that even though the plaintiff would eventually recover, his request was essentially an “open-ended request” for leave of a sufficient time to recover, which is not reasonable under the ADA. The Court also noted that the employer did not violate the ADA because it already provided six months of leave and the plaintiff inarguably could not perform the essential functions of his job at the time of his termination, with or without a reasonable accommodation and therefore he was not a qualified individual. Thus, the court found that regardless of the nature of his underlying medical condition and his projected but uncertain recovery, the employer was not required to provide continued long-term leave.
It appears that the Seventh Circuit is not the lone-ranger in its attempt to invalidate the EEOC’s historic and strongly advocated position that long-term leaves are required “reasonable accommodations” under the ADA. If other circuits continue to follow suit, employers may no longer have a legal obligation to provide lengthy post-FMLA leaves of absence, without the need to justify the denial based on specific business needs. This case also demonstrates the importance of requesting updated medical information from employees nearing the end of FMLA or other medical leave periods.
If an employee cannot medically substantiate that they can return to work close to the expiration of their FMLA leave, employers may have greater legal flexibility in determining whether or not to accommodate the request. While employers should be aware of this apparently growing trend and may choose to adjust their leave and accommodation approaches accordingly, they still must approach long-term and indefinite leave requests very carefully as there are conflicting decisions from other circuits and the EEOC’s position will remain unchanged unless the U.S. Supreme Court ultimately sides with the Seventh and Eleventh Circuits.
An IT Accessibility Watchdog?
Inside Higher Ed
Failure to provide accessible technologies for learners with disabilities can have serious consequences for universities. Many institutions have been sued in recent years for noncompliance with the Americans With Disabilities Act, ratcheting up pressure around accessibility issues. As a result, some universities are thinking about how they might work together to test the technology they buy and make sure it is accessible to all.
Students with less visible disabilities struggle for accommodations
Tufts Daily
The unforgiving incline that divides Tufts campus into uphill and downhill is a part of students’ everyday lives and most of the time it is something they grow used to. But for several members of the Tufts community who identify as being physically disabled or physically differently abled, the physical barriers of campus, as well as the physical demands of being a student, are things that they must think about every day.
According to an email from Kirsten Behling, director of Student Accessibility Services (SAS), to the Daily, Tufts refers to the Americans with Disabilities Act (ADA) as a basis for defining disability. The ADA defines disability as a “physical or mental impairment that substantially limits one or more major life activities.”
Couple fights for handicapped parking space in Northeast DC
WJLA
DC couple in their 80s wants disabled parking spot in front of their home.
Sixth Circuit Revives Blind Ohioans' Bid for Voting Tool
Courthouse News Service
The Sixth Circuit breathed new life into an effort by blind Ohio voters to introduce an online voting tool to replace absentee paper ballots for the disabled, finding that state officials did not prove the software would fundamentally change its voting system.