ADA in the News: August 26, 2014

Nurse fired three days after on-the-job injury can proceed with ADA claims
A nurse at an assisted living community who was fired three days after breaking three ribs and pinching a nerve in her elbow at work may proceed with her ADA claims, a federal magistrate judge in Oregon ruled. Not only was there sufficient evidence to raise a genuine issue of fact regarding whether her injuries constituted an actual disability, but there was also a dispute about whether her employer perceived her to be suffering from an impairment substantially limiting a major life activity, thus allowing an alternative regarded-as claim to proceed. The employer knew she was having trouble breathing and was restricted in her work. Therefore, the employer’s motion for summary judgment was denied in part (McDonald v Care Center (Linda Vista), Inc, DOre, August 7, 2014, Clarke, M).
Employee’s resignation short-circuited reasonable accommodation opportunity
A disabled worker was the author of her own misfortune where she prematurely resigned her employment without giving her employer the opportunity to fully consider her “work-from-home” accommodation request, ruled a divided D.C. Circuit. Here, the appeals court concluded that the employee abandoned the interactive process before the employer had the information it needed to determine the appropriate accommodation. As a consequence, the appeals court affirmed the district court’s grant of summary judgment in favor of the employer on her failure to accommodate and constructive discharge claims. Judge Millett filed a dissenting opinion (Ward v McDonald, DCCir, August 12, 2014, Henderson, K).
New Jersey Law Journal
A trio of lawyers from Florida are driving an upsurge in the number of suits charging New Jersey property owners with violations of the Americans with Disabilities Act.
A discrimination lawsuit is now pending against Cornerstone Alliance. Former resource development coordinator Reyna Price is suing the economic development agency in federal court, alleging the organization violated the Americans with Disabilities Act with her firing in September, 2013. Price had been with Cornerstone Alliance since February 2009, and had no issues with the organization while it was run by former president and CEO Wendy Dant-Chesser.  She accuses Cornerstone Alliance's CEO and president Vicki Pratt of discrimination, with the lawsuit stating Pratt pressed her to attend non-essential weekend and after-hours events without pay and criticizing her for caring for her disabled daughter. The young girl has Dravet Syndrome, a severe form of epilepsy that requires Price to have to care for the girl on an emergency and short-notice basis. The lawsuit alleges Pratt believed Price was "too distracted by her obligations to her daughter to continue to do a good job. " Price is seeking damages to be determined by the court. Neither side is commenting on the lawsuit. No court date has yet been set.
Business Management Daily
Qualified employees who take FMLA leave for their own serious health conditions are entitled to return to their old jobs or equivalent ones once their leave is over. But that’s only true if they are fully healed and able to do their jobs.
Recent case: After a stressful reorganization during which she was rejected for a promotion, Ilisa got a doctor’s certification that she was being treated for “depression, anxiety disorders and attacks, and suicidal ideations.” Her employer offered her 12 weeks of FMLA leave, which she took. She was informed that she had to be medically cleared to return to work after her time off.
Ilisa didn’t get that clearance. She did, however, try to come back to work on the assigned day; she was stopped because her doctor said she was still suffering from a serious health condition. A few weeks later, she got the clearance, but the employer refused to reinstate her.
She sued, alleging FMLA violations.
The court dismissed her FMLA claim, based on her own acknowledgement that she hadn’t been cleared for work at the end of the 12-week period. Because she wasn’t, she was also not entitled to the same or an equivalent job—or any job. (Thomas v. St. Mary Medical Center, No. 13-3219, ED PA, 2014)
Final note: Before you discharge an employee who can’t show she’s fully recovered, make sure she isn’t disabled and entitled to reasonable accommodations. In this case, the employee didn’t raise the ADA reasonable accommodations issue to the EEOC and lost the right to sue over it.
That won’t be the case for most employees. The best approach is to engage in the interactive accommodations process if it appears the employee may be disabled under the ADA. Additional leave may be a reasonable accommodation.
Corporate Counsel
If an employee leaves his post at the hospital for four hours without being able to account for his whereabouts and then, in his termination meeting, discloses a disability, can he still be fired? It’s a complicated question, and one that Eric Meyer on his Employer Handbook blog, along with the Rhode Island district court, recently took on.
