Applicant's failure to communicate regarding testing difficulties dooms reasonable accommodation claim
Because a blind job applicant failed to communicate with her prospective employer regarding the difficulties presented by its required computer testing, she interrupted the ADA's interactive process, a federal magistrate judge in Colorado stated in finding the applicant was precluded from claiming the municipal employer failed to provide a reasonable accommodation. "To hold otherwise," wrote the magistrate "would allow per se liability against an employer each time the initial accommodation provided is ultimately unsuccessful, or ineffective, in enabling the employee to perform the requisite job functions. The ADA's interactive process does not contemplate such liability and the court declines to permit it here." ( McFarland v City and County of Denver, DColo, September 5, 2017, Tafoya, K.)
Move on if employee won't discuss ADA accommodation
Business Management Daily
Employers are supposed to engage in the interactive accommodations process with disabled workers to arrive at workable accommodations. But what if the employee stops communicating with HR about suggested accommodations? Then it is time to move on after documenting your engagement efforts.
Recent case: Mary asked for reasonable accommodations for a disability. But soon, the employer’s suggestions were met with silence. It documented its efforts and then stopped trying to communicate with Mary.
She sued, alleging failure to accommodate. The court dismissed the case, since Mary failed to engage in the interactive process. (Phillips v. Victor Community Support Services, 9th Cir., 2017)
Final note: Always document the initial accommodation request and each contact with the employee and other parties. Be specific. What accommodation did you offer? What was the response? Was there a counter suggestion?
7th Circuit affirms summary judgment for INDOT on ADA discrimination claim
Indiana Lawyer
A former employee of the Indiana Department of Transportation failed to prove he was fired due to his post-traumatic stress disorder diagnosis, so a district court judge properly granted INDOT summary judgment on the employee’s discrimination claims, the 7th Circuit Court of Appeals determined Monday.
As unit foreman for INDOT, Jeff Monroe was charged with supervising night shift employees and helped with the clean-up of human remains after traffic accidents. In addition to his difficult work for INDOT, Monroe faced difficulties in his personal life, including combat service in the Gulf War and losing his sister, who lived with him, to cancer.
Beware firing as employee nears eligibility to take FMLA leave
Business Management Daily
If an employee says she is going to need FMLA leave as soon as she becomes eligible, terminating her may amount to interference with the right to take FMLA leave. That’s true even though she wasn’t eligible for leave when she was fired.
Such a termination may also trigger ADA liability under the “regarded as disabled” provisions of the law.
Recent case: About six months after she started her job, Michele informed her supervisors she had been scheduled to have a hysterectomy to prevent possible cancer. The employer said she could not take FMLA leave because she wasn’t yet eligible, but would be after her one-year anniversary. Michele postponed the scheduled surgery.
Then, a few months later, Michele put in another request to take FMLA leave for surgery as soon as she became eligible. She was terminated before the wait was up.
She sued, alleging both interference with her FMLA leave rights and disability discrimination under federal and Pennsylvania law.
The court said she had FMLA protection because she was requesting leave in the future. It said firing her to prevent her from reaching the one-year milestone violated the FMLA.
Plus, it said her request for time off for surgery to prevent cancer could be the basis for a regarded-as-disabled claim. That’s because one interpretation of the employer’s actions was that it terminated her, believing her underlying condition was disabling if untreated. (Sine v. Rockhill Mennonite Home, ED PA, 2017)
Judge: Northern Valley Regional HS ADA violation claim 'not likely to succeed'
NorthJersey.com
A judge has ruled that a claim of an alleged violation of the Americans with Disabilities Act is "not likely to succeed" in a lawsuit two Northern Valley Regional High School parents filed against the school district.
The parents, Karen Leddy and Anna Danon-Reduce, filed a federal lawsuit on July 18, claiming that the district was discriminating against students with learning disabilities by "discouraging" them from taking AP and honors classes, while offering an "enriched" version of college-prep classes that do not carry extra weight for grade-point averages. The parents alleged this was affecting college prospects of their children with learning disabilities.
Hemet man joins lawsuit that alleges Brookdale Senior Living puts profits above care
Press-Enterprise
The lawsuit claims that Brookdale has failed to make accommodations required by Americans With Disability Act and hasn’t provided equal access to disabled residents; understaffs its facilities; administers medications incorrectly; overcharges its residents; and does not regularly change its residents’ clothes or provide baths.
Lexology
Connecticut employees using medical marijuana for certain debilitating medical conditions as allowed under Connecticut law for “qualified users” are protected under state law from being fired or refused employment based solely on their marijuana use. Employers who violate those protections risk being sued for discrimination, according to a recent federal district court decision.
Red Wing and Minnesota businesses facing ADA complaints
Republican Eagle
A recent surge in Americans with Disabilities Act complaints has pushed employers to search for solutions to their current barriers. The legal notices accuse business owners of a variety of issues with the main one being poor parking for handicap accessibility. A few others include no access to public restrooms or poor handicap access to building.
Red Wing Area Chamber of Commerce hosted a seminar Wednesday, Sept. 13, to discuss the current ADA compliance issues and steps to help work on a solution. The ADA, an unfunded mandate, was passed by Congress in 1990. But over the past three years, compliance issues have been under the spotlight, not only in Red Wing but across the region.
Businesses in Red Wing, such as Dominos and Bierstube, sent representatives to the meeting to learn about making their establishments more handicap accessible. Those facing the sense of urgency to remove barriers at their business typically have 60 days to fix an issue before a lawsuit can be issued.
EEOC Issues New Guide to Assist Federal Agencies to Provide Personal Assistance Services (PAS)
The U.S. Equal Employment Opportunity Commission (EEOC) today announced the release of a Questions and Answers Guide to assist federal agencies to provide personal assistance services (PAS) under Section 501 the Rehabilitation Act of 1973, which is available on the EEOC's website.
In January 2017, the EEOC amended the regulations implementing Section 501 of the Rehabilitation Act, the law that prohibits the federal government from discriminating in employment based on disability and which requires it to engage in affirmative action for persons with disabilities.
The amended regulations require the provision of PAS to individuals who need them because of certain disabilities. These are services that help persons who because of those disabilities, require assistance to perform basic activities of daily living. This document answers common questions about this provision of the revised regulations.
"This resource is designed to answer questions as federal agencies implement this provision," said Carlton M. Hadden, director of EEOC's Office of Federal Operations (OFO).
The public may also receive federal sector information updates and news items via GovDelivery and Twitter.
The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.