Appeals court reinstates Phoenix probation officer’s ADA lawsuit
A federal appeals court has overturned a lower court and reinstated an Americans with Disabilities Act lawsuit filed by a Phoenix probation officer who was terminated after she asked for extended medical leave.
Nannette Hummel, who had begun working as an adult probation officer with the Maricopa County Adult Probation Department in 2005, requested Family and Medical Leave Act leave to undergo and recover from partial knee replacement surgery, according to Wednesday’s ruling by the 9th U.S. Circuit Court of Appeals in San Francisco in Nannette G. Hummel v. Maricopa County Adult Probation Dept.
Ms. Hummel was terminated by the department in 2014 after she asked for extended leave, according to court papers. She filed suit, charging violation of the ADA for terminating her employment instead of either granting her request for extended medical leave or assigning her to light duty.
The U.S. District Court in Phoenix granted the county summary judgment in dismissing the case on the basis that, according to the county, field work was one of several essential functions Ms. Hummel could not perform and she was therefore not a qualified individual under the ADA.
The ruling was overturned by a unanimous three-judge appeals court panel. The ADA prohibits an employer from discriminating “against qualified individuals on the basis of disability,” the ruling said.
“Contrary to the district court’s conclusion, Hummel is not precluded from being a ‘qualified individual’ simply because she was unable to perform essential functions of her position at the time of her termination,” it said.
“It appears the district court erroneously failed to consider whether Hummel’s leave extension request was a reasonable accommodation that would enable her to perform the essential functions of her position,” the panel said in reversing the lower court and remanding the case for further proceedings.
Attorneys in the case had no comment.
Dealing with Employee Protests and Strikes due to COVID-19 Concerns
Can requests for PPE or to stay home raise issues under the ADA?
ADA Reasonable Accommodation Request
There may also be employees who invoke the Americans with Disabilities Act (ADA) as a means of seeking an alteration to their normal working conditions. Generally, under the ADA, an individual is considered “disabled” if an impairment substantially limits one or more “major life activities,” which includes the functions of the immune system — i.e., an impairment that limits the immune system will qualify as a disability under the ADA. These disabilities can be the result of certain cancer treatments, persistent viral infections, or genetic disorders that suppress the immune system. Moreover, because of the low bar for qualifying as disabled and the long list of risk factors associated with COVID-19, like asthma and diabetes, large portions of the population may have the right to request a disability related accommodation in this context.
Employees who qualify as disabled may claim to be particularly susceptible to infection and thus require a modification of their workplace or working conditions as an accommodation. Once an employee makes a request for an accommodation, it is incumbent on the employer to engage in an interactive process with the employee to assess their particular limitations, and whether an accommodation can be provided. The important things to remember here are that a request for an accommodation may be subtle or implied, and the process used to decide whether an accommodation can be made is just as important as the ultimate decision.
Although each situation will likely call for a particularized analysis, some steps that employers have taken to accommodate employee requests in this area are:
· Providing enhanced PPE;
· Increased social distancing and sanitation measures;
· Modification of schedules (i.e. rolling or staggered shifts);or
· Working from home.
Of course, the accommodation has to be reasonable and cannot impose an undue burden on the employer. An employer is not required to create a new position to accommodate a disabled employee and cannot be forced to supplant other employees from their positions. Also, an employee must be qualified for the position to which they seek to be reassigned. If the employee is qualified for a number of suitable alternative positions, then the employer can choose among those options, so long as it is reasonable.
In most circumstances, an employee cannot simply refuse to work because of a disability, but it might be reasonable to grant a temporary leave of absence. If they are unable to work because their disability puts them at too great a risk to physically appear at the jobsite, the employee may also be entitled to Emergency Sick Pay under the Families First Coronavirus Response Act and job protection under the FMLA and ADA.
Disability rights advocates ask governor to make sure those with disabilities have equal access to healthcare
Disability rights advocates are asking Governor Andy Beshear to help make sure Kentuckians with disabilities have equal access to healthcare during the COVID-19 pandemic.
Kentucky Protection & Advocacy, a client-directed disability rights agency, along with individuals with disabilities, their family members, interested associations, and groups wrote to Beshear on April 7 to request the Commonwealth provide guidance in the event there are not enough medical supplies to care for all COVID-19 patients.
Does Your Website Pass the Compliance Test?
What do Burger King, Harvard, and Hobby Lobby Stores, Inc. have in common? They have all been sued for their website’s lack of meeting the Web Content Accessibility Guidelines (WCAG) in relation to the Americans with Disability Act (ADA).