ADA in the News September 3, 2019

Settlement Agreement: ProMedica Health System

Tallahassee Memorial Hospital to Pay $375,000 to Settle EEOC Disability Discrimination Suit

Tallahassee Memorial Healthcare, Inc., a private community healthcare system comprised of 2 hospitals, multiple specialty care centers, three residency programs, and 32 affiliated physician practices, will pay $375,000 to a class of employees and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced.

The EEOC charged in its lawsuit that Tallahassee Memorial violated federal law by maintaining an inflexible 12-week maximum leave policy. The EEOC also alleged that when employees with disabilities requested additional leave beyond the Family Medical Leave Act (FMLA), Tallahassee Memorial denied the requests, rather than engaging in an interactive process with each individual to determine if he or she could be accommodated.

Such alleged conduct violates the Americans With Disabilities Act (ADA), which prohibits employers from refusing to provide reasonable accommodations to employees with disabilities. The EEOC filed its suit (Civil Action No. 4:19-cv-00417-MW-CAS) in U.S. District Court for the Northern District of Florida in Tallahassee after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to the $375,000 in monetary relief, the consent decree settling the lawsuit provides for extensive injunctive relief to help secure a workplace free from disability discrimination. This includes Tallahassee Memorial appointing a trained ADA Coordinator that will make all decisions concerning requests for reasonable accommodations, conducting mandatory training for human resources personnel, managers and employees, and reporting of all requests for reasonable accommodations denied by Tallahassee Memorial to the EEOC. In addition, Tallahassee Memorial has changed its leave policy such that it will determine on an individualized basis whether employees with disabilities can be accommodated by additional leave beyond the FMLA.

Evangeline Hawthorne, director of the EEOC's Tampa Field Office, said, "The ADA requires employers to assess each employee's request for an accommodation on an individualized basis, rather than having blanket policies that apply across the board."

Robert Weisberg, regional attorney for the EEOC's Miami District added, "We are pleased that Tallahassee Memorial worked with us to craft a positive resolution that not only compensates the class for their losses, but also provides for policy changes designed to protect current and future employees from disability discrimination."

American Airlines passengers’ shock as traveler takes miniature HORSE onto flight

According to the American Airlines website, trained miniature horses are permitted on flights as service animals.

In mid-August, the US Department of Transportation announced that miniature horses still were allowed to fly as service animals in all cabins of commercial planes, in a statement aiming to define the guidelines regarding protections for emotional support and psychiatric service cats, dogs and the tiny equines.

The announcement didn’t bind airlines to fly all service miniature horses by law, but did allude to penalties if carriers violated the new rule, WWJ reported. The Department of Transportation had not banned mini horses previously.

Making business websites ADA compliant

Members of the Carmel Chamber of Commerce recently received a “business alert” from the agency notifying them of lawsuits being filed regarding the Americans with Disabilities Act non-compliance of business websites.

According to the alert, the action is similar to what the city’s hotels and inns experienced last fall and, Jenny MacMurdo, Carmel chamber president and CEO, states “this is an urgent matter, so please make sure you’ve addressed your website ASAP.”

Practical Tips and Tools for Maintaining ADA-Compliant Websites

Title III of the ADA, enacted in 1990, prohibits discrimination against disabled individuals in “places of public accommodation”—defined broadly to include private entities that offer commercial services to the public. 42 U.S.C. § 12181(7). Under the ADA, disabled individuals are entitled to the full and equal enjoyment of the goods, services, facilities, privileges, and accommodations offered by a place of public accommodation. Id. § 12182(a). To comply with the law, places of public accommodation must take steps to “ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals.” Id. § 12182(b)(2)(A)(iii).

Genetic Testing Is Like a GPS Tool for People with Huntington’s

My wife, Jill, now sees genetic testing as the equivalent of a GPS. When you need to find out what illnesses run in your family, all you have to do is turn it on. Once it’s on, it gives you direction in life, and if used correctly, gets you where you need to go by helping you make some difficult decisions. Jill wishes that everyone had access to genetic testing as much as we have access to GPS.

