Settlement Agreement: State of North Dakota
On December 14, 2020, the United States entered into a comprehensive settlement agreement with North Dakota to resolve complaints alleging that North Dakota discriminates against individuals with physical disabilities by unnecessarily institutionalizing them in nursing facilities, instead of providing them the services they need to live in the community. The agreement requires the State to transform its long-term care system so that people with physical disabilities can remain with their families and communities, while still receiving the care that they need. Under the agreement, North Dakota will expand services to individuals with physical disabilities in, or at risk of entering, a nursing facility to allow them to live in their homes. The State will provide these services to more than 2,500 people with disabilities, helping them to assess their options, decide where they would like to live, and arrange for community-based services, including assistance in finding accessible housing and home health aides to help with daily activities.
The U.S. Equal Employment Opportunity Commission (EEOC) and the City of Hammond, located in Indiana, reached a voluntary conciliation agreement to resolve a will pay up to $80,750 and furnish other relief to resolve a disability charge.
The EEOC’s investigation found reasonable cause to believe that the City of Hammond (City) subjected employees to impermissibly broad and comprehensive medical exams, which they called Functional Capacity Evaluations. The City used the results of this impermissible medical inquiry to terminate at least one individual. These actions were in violation with the requirements of the Americans with Disabilities Act (ADA), which prohibits employment discrimination based on disability. It also prohibits employers from engaging in retaliation because an employee opposed discrimination or filed a charge with the EEOC. It is also unlawful to coerce, intimidate, threaten or otherwise interfere with an individual’s exercise of ADA rights, or with an individual who is assisting another to exercise ADA rights.
The City chose to voluntarily resolve the matter with the EEOC, without an admission of liability, to avoid an extended dispute.
The conciliation agreement provides relief to individuals subjected to the impermissible medical inquiry and to the person who filed a charge with the EEOC. The agreement also calls for the City to provide additional written guidance and training to managers and supervisor, along with training on the ADA to the appropriate staff.
“An employer may not require a current employee to undergo a medical examination unless the examination is job-related and consistent with business necessity. Medical examinations that do not confirm with the ADA serve to stigmatize employees with disabilities,” said EEOC Indianapolis District Director Michelle Eisele.
Charlottesville, VA-based DoodyCalls, a leading pet waste removal company, will pay $40,000 and provide significant equitable relief to resolve a federal pregnancy and disability discrimination lawsuit.
According to the suit, a female pet waste technician at DoodyCalls’s Rockville, Md., facility, whose duties included visiting residential and commercial sites to collect and dispose of pet waste, told the operations manager that she had a pregnancy-related medical lifting restriction and a requirement to take a brief break after six hours of walking. The EEOC said that the technician could have continued performing her duties within her lifting restriction by simply reducing the size of each load, as allowed by her job description, and as she had successfully done before the medical restriction. Instead of allowing the technician to do her job under the lifting restriction, a DoodyCalls manager fired her, telling her that he was concerned about the company’s liability and that she could seek re-hire after her pregnancy, according to the suit.
Such alleged conduct violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, as well as Title I of the Americans with Disabilities Act (ADA). Title VII prohibits employment discrimination because of pregnancy, childbirth and related medical conditions, such as discharging pregnant workers with medical restrictions when they are able to perform their job duties. The ADA prohibits employment discrimination because of disability. The EEOC filed suit (EEOC v. DoodyCalls, Inc., Civil Action No. 8:19-cv-02757) in U.S. District Court for the District of Maryland, Northern Division, after first attempting to reach a pre-litigation settlement through its voluntary conciliation process.
The three-year consent decree resolving the lawsuit provides $40,000 in monetary relief to the technician and enjoins DoodyCalls from terminating employees based on their sex/pregnancy and/or disability in the future. DoodyCalls must provide training on Title VII, the ADA, and the decree’s requirements. Under its revised non-discrimination policy, DoodyCalls will provide reasonable accommodation to employees who are pregnant and/or have a disability, promptly investigate complaints of discrimination, and take appropriate disciplinary measures up to and including termination against any supervisor who discriminates. DoodyCalls will post an anti-discrimination notice and report to the EEOC on any future complaints of alleged pregnancy or disability discrimination.
"Pregnancy discrimination continues to be a persistent problem in the American workforce, and the EEOC will continue working to prevent and remedy such discrimination,” said EEOC Regional Attorney Debra M. Lawrence. “We commend DoodyCalls for voluntarily agreeing to a settlement that compensates the technician and protects other employees from discrimination based on pregnancy or disability.”
