ADA in thew News October 9, 2019

Settlement Agreement: Athena Health Care Systems

Reliable Staffing to Pay $25,000 and Change Hiring Policy to Resolve EEOC Discrimination Finding

 Reliable Staffing, an Indianapolis staffing firm, will pay $25,000 and furnish other relief to conciliate a disability discrimination charge by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced.

The EEOC's investigation revealed that job applicants were subjected to pre-offer medical inquires and that Reliable Staffing refused to hire a class of job applicants because of the information unlawfully obtained during those inquiries. The investigation also found that Reliable Staffing failed to maintain protected medical information in a confidential manner, on separate forms and in separate files from regular personnel records, as required.

Such alleged conduct violates the Americans with Disabilities Act (ADA). Reliable Staffing chose to voluntarily resolve the matter with the EEOC, without an admission of liability, to avoid an extended dispute.

The conciliation agreement provides relief to a class of affected individuals, and the EEOC retains discretion to distribute the funds to individuals it has yet to identify. The agreement also calls for Reliable Staffing work with four disability-related advocacy groups to learn how to break down barriers to employment for people with disabilities. The company affirmed that it has ceased and will not resume subjecting job applicants to pre-offer medical inquiries, and it will continue to maintain applicant and employee protected medical information in a confidential manner, separate from personnel files. In addition to the policy and procedure changes, Reliable Staffing will give ADA training to all managers, supervisors, human resource personnel and any other individuals involved in the hiring process.

"Employers must ensure that their policies and practices regarding hiring and the maintenance of employees' medical records comply with federal law," said EEOC Indianapolis District Director Michelle Eisele. "The EEOC is fully committed to enforcing the rights of employees and applicants with disabilities."

Wisconsin Republicans offer rule changes to accommodate lawmaker with disabilities

Republican leaders in the state Assembly say they're planning to change their chamber's rules to better accommodate a Democratic lawmaker who's paralyzed from the chest down. 

The updated rules would allow certain lawmakers, including Rep. Jimmy Anderson, D-Fitchburg, to call in to meetings, a practice that's currently prohibited in the Assembly. They would also seek to limit the amount of time lawmakers are on the floor during session dates, another ask from Anderson.  

The move comes after a heated back-and-forth over the summer, during which Assembly Speaker Robin Vos, R-Rochester, accused Anderson of  “political grandstanding” following a Milwaukee Journal Sentinel report on the issue and declined to let him call into meetings, instead offering to have a videographer present for certain public hearings. 

Urgent Care Facility In Norwalk Reaches ADA Settlement With Feds

AFC Urgent Care, which was facing allegations that its facility was not operating in compliance with the American with Disabilities Act of 1990, has reached a settlement over the issue with United States Attorney John Durham.

Under the terms of the settlement agreement, AFC Urgent Care Norwalk will submit for approval to the U.S. Attorney's Office a nondiscrimination policy that outlines AFC Urgent Care Norwalk's obligations pursuant to Title III of the ADA and sets forth a patient grievance procedure, according to Durham.

Once approved, AFC Urgent Care Norwalk will post the nondiscrimination policy on its website and will also physically post the policy in public view at AFC Urgent Care Norwalk's office, which is located on Main Avenue. Additionally, AFC Urgent Care Norwalk will train its staff members on Title III of the ADA and the new nondiscrimination policy.

Revoking conditional job offer to legally blind applicant did not violate ADA
A chicken processing plant operator did not violate the ADA when it revoked a conditional job offer to a legally blind applicant after learning about his limitations during the medical screening process, a federal court in Georgia ruled, granting summary judgment against his claims. Weighing, measuring, and mixing seasoning and other ingredients and operating and monitoring machinery were essential functions of the job for which he had applied and his eye doctor specifically reported he could not work with machinery and equipment or do tasks requiring "good vision," observed the court, finding he was not a qualified individual under the Act (Rogers v Norman W. Fries, Inc, dba Claxton Poultry Farms, SDGa, September 27, 2019, Baker, R.)