In the past, whenever Jill spoke about genetic testing, she outright refused to consider it. She watched her father lose his job because of Huntington’s and was terrified of the same thing happening to her. She said that if she did have it, our daughter, Alexus, would have a 50 percent chance of having it as well. Most of all, she didn’t want to know how she was going to die.

Jill has a completely different view of genetic testing today. She believes that decisions about health and future should not be made from a place of fear. According to her, the fear of genetic testing was worse than the fear of having Huntington’s.

Jill’s fear of getting tested was based on well thought out facts, or so she thought. Her biggest fear was getting fired, but Jill’s father was wrongfully terminated and could have sued. He was protected by the Americans with Disabilities Act (ADA), a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including work.

The ADA ensures that people with disabilities have the same rights and opportunities as everyone else. Title I of the ADA requires employers to provide reasonable accommodations to qualified applicants or employees. A reasonable accommodation is any modification or adjustment to a job or work environment that will enable an applicant or employee with a disability to participate in the application process or perform essential job functions.

Now that Jill knows that she is gene-positive, her fear is gone. She realizes that she is better off with a diagnosis, as she is protected by the ADA and no longer has to keep her Huntington’s a secret.

Jill didn’t want to give our daughter something to worry about if she did test positive, but she admits that she was anxious about Huntington’s all the time, to the point where it became debilitating. Our daughter had the same fears. As odd as it sounds, they both say their minds are much more at peace now that they know.

Because she knows that Huntington’s is probably going to contribute to her death, her diagnosis helps her plan how she is going to live. For example, she knows that stress exacerbates her symptoms. She also knows that exercise strengthens the muscles that Huntington’s will eventually affect.

In other words, Jill tries to enjoy the things she wants to do today instead of putting them off until tomorrow, because she may not be able to later on. Now that she sees genetic testing as a kind of GPS, she hopes other people will see it as a guide to help them navigate the future.

What are my rights as a disabled person looking for work?

I have a disability and am looking for office work. What kind of accommodations can I reasonably request?

The Americans with Disabilities Act (ADA) says employers must make reasonable accommodations for employees to perform the essential functions of the job, but doesn’t say what is covered. First, you must be qualified to perform the functions of the job with or without an accommodation. If not, the employer has the right not to consider you. In addition, an employer is not required to make an accommodation that would impose “undue hardship” which is “an action requiring significant difficulty or expense.” Some reasonable accommodations include modifying work schedules or nonessential functions; acquiring or modifying equipment, or modifying training or programs. The responsibility is yours to explain what you need or to engage in a dialogue to come up with an effective accommodation. Many “Best Employer Lists” highlight employers who take great pride in providing accessibility, so do some research.

I have a disability that I did not tell my employer about. Can he fire me if he finds out? Am I obliged to tell him?

Your employer could fire you — I’ve seen employers do many such stupid things — but if he did, you would likely not have to work again for a long time because of the settlement you would receive. If things were going well before they knew you had a disability, and then suddenly you find yourself suffering adverse action (pay, promotional opportunities and so on) you would have a strong case because the ADA protects employees from discrimination. And no, you are not obliged to reveal your disability. However, if your employer is not made aware of your disability and you require an accommodation to perform your job, and your employer subsequently fires you for poor job performance, they are not violating the law, because they didn’t know and you are being judged on your job performance. So, while you are not obliged to tell your employer that you have a disability if it isn’t obvious, you won’t have the rights and protections under the ADA if you don’t.

The Power of Employment

According to West-Potter, the unemployment rate of people with mental illness is at 80 percent and according to West-Potter, 67 percent of them want to work.

“A lot of people don’t realize it’s [mental illness] covered under ADA,” she said. “There are accommodations people can get at work to make sure they are successful.”


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