“It’s axiomatic (that’s fancy legal speak for ‘unquestionable’) that when you make an employment decision without knowing someone’s protected class (such as a disability), you’re not discriminating based on the protected class,” says Meyer. The Rhode Island court agreed, and also noted the plaintiff conceded at trial that he didn’t believe his bosses fired him because of any kind of disability (or that the disability led to his disappearance in the first place).
However, Meyer does warn employers that they need to have clear and set-out guidelines so that employees do feel comfortable disclosing their disabilities and are able to be accommodated. “Grab your employee handbook and make sure it includes a section on reasonable accommodations. And include this in your training of both employees and supervisors (the ones who generally field the requests),” he suggests.
In Weaving v. City of Hillsboro,1 the U.S. Court of Appeals for the Ninth Circuit waxed nostalgic by reversing a jury and lower court finding that a police officer with Attention Deficit and Hyperactivity Disorder (ADHD) had a “disability” within the meaning of the 2008 amendments to the Americans with Disabilities Act (ADA).  The Ninth Circuit held that the former officer was not disabled, because his ADHD – and associated abrasive behavior toward colleagues – did not substantially limit him in the major life activities of working or interacting with others.  Before the amendments to the ADA, this decision might not have been noteworthy.  Given the far more expansive interpretation of “disability” under the 2008 ADA Amendments Act (ADAAA), however, the Weaving case assumes the aura of a “Man Bites Dog” story by resisting the tendency of courts to err on the side of finding threshold protection under the ADAAA.
Workforce Management (blog)
The Americans with Disabilities Act protects “alcoholism” as a disability. There is a huge difference, however, between alcoholism, which the ADA protects, and being drunk at work, which the ADA absolutely does not protect. The ADA is never going to cover any employee who uses substances at work, let alone one who’s in an altered state a result.
MyFox Chicago
A woman has filed a federal lawsuit against Six Flags Great America in north suburban Gurnee, claiming the park discriminated against her disabled son by not letting him on rides.
Ann McKinney, of Decatur, claims her young son Rory was refused permission on “the vast majority” of rides at Six Flags Great America in Gurnee two years ago due to his disability, according to the suit filed Friday in U.S. District Court. Rory has Radial-Ulnar club hand, a “congenital upper extremity deformity” in both of his arms, the suit states.
The suit claims Six Flags' exclusion of her son is a violation of the Americans with Disabilities Act and “is not based on any credible scientific or engineering principles.”
Modesto Bee
A Modesto Bee review of documents in federal and local courts in Stanislaus and Merced counties reveals that four disabled plaintiffs, all working separately and with different lawyers, recently have filed at least 52 Americans with Disabilities Act lawsuits in the two counties. Three plaintiffs live nowhere near the San Joaquin Valley (one each in Arizona, Los Angeles County and Riverside County), and the other is an Atwater woman.
Most of the lawsuits quickly were settled for undisclosed amounts because lawyers insist on confidential deals. Some business owners have said they each paid several thousand dollars to make the lawsuits go away, in addition to the expense of bringing their establishments up to code and hoping they meet California’s ever-changing standard. At least two local restaurants closed rather than spending money to fight serial litigants.
Workforce Management (blog)
When is a disability not a disability? When an employer fires a difficult employee based on his inability to get along with his co-workers, his Attention Deficit Hyperactivity Disorder diagnosis notwithstanding, at least according to the 9th Circuit in Weaving v. City of Hillsboro (8/15/14).
JD Supra
Does an employer have to provide a modified work schedule to a pregnant employee with morning sickness or light duty to a pregnant employee with lifting restrictions?The answer depends on who you ask. Most federal courts say no, but the Equal Employment Opportunity Commission (EEOC) says yes. Fortunately for employers, resolution of this issue is on the horizon. On July 1, 2014, the United States Supreme Court agreed to decide the issue during its October 2014 term in Young v. United Parcel Service, Inc. The Supreme Court will decide whether employers that accommodate non-pregnant employees’ work limitations are required to do the same for pregnant employees with similar pregnancy-related limitations under the federal Pregnancy Discrimination Act (PDA). Although the Supreme Court will provide clarification on the issue under federal law, employers should be mindful that several states and cities, including New Jersey, New York City and Philadelphia, have laws which require employers to provide reasonable workplace accommodations to pregnant employees unless such accommodations would pose an undue hardship on the employer’s business. For now, one thing is certain—employers should pay particular attention to this issue because there is a growing trend in laws expanding the rights of pregnant women in the workplace.
