Horizontal Well Drillers to Pay $650,000 to Settle EEOC Age And Disability Discrimination Suit
Oklahoma Drilling Contractor Refused to Hire Older Rig Hands and Fired Employee Because of Disability After Conducting an Unlawful Medical Exam, Federal Agency Charged
Horizontal Well Drillers LLC (HWD), a Purcell, Okla.-based oil and gas drilling contractor, will pay $650,000 to a fired worker and hundreds of unsuccessful job applicants to resolve a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.
According to the EEOC's lawsuit, HWD hired Wilbert Glover as a rig hand before forcing him to undergo an unlawful medical exam and then fired him based on health information it obtained from the exam. The agency also alleged HWD rejected rig hand applicants who were older than 40 because of their age.
Such alleged conduct violates the Americans with Disabilities Act (ADA), which restricts the use of medical exams in employment and prohibits employers from taking adverse employment actions against individuals because of disabilities. These alleged actions also violate the Age Discrimination in Employment Act (ADEA), which protects applicants and employees who are 40 and older from discrimination because of age. The EEOC filed its lawsuit (Equal Employment Opportunity Commission v. Horizontal Well Drillers LLC, No. 17-cv-0879-J) in August 2017 in U.S. District Court for the Western District of Oklahoma after first attempting to reach a pre-litigation settlement through its conciliation process.
Enlivant / Assisted Living Concepts to Pay $66,000 to Settle EEOC Disability Accommodation Suit
Assisted Living Concepts, LLC, doing business as Enlivant, a national owner and operator of senior living facilities, has agreed to pay a former chef $66,000 and is making significant changes to its human resources programs to enhance compliance with the Americans with Disabilities Act (ADA). These terms are part of a settlement of a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).
According to the EEOC, Meeka Henderson worked as a chef at the North Brook Place facility in Dallas, which was owned and operated by Assisted Living Concepts / Enlivant. After beginning a medical leave of absence, and just one day prior to a scheduled surgery, Henderson was told that if she did not return to work without restrictions by a certain date, she would be terminated. The EEOC said that when Henderson couldn't return to work without restrictions on the required date, Enlivant fired her.
Such alleged conduct violates the Americans with Disabilities Act (ADA), which protects employees from discrimination based on their disabilities and requires employers to make reasonable accommodations to employees' disabilities. The EEOC sued in U.S. District Court for the Northern District of Texas (Civil Action No. 3:19-cv-2304-L) after first attempting to reach a pre-litigation settlement through its conciliation process.
In addition to the monetary relief to be paid to Henderson under the two-year consent decree, signed by U.S. District Court Judge Sam A. Lindsay, the assisted living provider has also agreed to training of human resources directors and managers and will disseminate policies that specifically address the ADA accommodation issues. Online training for employees will also be planned. Subsequent to the filing of the EEOC charge by Henderson, Enlivant sold the business operation at North Brook in McKinney, Texas, and no longer employs the individuals the EEOC identified as responsible for the discriminatory decisions.
Handling The Coronavirus In Your Tire Dealership
The analysis for employee leave can get very tricky. Further, changes in governmental guidance and even in the underlying laws are occurring on almost a daily basis, which will affect the legal analysis of issues related to COVID-19.
Disability Will Be Part Of The New Normal
Predicting the highlights of the post-pandemic new normal is the new rage. But how should we begin to think about the new normal for people with disabilities? With “abnormal” a common stand-in for “disabled,” let’s jettison the “ab.” Disability is normal, even common, affecting some 20% of the U.S. population. The only abnormal part of disability is that much of society still blanches at moving beyond lip service or grudging regulatory compliance when it comes to providing access to the disabled in normal work, school and social environments.
As unwelcome and threatening as the novel coronavirus is, its arrival during the run-up to the 30th anniversary of the passage of the Americans with Disabilities Act commands attention. By forcing people all over the U.S. to shelter in place, this virus is introducing America to how so many people with disabilities lived their lives before the passage of the ADA–and so many who still do. People with vision, hearing, mobility and cognitive challenges to functionality have found themselves living out their days inside walls that they were forbidden, unable or expected never to leave, stretching back into history. To encounter the disabled out and about was to fear contagion.
Now, with contagion ubiquitous and invisible, everybody is inspiring that fear in everybody else. That, unfortunately yet hopefully, is just the interim normal. When it does give way, it will be up to all of us to reshape normalcy so that it really is the norm. These are all essential components of what the new normal for people with disabilities should become as the new normal for everyone takes shape in the wake of a less menacing viral environment. Actually, it looks like what the new normal for all should be.
