Lexology
As previously reported, a national trend seen here in Minnesota involves public accommodations receiving letters from attorneys threating costly litigation alleging non-compliance with the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA) regarding proper accessibility for the disabled. These demands typically offer to settle the matter for amounts far less than the costs of litigation.
A bill has now been introduced in the Minnesota House which seeks to avoid these shakedown threats, while at the same time ensuring accessibility compliance. The Civil Law Committee passed the bill and it is now on the House floor.
Just Thinking A Worker Is Disabled Can Lead to ADA Lawsuits
Corporate Counsel
The first step to conquering addiction may be admitting you have a problem, but even if you don’t admit anything, you still may be able to sue your employer under the Americans with Disabilities Act.
A recent case in Massachusetts serves as a reminder that the ADA can implicate employers that take adverse action against a worker, even if no disability actually exists. Perceiving a worker as disabled and acting on that perception could lead to legal liability.
Genesco Inc., which operates a Lids hat and sports memorabilia store in Braintree, Massachusetts, learned this the hard way last week when a federal district judge in Boston rejected its motion for summary judgment on a plaintiff’s ADA claim.
The suit was brought by a former manager, Derek Izzo, who claimed that Genesco terminated him because he didn’t succumb to his boss’ request that he admit to having a substance abuse problem. The company presented a different account of events, in which Izzo resigned voluntarily after the boss tried to talk to him about poor work performance and then made mention of an employee assistance problem for substance abusers.
Izzo sued under a prong of the ADA that allows employees who don’t necessarily have a disability but are “regarded as” having one to seek legal redress.
Plaintiffs who are perceived as disabled have had protection under the ADA since it became law in 1991, but they gained greater rights in 2009 when amendments to the law took effect. The amended law dropped the requirement that those suing under its so-called regarded as prong need to prove that their impairment is perceived to limit a major life activity.
“The result of that is that it’s easier to file suits under that prong,” says Liane Fisher, a partner at Serrins Fisher, who predominantly represents plaintiffs. “We’re now seeing more actions.”
Now, all plaintiffs need to show is that they have been subjected to adverse action because of an actual or perceived impairment. An exception to the “regards as” prong exists only for an impairment that has an actual or expected duration of six months or less or can be defined as merely “minor.”
Employers dealing with the possibility of ADA litigation have to walk a fine line: they have business reasons to want to know if an employee’s performance is being affected by a condition, but the ADA restricts their ability to ask employees about disabilities.
When the possibility of being sued for regarding someone as disabled is thrown into the mix, the question of what employers should do when they suspect a worker might have a substance abuse problem gets even trickier.
“Rather than stick your nose in the employee’s personal life,” says Catherine Cano, an associate at Jackson Lewis, “I think it’s best to focus on: why is the employer concerned about this? Is it a situation where the employee is potentially coming to work this way?” She adds that in many cases when talking to workers it’s smart to focus on “performance issues,” rather than getting accusatory about substance abuse.
To help mitigate the chance of running into a risky situation with employees and substances, says Donald Schroeder, a partner at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, employers can send out broader reminders about substance-related policies and resources.
“The safest way to handle it is to continually update employees in a general way,” he says, “and perhaps remind them at that point about the opportunity to use EAPs [employee assistance programs] or to deal with any issue confidentially that they may be going through.”
If an employer becomes very concerned that an employee is using drugs, compelling drug testing may be an option. Many states allow companies to demand a drug test as long as they have a “reasonable suspicion” that someone is using, but different rules apply across different U.S. jurisdictions.
Illegal drug users, unlike alcoholics, are not covered by the ADA. But, explains Fisher, if someone is erroneously regarded as a current drug user or drug addict, or they are a recovering or recovered addict, they can get ADA protection.
The “regarded as” prong can be used in substance abuse cases, but it’s not the only type of situation where this aspect of the ADA is invoked. “It often comes up when employees are coming back from leaves on absence,” says Schroeder.
If an employee has been out of work with a medical condition and then returns to work employers may still regard them as disabled and treat them in a way that violates the ADA.
Illegal drug users, unlike alcoholics, are not covered by the ADA. But, explains Fisher, if someone is erroneously regarded as a current drug user or drug addict, or they are a recovering or recovered addict, they can get ADA protection.
The “regarded as” prong can be used in substance abuse cases, but it’s not the only type of situation where this aspect of the ADA is invoked. “It often comes up when employees are coming back from leaves on absence,” says Schroeder.
If an employee has been out of work with a medical condition and then returns to work employers may still regard them as disabled and treat them in a way that violates the ADA.
Chicago Fire Department's medical screenings didn't violate ADA – court
Reuters
The Chicago Fire Department did not violate the Americans with Disabilities Act by delaying the hiring process for two job applicants with medical conditions, a U.S. appeals court said on Thursday.
