Letter of Findings: Pea Ridge School District | PDF
Lexology
This past week, the U.S. Court of Appeals for the Eleventh Circuit (encompassing Florida, Georgia, and Alabama) reignited an old-fashioned statutory interpretation duel. Ok, it’s not as exciting as the Earps vs. the Clantons at the O.K. Corral, but it certainly has more far-reaching ramifications for employers and employees alike.
The issue: whether, when an employee with a disability cannot perform the essential functions of his or her current job, the Americans with Disabilities Act (ADA) requires mandatory reassignment of minimally qualified individuals to a vacant position without competition. The Eleventh Circuit opinion – holding that the ADA does not mandate reassignment without competition – can be found here.
Oddly enough, until relatively recently, the U.S. Court of Appeals for the Seventh Circuit (Illinois, Wisconsin, and Indiana) – which now mandates non-competitive reassignments for employees with a disability (absent special circumstances or undue hardship on the employer) – would have expressly agreed with the Eleventh Circuit. However, in a rare circuit court mea culpa, the Seventh Circuit reversed course in 2012 after a dozen years of squarely disavowing any requirement to show preferential (as opposed to non-discriminatory) treatment of individuals covered by the ADA.
Echoing the Seventh Circuit’s now-reversed language, the Eleventh Circuit held that “the ADA does not require reassignment without competition for, or preferential treatment of, the disabled.” The court went on to state that “employers are only required to provide alternative employment opportunities reasonably available under the employer’s existing policies.” Because the employer had a policy of selecting the most qualified applicants for vacant positions, that meant that although the disabled employee (whose cane presented unacceptable safety hazards in a hospital’s psychiatric ward) had to be given an opportunity to compete for vacant positions on equal terms with other applicants, she was not automatically entitled to the position.
Interestingly, both sides of this debate cite the same Supreme Court opinion as the lynchpin of their understanding of the ADA’s requirements. What’s more, both circuit ringleaders have friends: the Eighth and Fifth Circuits stand with the Eleventh Circuit, while the Tenth and D.C. Circuits back the Seventh Circuit.
In other words, there is only one way this ends. High noon. The Supreme Court. Date unknown.
Website Accessibility: Proactive Steps to Avoid ADA Claims
Lexology
Plaintiffs’ law firms have recently been sending demand letters to banks of all sizes alleging that their websites violate the Americans with Disabilities Act (ADA), particularly with regard to accessibility of the websites to persons with visual impairments. The letters are accompanied by a proposed settlement agreement that would require the bank to undertake remedial measures and, of course, to pay the law firm’s fees and costs. The proposed remedial measures typically include:
· Making the website accessible consistent with prevailing (albeit nonregulatory) standards;
· Adopting and maintaining a Web accessibility policy to ensure that the website remains accessible; and
· Training for Web and content development personnel on accessibility programming, functionality and design.
A Smart Approach To Accommodating Employees With Disabilities
Mondaq News Alerts
As the overall U.S. population shifts, so too do workforce demographics. Based on the different ways the population is changing, employers can expect that more future employees will have disabilities covered by the Americans with Disabilities Act (ADA).
One reason for this is that, as the National Center for Health Statistics reports, U.S. obesity rates have more than doubled since the 1970s—which means there has been an associated rise in weight-related health problems such as high blood pressure, high cholesterol and diabetes.
In addition, more older employees are in the workforce, and some of these seniors have disabilities.
Meanwhile, the U.S. Centers for Disease Control and Prevention has reported a significant rise in the number of children—the workforce of the not-so-distant future—with such developmental and behavioral conditions as attention deficit hyperactivity disorder, autism, and various mood and anxiety disorders.
Unfortunately, many employers are overwhelmed and underprepared when it comes to accommodating employees who have disabilities. What's more, employers often face a maze of regulations that can complicate the situation. For example, California employers must comply with several overlapping laws, including the ADA, which was broadened by the ADA Amendments Act of 2008, and the California Fair Employment and Housing Act, which must be followed in coordination with various laws on workers' compensation, pregnancy leave and family leave.
Lexology
The EEOC has issued a new publication titled “Depression, PTSD & Other Mental Health Conditions in the Workplace: Your Legal Rights” aimed at informing applicants and employees with mental health conditions of their employment rights under the Americans with Disabilities Act (“ADA”).
The publication presents a series of questions and answers regarding applicants’ and employees’ rights under the ADA to be free from discrimination and harassment and to request reasonable accommodation in connection with a qualifying mental disability. The publication also addresses issues such as confidentiality of medical information and circumstances in which an employer may request medical information from an applicant or employee.