Back To Business After COVID-19: Addressing Disability Accommodation Requests In New York
Though the Equal Employment Opportunity Commission (EEOC) has yet to find that a COVID-19 diagnosis, in and of itself, would be considered a disability under the Americans with Disabilities Act (ADA), the New York City Commission on Human Rights has stated that in many cases a COVID-19 infection would meet the definition of a disability under the New York City Human Rights Law. Accordingly, under the ADA and the New York State and City Human Rights Laws, employers must provide employees who have a disability with reasonable accommodations to allow those employees to perform the essential functions of their jobs unless doing so would cause an undue hardship. As employees return to the workplace, employers should anticipate an increase in accommodation requests, directly and indirectly related to COVID-19.
There are a number of concerns that employers should address as they prepare to reopen for business. In our prior alert, we addressed issues related to rehiring employees. But employers should also prepare now for increased requests from employees for reasonable accommodations related to COVID-19.
Leave as a Reasonable Accommodation
Courts have generally found that unpaid leave may be a reasonable accommodation for an employee’s disability that will not place an undue burden on an employer. This requirement to provide unpaid leave as an accommodation applies even after an employee has used any leave that may be available to them for absences related to COVID-19 under new or existing federal, state or local laws. If an employer is covered by the federal Families First Coronavirus Response Act, employees will be immediately eligible for emergency sick leave upon rehire, and eligible for up to 10 weeks of expanded Family and Medical Leave 30 days after rehire, or immediately if the employee was terminated on or after March 1 and had worked for the employer for at least 30 of the prior 60 days before termination. Employees will also be eligible for leave under New York State’s COVID-19 leave law upon rehire. New York City employees who are rehired within six months of termination must be provided with whatever time they had accrued under the Earned Safe and Sick Time Act prior to their termination, unless the employees were paid out for such time upon termination.
Remote Working as an Accommodation
Prior to the COVID-19 pandemic, employees frequently requested to work from home as an accommodation for a wide variety of disabilities. Employers that have denied these requests in the past need to be prepared to reconsider them, and anticipate new requests for remote work, after their physical workplaces reopen. COVID-19 has forced employers to come up with creative solutions to allow their businesses to continue. These solutions have included figuring out ways to allow employees to perform jobs remotely out of necessity that, just a few months ago, many employers would have said could not be done away from the workplace. When these employees ask to work remotely as a reasonable accommodation after the workplace reopens, employers will have a more difficult time arguing that those employees cannot perform the essential functions of their jobs while working from home.
Employers should anticipate new requests to work remotely from employees for disabilities or conditions directly and indirectly caused by COVID-19. Employees who are diagnosed with COVID-19 may ask to work from home as an accommodation while they recover from their illness. Employees with pre-existing disabilities or medical conditions that place them at a higher risk from COVID-19 may also request teleworking as an accommodation. Pregnant employees or employees with weakened immune systems may request to continue working from home to reduce their risk from COVID-19 exposure. Employees with mental health disabilities may also request accommodations because of COVID-19. In fact, the EEOC has specifically noted that employees with anxiety may require accommodations because of increased stress related to COVID-19. Employers should not dismiss out of hand an employee’s request to work remotely because of their concern of exposure to COVID-19 in the workplace or through commuting without considering whether the employee’s request arises out of a disability or other condition, such as pregnancy, that would potentially require an accommodation.
COVID-19 Accommodations in the Workplace
Employers also should prepare for changes they may need to make to the workplace to address accommodation requests. The EEOC has identified “low-cost” accommodations that employers should be prepared to make in their workspace in response to requests from disabled employees. Such accommodations include reducing contact with other employees, designating one-way aisles or using Plexiglass, tables or other barriers to ensure minimum distances between customers and coworkers. Businesses should begin planning now for how they could potentially make changes to their workspace if employees request accommodations that could reduce their risk of COVID-19 exposure. The EEOC has also suggested that employers could consider temporary restructuring of marginal job duties, temporary transfers to different positions, or modifying an employee’s work schedule or shift assignments as accommodations to reduce potential COVID-19 exposure.
Businesses also need to ready themselves for accommodation requests relating to protective gear worn in the workplace or increased infection control procedures. Where employees are required to wear face coverings in the workplace, employers need to be prepared to address accommodation requests from employees with hearing difficulties who may communicate through lip reading. If employees are now required to wear gloves or protective coverings, employers need to be ready to accommodate employees who request non-latex gloves, or employees in wheelchairs who may need modified gowns or protected coverings. Anticipating and planning for these issues now will allow employers to avoid problems that could hinder their ability to return to business as soon as possible.
7 Ways Our New Disability Accessibility Must Continue After the Pandemic
It’s the 30th anniversary of the ADA this year and the most amazing thing has happened. After years of hearing it was too difficult and couldn’t be done, the world became much more accessible basically overnight.
The truth is the context of this dream-come-true hurts a little. It wasn’t done for us, the people who need accessibility every day. It was done because an emergency happened and everybody else suddenly needed it too. So as amazing as all these newly accessible options are, the COVID-19 pandemic being the catalyst for accessibility feels like a slap in the face to many disabled people.