A unanimous three-judge panel of the 7th U.S. Circuit Court of Appeals said the plaintiffs, Steven Hill and Sean Roberts, who are black and were among the roughly 6,000 class members who had successfully sued the department for race bias, failed to show that the medical exams were unnecessary.
Aspiring firefighter with stutter says job rejection violates disability law
Milwaukee Journal Sentinel (blog)
Should a stutter prevent someone otherwise qualifed from becoming a firefighter?
A Muskego man has sued the city of Milwaukee in federal court, claiming it violated the Americans with Disabilities Act when it decided not to hire him because of his speech impediment..
Man says firing was violation of disability law
The Pennsylvania Record
A man is suing two companies, alleging he was wrongfully terminated after wearing a doctor-prescribed walking boot to work.
Charles Hall filed a lawsuit on March 22 in the U.S. District Court for the Eastern District of Pennsylvania against Gemini Plastics Inc. and Labor Ready Northeast Inc., citing violations of the Americans with Disabilities Act (ADA).
According to the complaint, Hall was assigned by Labor Ready Northeast to work for Gemini Plastics in June 2015. Preceding that, in March 2015, the plaintiff had a toe amputated as a result of his history of diabetes, the suit says. His claim alleges that he was instructed by his physician to wear a walking boot if possible after the surgery, and goes on to say that a Gemini manager agreed it was permissible.
On Aug. 25, 2015, an employee of Gemini allegedly told the plaintiff that he was not allowed to wear the walking boot while working. Hall says he obtained a doctor's note confirming that he could return to work in his sneakers. The plaintiff avers that he was unlawfully terminated the next day because his supervisor believed his health problems put him at risk in the workplace.
Hall seeks compensation for all lost wages and benefits, punitive damages, costs, expenses, and a trial by jury. He is represented by Ari R. Karpf of Karpf, Karpf & Cerutti PC, in Bensalem, PA.
U.S. District Court for the Eastern District of Pennsylvania Case number 2:16-cv-01307
Feds join suit alleging school kicked out boy with autism
Lima Ohio
The U.S. Department of Justice is supporting an Ohio mother’s lawsuit, which says a private Montessori school violated the Americans with Disabilities Act by kicking out her autistic son.
Website Access for the Disabled: Build It Now
JD Supra
The Americans with Disabilities Act was passed years before the Internet was widely available to the general public. Even after websites became ubiquitous, it would have been a stretch to argue that the ADA legally compels companies to make their websites accessible to the blind and deaf, as a "place of public accommodation" similar to a restaurant, retail shop, or other real world 'brick and mortar' location.
FMLA And ADA: A Critical Compliance Guide (Seminar)
Mondaq News Alerts
Location: Clarion Hotel, Lexington, KY
Date: Wednesday, May 18, 2016
Time: 9:00 am - 4:30 pm
ADAAA and FMLA compliance are some of the top employment law issues that keep HR professionals, attorneys and their employers up at night. Before handling leave requests or accommodating disabled employees, it is essential to know what seemingly small missteps can land your company in hot water. In this comprehensive guide to ADAAA and FMLA issues, the experienced attorney faculty will provide the information you need to proactively mitigate legal liability while protecting business needs.
Clarify gray areas over when temporary, episodic and other impairments are and are not considered disabilities.
Decipher ADAAA standards about qualified individuals and practically apply them to job descriptions and more.
Unravel FMLA and ADAAA intersections and confidently determine which law takes precedence.
Identify which situations and conditions trigger FMLA protections, and ensure employees provide proper notification for taking leave.
Get the latest information on FMLA fraud, intermittent leave and other issues that leave employers scratching their heads.
An Employer Need Not Read Minds About Reasonable Accommodations
Workforce Management (blog)
The ADA’s interactive process is a two-way street. For an employee to present a valid ADA claim, the employee must actively participate in the reasonable-accommodation discussion. The employee cannot simply provide the employer a doctor’s excuse and then turn a deaf ear to the employer’s offers to accommodate.
Eagle Village Shops hit with ADA lawsuit; plaintiff involved numerous other ADA compliance lawsuits
Main Line
A wheelchair-bound Florida man filed a federal lawsuit recently against Village Associates, owner of Eagle Village Shops in Wayne, claiming the small shopping center is not compliant with the Americans with Disabilities Law.
General manager alleges he was fired because of his disabilities
The Louisiana Record
general manager of a luxury import company is seeking damages over claims of wrongful and discriminatory termination.
Tom Siravo filed a lawsuit on March 28 in the U.S. District Court for the Eastern District of Louisiana against Rainbow Luxury Imports LLC over alleged violations of the American with Disabilities Act (ADA) and the Louisiana Discrimination Act (LDA).
Changing the Conversation About Mental Impairments—Sia on American Idol
Lexology