United States: How Much Leave Is Too Much? Determining When An Employer May Deny Or Stop An Extended Medical Leave Of Absence
Mondaq News Alerts
Employers continue to face challenges managing employee requests for additional or extended medical leaves of absence for employees who are not eligible for or have exhausted FMLA leave. The Equal Employment Opportunity Commission ("EEOC") and many federal courts have found that unpaid leave may be a form of reasonable accommodation under the Americans with Disabilities Act ("ADA") even when FMLA leave is not available if the employee will likely be able to perform the essential functions of his or her position upon return. Because employee leaves and accommodation requests are fact specific and analyzed on a case-by-case basis, courts have been reluctant to place definitive limits on the length of employee leaves as reasonable accommodations. As a result, employers are often uncertain on whether an additional or extended leave of absence request must be granted and when they can finally say "enough is enough."
Blind NY resident sues NU over website accessibility
The Huntington News
On Nov. 15, 2018, Jason Camacho filed a lawsuit against 50 universities across the country, including Northeastern. He alleged that the colleges are violating the Americans with Disabilities Act, or ADA.
Camacho, who lives in Brooklyn, New York, is blind. In order to browse the internet, he uses a screen reader, which allows visually-impaired individuals to receive the text on the screen through speech synthesizers or braille displays. Camacho claims that he encountered barriers while trying to access university websites with his screen reader.
Ninth Circuit Reinforces Accessibility Requirement for Websites and Apps Under ADA
Lexology
Any company doing business on the West Coast must be aware of the Americans With Disabilities Act (ADA) and how it applies to their website. Now, following a flurry (if not frenzy) of cases, the Ninth Circuit Court of Appeals has reversed a California federal court’s ruling that dismissed a claim by a consumer that Domino’s website and mobile application were not fully accessible to blind or visually impaired users who rely on screen-reader software. Robles v. Domino’s Pizza, LLC, No. 17-55504 (9th Cir. Jan. 15, 2019).
In doing so, the Ninth Circuit concluded that the ADA put places of public accommodation on “fair notice” of their obligation to provide accessible websites and apps, at least when these websites and apps are used in conjunction with a physical location.
Ninth Circuit Rejects Due Process and Primary Jurisdiction Arguments in ADA Website Accessibility Case
The National Law Review
In Robles v. Domino’s Pizza LLC, No. 17-55504 (9th Cir. Jan. 15, 2019), the 9th U.S. Circuit Court of Appeals reversed a district court’s dismissal of the plaintiff’s ADA claim pursuant to the primary jurisdiction doctrine due to the lack of website accessibility regulations from the Department of Justice. In doing so, the Court issued three important rulings.
First, to the extent there was any doubt, the Court held that the ADA applies to websites of places of public accommodations if there is a sufficient nexus between the website and a physical brick and mortar location. Second, the Court held that applying the ADA to websites does not violate the Fourteenth Amendment right to due process merely because DOJ has not implemented specific regulations setting forth a technical standard for website accessibility. Third, the Court held that the district court erred in dismissing the case under the primary jurisdiction doctrine because DOJ has expressed no interest in promulgating regulations governing website accessibility and, therefore, deferring to the DOJ would delay the resolution of the plaintiff’s claims.
ADA protections remain unsettled for transgendered employees
NewsOK.com
Protections remain unclear for transgender employees
Q: The Americans with Disabilities Act (ADA) requires covered employers to provide reasonable accommodations to employees with disabilities. More and more, employers are receiving requests for accommodations related to an employee's transgender status. Does the ADA expressly address whether being a transgender person is a disability?
A: The ADA defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities of [an] individual.” The ADA expressly excludes “gender identity disorders not resulting from physical impairments” from the definition of disability. For years, many believed this exclusion settled the issue and concluded that any medical issues associated with being a transgender person are not protected by the ADA. However, many people inside and outside the legal industry have called into question the correctness of such a conclusion.
Indeed, the term “gender identity disorder” has become outdated in the medical profession. In 2013, the American Psychiatric Association removed the term from its Diagnostic and Statistical Manual of Mental Disorders and added “gender dysphoria” — a term not found in the ADA — as the proper diagnosis of a person suffering from significant distress or impairment in social, occupational or other important areas of functioning due to their gender identity. Employers are less likely now to come across an employee diagnosed with a “gender identity disorder.” Accordingly, it is no longer clear as to whether the ADA's express language excludes from the definition of disability all medical conditions related to a person being transgender.
Q: Have any courts held that the ADA protects transgender-related medical conditions?
A: At least one federal court has held that the term “gender identity disorders,” as used in the ADA, refers only to the situation in which a person identifies with a gender other than that assigned to them at birth; it does not refer to gender dysphoria (i.e., suffering from significant distress or impairment due to one's gender identity). In other words, a person is not disabled because they are a transgender person, but they might be disabled for ADA purposes if they are suffering from gender dysphoria. It should be noted that there are other courts that have rejected such a narrow interpretation of “gender identity disorders.” But, the above ruling definitely signals that the law on this issue is far from settled.