EEOC Issues Guidance on Rights of Employees with Mental Health Conditions Under ADA
The National Law Review
In continuation of its series of “resource” documents which provide guidance to individuals with medical conditions or work restrictions, on December 12, 2016, the EEOC issued a “resource” document titled “Depression, PTSD, and Other Mental Health Conditions in the Workplace: Your Legal Rights” which is intended to provide guidance on workplace rights for individuals with mental health conditions under the Americans with Disabilities Act (“ADA”).
In a news release regarding the document, the EEOC stated that discrimination charges based on mental health conditions are rising, and that the agency resolved approximately 5,000 charges relating to mental health conditions in 2016. As a result, the EEOC determined that a user-friendly explanation of the rights of individuals with mental health conditions was warranted. The document highlights the fact that individuals who are suffering from depression, post-traumatic stress disorder or other mental health conditions are protected, under the ADA, against discrimination and harassment at work because of their condition. Furthermore, these individuals have a right to request reasonable accommodations that can assist them in performing their job. The EEOC even provides a related resource for the individual’s mental health care provider titled “Mental Health Provider’s Role in Request for Reasonable Accommodation at Work” which is intended to guide mental health care providers in how to provide supporting documentation for a reasonable accommodation to an employer.
The resource document for the individual is laid out in a question and answer format that outlines the protections and rights of individuals with mental health issues. For example, the document provides information on when an employer can fire the employee because of a mental health condition, i.e., when the employee poses a direct threat to safety, the general limits on the employer’s ability to ask medical questions, and how to ask for a reasonable accommodation.
The resource document also provides guidance on when a request for a reasonable accommodation under the ADA is appropriate. However, one sentence that may give employers and employment counsel heartburn is the EEOC’s statement qualifying “substantially limiting.” The EEOC states that a condition may qualify by “for example, making activities more difficult, uncomfortable, or time-consuming to perform…” This “uncomfortable” language is new and is not included in the regulations. Only time will tell whether employees latch on to it in their reasonable accommodation requests.
No ADA Violation for Employee Who Wasn't a "Qualified Individual"
Lexology
As the position held by the plaintiff required physical presence in the office—something that she was unable to do because of her fibromyalgia—she was not a "qualified individual" subject to the protections of the Americans with Disabilities Act (ADA), the Eleventh Circuit Court of Appeals has ruled. A full-time purchasing agent for the city of Tallahassee, the plaintiff was responsible for working directly with internal city department representatives and vendors, many of whom often arrived unannounced at the office. After her diagnosis with fibromyalgia, she requested and was granted several accommodations (including a change in office location and dress code), but still missed significant amounts of work. She then asked for permission to telecommute, but the city denied her request, determining that full-time, regular attendance was an essential function of the job. She took early retirement and filed an ADA lawsuit. Affirming summary judgment in favor of the employer, the Eleventh Circuit agreed that the plaintiff was not a "qualified individual" because she could not perform an essential function of her job with regular, full-time attendance in the office. Further, because her request to telecommute was not a reasonable accommodation, the plaintiff was unable to identify a material adverse action to support her retaliation claim, the court concluded.
eLABORate: Eleventh Circuit Holds Disabled Workers Must Compete for Job Reassignments
Lexology
The Court of Appeals for the Eleventh Circuit recently held that businesses do not have to reassign their disabled workers into open positions ahead of more qualified, nondisabled employees, therefore rejecting the EEOC’s position that competition is not permissible under the ADA.
The lawsuit, titled United States Equal Employment Opportunity Commission v. St. Joseph’s Hospital, No. 15-14551 (11th Cir. Dec. 7, 2016), found that the express language of the ADA does not require an employer to prioritize the reassignment of a disabled employee over the hiring of the best-qualified applicant. The case concerned a nurse who worked in a psychiatric ward of a hospital. After suffering an injury, the nurse began using a cane to walk. The cane, however, posed a danger in the psychiatric ward as it could be used as a weapon by a patient. The hospital allowed the nurse 30 days to identify and apply for a new position at the hospital. If when the 30 days passed she was still interviewing for jobs, the hospital agreed to forgo terminating her for another 30 days. At the conclusion of the initial 30 days, the nurse had neither obtained a new position at the hospital, nor had she made it to the interview round for any of the jobs for which she had applied. As per the hospital’s policy, the hospital terminated her.
After her termination, the EEOC brought suit on the nurse’s behalf arguing that her termination violated the ADA. The EEOC alleged that the hospital failed to provide the nurse with a reasonable accommodation by not allowing her to use her cane in the psychiatric ward and that the hospital violated the ADA when it failed to reassign her to a new position without requiring her to compete with other applicants for the position. At the trial level, the jury entered judgment in favor of the hospital finding the hospital made a good faith effort to provide the nurse with a reasonable accommodation despite the fact that it did not ultimately assign the nurse to a new position.