Despite data security concerns, remote work might be reasonable accommodation for appraiser with MS
Although an appraisal management company argued that it rescinded an employee's ability to work remotely because reviewing appraisals on a computer at home risked compromising confidential information, a reasonable jury could find it denied an otherwise qualified employee a reasonable accommodation for her disability—multiple sclerosis—a federal court in Michigan ruled, denying summary judgment on her ADA claim. Nor was the employer entitled to summary judgment on the employee's interactive-process claim, said the court, noting that a reasonable jury could also find the company, and not the employee, was the stumbling block to identifying an accommodation that worked for both sides. (Masters v Class Appraisal, Inc, EDMich, September 23, 2019, Michelson, L.)

The courts have ruled: Mobile sites must be accessible. But why did enterprises ever resist?

It's a mystery because being more accessible is just good for business.

A Hospice Nurse Started Chemo. Then Her Employer Fired Her

This summer, on June 25, Chrissy Ballard, RN, was lying on the couch at home in Nolensville, Tennessee, not feeling well, having recently finished a round of chemotherapy for her breast cancer.

Ballard had also just done 10 hours of cold-capping to prevent chemo-related hair loss (at –38° F), and in recent weeks gained 20 pounds from steroid therapy. The former college basketball player, now 48, was at a low point with "chemo brain," shortness of breath, joint swelling, limited mobility, and symptoms of diminished liver, heart, and kidney function.

Chemotherapy "brings you to what feels like death — that is the goal, to kill an aggressive cancer," she told Medscape Medical News.

Her husband Matt Ballard approached Chrissy after getting off the phone with her boss. He had news: Caris Healthcare, where she was hospice admissions nurse in their Nashville facility, was going to fire her. Two days later on June 27, the hospice company made it official: She was terminated.

"It was very confusing to me — I thought it was a mistake when my husband first told me," she said.

The confusion arose out of her understanding — and embrace — of Caris' The Better Way, a list of 20 promises that employees must fulfill every day, including the commitment "to do what is right."

"What I felt in that moment [of being fired] is: This is not right," Chrissy told Medscape Medical News.

"Something's Gotta Change"

Chrissy Ballard's being fired by Caris Healthcare, first reported by The Tennesseanwas not the first time the company has been the subject of critical news stories.

One month before Ballard began employment at Caris in July 2018, the company, which was accused of Medicare fraud by the Department of Justice (DOJ), agreed to pay $8.5 million to settle the allegations.

Caris allegedly certified and admitted patients for hospice care who were ineligible for Medicare's hospice benefit (ie, they were not terminally ill).

The alleged Medicare fraud was driven by "aggressive admissions and census targets set by the company," said the DOJ last year.

When Ballard started work, the problems with federal authorities were behind Caris, a for-profit company with 28 hospices in Georgia, Missouri, South Carolina, Tennessee, and Virginia.

In the early days of Ballard's tenure, the census at the Nashville facility was regularly between 50 and 60 patients. But business was booming and just months after Ballard's arrival, the census rose to around 100 patients, she said. (Caris said the facility has an average census of 75 patients.)

As a hospice admissions nurse, Ballard traveled regionally to meet seriously ill patients and transition them from homes, rehabilitation facilities, and hospitals to the Caris hospice. But she also helped out with direct patient care because of the rising census and a shortage of nurses, she said.

Unequal Access

Fourth-year Brittney Dorton spent the first 18 years of her life in a relatively normal body. 

She was diagnosed with Ehlers-Danlos Syndrome (a group of inherited disorders that mostly affect skin, joints, and blood vessels) in high school, but was told by her doctor that the syndrome was not serious. While attending high school, Dorton frequently swam and ran half marathons. Oftentimes, in participating in these activities, she accidentally dislocated her shoulder and knee sockets and would casually pop her joints back into place. “I [thought] everything’s just so loose that it’s really easy for that to happen,” Dorton said. “Bodies are supposed to do that.” 

However, five days before her supposed college move-in day, Dorton was confronted with the nasty realization that bodies should not. One second she was standing. Pop. Suddenly, Dorton was not. Her doctors told her that she tore her ligament, and that they only ever witnessed a tear as deep as hers from car accidents. Dorton had to go through an extensive surgery to reconstruct her knee. She would have to learn how to walk all over again. The accident also left her with complex regional pain syndrome, a chronic condition in which the body’s nervous system perpetually sends and amplifies pain signals to the brain, giving Dorton a constant burning sensation from the injured area.  

When Dorton told the College about her predicament, the College told her that she should not come to school, because they could not promise her the level of accessibility she needed for housing, classes, and transportation.

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