Q: If the ADA isn't clear on the issue and courts disagree on the issue, what should employers do when transgender employees request an ADA accommodation?
A: Employers should proceed with caution. The ADA requires an employer to engage in an “interactive process” any time it becomes aware that an employee might have a disability that requires a reasonable accommodation. This is an informal process by which the employer communicates with the employee, the employee's health care provider, and/or the employee's supervisor to determine if the employee has a covered disability and whether a reasonable accommodation exists that will allow the employee to perform their job duties. An employer should not disregard a request for accommodation from a transgender person without proceeding through this interactive process.
A person diagnosed with gender dysphoria also may be diagnosed with anxiety, depression or other conditions that are undoubtedly covered by the ADA. An employer only can discover the true nature of the physical impairment, and thus determine if it is a disability for which a reasonable accommodation is needed, by engaging in the interactive process. As with all human resources issues, this process should be thoroughly and accurately documented as such documentation will be “evidence” of the employer's commitment to the employee and compliance with the law.
Be There or Be Square - Eighth Circuit Affirms Summary Judgment in Favor of Employer Based on Attendance Policy
Lexology
When considering a position’s requirements and responsibilities, most people would assume that attendance is a given. Before any other job duties can be fulfilled, an employee must actually come to work. However, since individuals increasingly perform their job duties away from their employer (think technology, work-at-home policies, virtual positions, etc.), attendance has slowly but surely become a regularly contested issue in disability discrimination cases. In Lipp v. Cargill Meat Solutions Corporation, the Eighth Circuit reiterates how critical attendance is in evaluating whether an individual with a disability is a qualified individual under the Americans with Disabilities Act.
Walmart is cracking down on shoppers who abuse its service-animal policy (WMT)
Laredo Morning Times
Walmart is posting signs in stores in order to clarify its policy on bringing animals inside. The signs read: "Service animals welcome. No pets." Walmart told Business Insider that this isn't a new policy, but that the signs are meant to remind shoppers of the rule. Walmart is reining in shoppers who abuse the company's service animal policy. Florida Today reported that the retailer added signs to stores around the US that read: "Service animals welcome. No pets."
Guest column: How your business website could land you in trouble
Memphis Business Journal
Most companies are familiar with the Americans with Disabilities Act (ADA), which prohibits discriminating against qualified individuals with disabilities in employment. It requires that reasonable accommodations be offered absent a showing of undue hardship.
Title III of the ADA prohibits places of public accommodation, such as restaurants and retail, from discriminating against disabled persons with respect to the goods and services they offer. It also requires covered businesses to eliminate barriers that prevent disabled persons from having equal access to goods and services.
While most litigation under Title III has been about barriers to physical access to goods and services offered at store locations, the past two years have witnessed a wave of lawsuits alleging violations in another realm: inaccessible websites. Some recent lawsuits have also alleged violations of the ADA due to inaccessible mobile apps or mobile websites.
The typical lawsuit alleges that a blind or visually impaired person was unable to effectively access a covered business’ website with a screen reader, which resulted in their inability to enjoy equal access to the goods and services offered by the business.
While the U.S. Department of Justice (DOJ) has published regulations that provide detailed compliance specifications for physical places of public accommodation under Title III, the DOJ has not issued regulations providing standards for website accessibility. The lack of clear guidance from the DOJ has arguably contributed to the increase in Title III website lawsuits. The DOJ recently confirmed that websites of public accommodations must “comply with the ADA’s general requirements of nondiscrimination and effective communication,” although they have “flexibility” in how to comply in the absence of regulatory guidance.
The World Wide Web Consortium (W3C) has created recognized, voluntary international guidelines for web accessibility. W3C’s Web Content Accessibility Guidelines (WCAG 2.0) provide guidance on how to make web content accessible to individuals with disabilities.
While the law in this area is still developing, some courts have found violations of the ADA when a website — while not a public accommodation — provides a gateway to the goods and services that are offered at the physical location but are inaccessible to disabled persons.
These courts reasoned that the websites at issue allowed customers to locate physical store locations, download coupons, purchase gift cards online, and learn about the goods and services offered at the physical locations. A few courts have gone a step further and found that websites are places of public accommodation, even though they are not physical locations.
Because of these decisions finding that inaccessible websites violate the ADA, retail and other business establishments covered by Title III should have their websites (and mobile apps and mobile websites) tested to ensure that they are accessible by disabled persons. The testing and resulting remediation efforts, if necessary, should be documented for use if litigation ensues.
Despite the absence of regulations from the DOJ, businesses can look to W3C’s Web Content Accessibility Guidelines for help in remediating inaccessible websites (and mobile apps and mobile websites) to mitigate the risk of a Title III lawsuit.