Business Management Daily
Discrimination claims are expensive to defend. If they reach a jury, the results are often unpredictable. That’s one reason employers need to do everything within their power to preserve the option to file a motion for summary judgment. It’s one of the most effective risk and cost containment tool available to employers facing a discrimination lawsuit, and it’s especially important in disability discrimination cases. 
When it comes ADA disability discrimination claims, employers have to think about litigation as soon as an employee self-identifies as disabled and brings up potential reasonable accommodations.
If a supervisor or HR professional refuses to even consider accommodations—that is, refuses to “engage in the interactive accommodations process”—it all but guarantees that the case won’t be dismissed at the summary judgment stage, potentially leading to a jury trial.
The Pennsylvania Record
A Berks County woman claims in a federal suit filed at the U.S. District Court for the Eastern District of Pennsylvania that she endured months of discriminatory behavior from her male supervisors and co-workers, including personal threats and vandalism to her car, before her unjustified termination as a cook at a nursing home.
Lisa Abraham, of Fleetwood, Pa., seeks damages from her former employer, Berks Leisure Living, saying that the company did nothing to repair a hostile environment that discriminated against her because of her gender and disabilities.
According to the complaint, Abraham began working for Berks Leisure Living in October 2010 as a cook and dietary manager, giving her employers full awareness of her medical condition, specifically the fact that she suffered from fibromyalgia and rheumatoid arthritis. The claim says that the conditions are covered under the Americans with Disability Act and impaired her ability to lift, climb and run. (blog)
Everyone is more cognizant of food allergies today. Airlines no longer serve peanuts, food labels clearly list all ingredients, and waiters frequently ask patrons about any special dietary needs.
But, should food allergies qualify as a legally recognized disability?
The federal Americans With Disabilities Act (ADA) bans discrimination against individuals with disabilities and guarantees them the same opportunities as other Americans. The statute does not contain a list of conditions that qualify, but rather defines "disability" as a mental or physical impairment that substantially limits a major life activity.
At some point in time, most employers or managers face a situation where an employee exhibits odd or off-putting behaviors, or behaviors that suggest the possibility that an employee could harm herself or other persons at the workplace.  Navigating the maze of potential proactive and reactive measures to take has never been easy, and not much case law on the topic exists, especially outside the sphere of public safety positions in fire and police departments.  Moreover, the EEOC has not specifically updated its March 25, 1997 Guidance on the Americans with Disabilities Act ("ADA") and Psychiatric Disabilities, other than noting that the 2008 amendments to the ADA change how the Act defines "disability." This state of affairs provides little direction or comfort to employers.  Those who review the cited EEOC Guidance can also fairly say that the discussions contained in the Guidance can at times raise more questions than they answer.
Businesses must brace themselves for a tidal wave of accessibility-related lawsuits focused on websites that do not comply with the Americans with Disabilities Act (ADA). While most companies with 15 or more employees that are open to the public know they must provide wheelchair ramps, specific door knobs, and wheelchair accessible bathroom stalls, few realize that their websites must accommodate visually and hearing impaired Internet surfers. In its simplest form, a website meets this accommodation requirement when it can be used by persons with various sight, hearing, and/or other disabilities.
Title III of the ADA requires businesses to make accessibility accommodations that enable disabled people to access the same services as those who are not disabled. This includes electronic media and web sites. Government contractors (and government agencies) have similarly strict compliance requirements. They must follow web accessibility guidelines under Section 508 of the Workforce Rehabilitation Act of 1973, which has different requirements than the ADA.
KIRO Seattle
A blind mom of three children attending Seattle Public Schools sued the district Wednesday for having inaccessible websites.
Mintpress News
Six people found not guilty by reason of insanity are being held in parish jails. Their class action lawsuit reflects a broader national problem: far too many mentally ill people are being held in prison and not receiving the care they need.

Feedback Form