Upon appeal, the Eleventh Circuit upheld the trial court’s decision relying upon both the express language of the ADA and Supreme Court precedent. The court found that the use of the word “may” in the statute suggested that reassignment will be reasonable in some circumstances but not in others. Furthermore, similar to the Supreme Court’s holding regarding established seniority systems for awarding reassignments in U.S. Airways, Inc. v. Barnett, 535 U.S. 391, (2002), the Eleventh Circuit found that a blanket rule forcing employers to violate an established best-qualified applicant policy in favor of a disabled employee may not be reasonable.
The EEOC argued that its interpretation had been accepted by the Seventh, Tenth and D.C. Circuits. The Eleventh Circuit disagreed and distinguished those cases without specifically disagreeing with them.
This case gives employers in the Eleventh Circuit more latitude than the EEOC proposed in handling the issue of transfers in reasonable accommodation, but given the unsettled nature of the issue across federal circuits, and the EEOC’s continued focus on ADA accommodation issues, employers should continue to tread carefully in this area.
Tiffin Advertiser Tribune
Tiffin Engineer Mario Livojevic and Tiffin City Administrator Dale Thornton discussed Americans with Disability Act compliance in Tiffin during a meeting of the ADA Advisory Committee Thursday afternoon.
Thornton, in his first meeting as chair of the committee, said the U.S. Department of Justice made a final interpretation this year of the ADA Amendments Act of 2008. The ADA, initially passed in 1990, aims to make American society more accessible to people with disabilities.
How the DOT Will Make Planes More Accessible for People With Disabilities
Condé Nast Traveler
We all know airplanes aren’t the best places to stretch or move around with ease. For passengers who use wheelchairs, though, it can be a nightmare. More and more stories have come out recently about the unfair and uncomfortable setup on planes for those with special and medical accessibility needs, and the U.S. Department of Transportation just announced they’re finally doing something about it.
While airlines have complied with the regulations set out by the Americans with Disabilities Act (ADA) of 1990, previously unconsidered issues like inadequate bathroom size have been brought to light thanks to social media. Now, the DOT’s ACCESS Advisory Committee—which includes airline representatives, flight attendants, and people with disabilities—revealed they plan to make bathrooms on single-aisle aircrafts (a.k.a. six-abreast seating in a cabin below 13 feet of width), which account for most domestic and short-haul international flights, more accessible for those in wheelchairs or who need extra assistance on board.
Turning the ADA into a cottage industry via litigation
Sonoran News
On Dec. 10, David Ritzenthaler and his Advocates for Individuals with Disabilities Foundation (AIDF) issued a press release stating it was suing Arizona Attorney General Mark Brnovich for failing to enforce the Arizonans with Disabilities Act with regard to over 9,000 Americans with Disabilities Act complaints filed with his office.
Understanding Rights Key to Helping Children Manage Diabetes at School
AJMC.com Managed Markets Network
“Kids with diabetes can do well in the schools, but they need support,” Albanese-O’Neill said. “Discrimination is often based on fear and misunderstanding. It’s not based on facts.”Student rights are governed by both federal and state laws, as well as local policies. In recent years, advocates have worked to pass state laws to protect student rights. In a landmark case in 2013, the US Department of Justice found that Alabama had systematically violated students’ rights by transferring children out of neighborhood schools or keeping them off sports teams.
Seeing in the Dark: Disability community reacts to '60 Minutes' attack on ADA
Bay Area Reporter
On December 4, 60 Minutes ran a segment on the Americans with Disabilities Act. For 13 minutes, correspondent Anderson Cooper interviewed allegedly corrupt attorneys whose get-rich plots involved visiting businesses with the sole purpose of suing them for not being ADA compliant.
Tips for Claims Under the Pregnancy Discrimination Act and the American Disabilities Act
JD Supra
Did you know that a pregnant employee who has complications may be equivalent to an employee with a disability? Recent cases hold that pregnant employees with complications may be entitled to reasonable accommodations. The complications do not need to be severe. They may include such things as temporary Post-traumatic Stress Disorder (PTSD), incompetent cervix, or high blood pressure. A physician’s restriction may be sufficient to put you on notice.
Pregnant employees with complications who use up their Family and Medical Leave Act (FMLA) leave may qualify for additional non-FMLA leave as a form of reasonable accommodation. In considering additional leave requests, if the end date for the condition is certain, an employer must evaluate whether such an accommodation can be made or presents an undue hardship. Requests for indefinite leaves are generally not considered to be reasonable.