“Employers must remember that federal law prohibits employment discrimination not only because of pregnancy and childbirth, but also any medical conditions related to pregnancy or childbirth,” added Jamie R. Williamson, director of the EEOC Philadelphia District Office. “Workers with pregnancy-related medical conditions or ADA disabilities related to pregnancy must be treated in accordance with their rights under the law -- not myths, fears, or stereotypes.”
- General Dynamics Missions Systems did not violate the Americans with Disabilities Act (ADA) when it terminated a worker whose disability made her unable to comply with its safety requirements, the 4th U.S. Circuit Court of Appeals ruled (Holmes v. General Dynamics Mission Systems, Inc., No. 10-1771 (4th Cir. Dec. 9, 2020)).
- General Dynamics required the plaintiff, a shelter fabricator, to wear steel-toed shoes as protection from accidents involving heavy equipment. She provided a doctor's note saying a medical condition required her to wear flexible footwear. Eventually, General Dynamics decided it had to enforce its safety policy and placed her on leave. An HR manager worked with her for two years to find compatible shoes, including custom-made shoes that the company would have "heavily subsidized," according to the court's opinion. She rejected the proposed alternatives. The employer reviewed the steel-toed shoe requirement to see if it could exempt the employee and looked for open positions that did not require the shoes. As neither option was possible, it fired her in 2016, leading to her to file a disability discrimination lawsuit.
- A district court granted summary judgment for the employer, finding that Holmes did not meet the definition of a "qualified individual" because she could not comply with her employer's valid safety requirements. The appeals court agreed. The ADA "simply does not mandate that a safety requirement be a part of the essential functions of a position for an employer to enforce it. Rather, as long as the requirement is valid, any employee who is categorically unable to comply — as Holmes and her doctors have consistently maintained that she is — will not be considered a 'qualified' individual for ADA purposes," the court said.
Holmes illustrates that if an employer has a legitimate business reason for requiring safety equipment, an employee's inability to wear that equipment because of a disability may not be protected by the ADA.
The ADA protects qualified individuals with a disability from workplace discrimination and requires that employers provide reasonable accommodations that allow employees to perform the essential functions of their jobs. Employees must be able to carry out the essential functions of their jobs, either with or without a reasonable accommodation, according to the U.S. Equal Employment Opportunity Commission (EEOC). Essential functions are the basic job duties that an employee must be able to perform, EEOC says, and can vary depending on the job.
The Holmes court noted that EEOC has explained that if an individual with a disability cannot comply with a dress code, including a requirement that employees wear safety equipment, the individual will not be qualified for the ADA's protections.
Judge Steven Grimberg said that, while there was no dispute that a urology clinic hired an unqualified American Sign Language interpreter for a deaf patient's exam, there as no evidence of deliberate indifference.
A federal judge in Atlanta dismissed an Americans with Disabilities Act complaint filed by a deaf woman who sought somewhat urgent treatment at a urology clinic that—despite scrambling to find an interpreter on short notice—was only able to provide someone who was noncertified in American Sign Language (ASL).
When the ad hoc interpreter’s efforts proved unsatisfactory, the clinic’s frustrated patient resorted to written notes and gestures, later suing Advanced Urology of Georgia for claims including violation of the ADA and other federal statutes and state claims including fraud and negligence.
On Monday, Judge Steven Grimberg of the U.S. District Court for the Northern of Georgia dismissed the case, writing that there was no indication that the clinic had deliberately discriminated against plaintiff Tracy Nix by using a noncertified interpreter—unsatisfactory as his performance may have been—or that it constituted intentional deception or malicious intent.
Nix’s attorney Andrew Rozynski said there would be an appeal of Grimberg’s order.
“This is an definitely an interesting issue; the judge said that, given the circumstances it was not deliberate indifference,” Rozynski said.
His client certainly had reason to believe that the ASL interpreter was a qualified medical professional, he said.
“Can you imagine any other profession where they’d just brought some guy in off the street and dress him up in scrubs for a urology exam, without even vetting him?” said Rozynski. “If this had been a case involving a nurse or technician, everybody’d be up in arms.”
There was testimony that the clinic manager had been granted permission to call an interpreter agency for assistance, “but for whatever reason they didn’t call,” said Rozynski of New York’s Eisenberg & Baum, who represents Nix and her husband along with firm colleagues Adriana Alcalde and David Hommel Jr., and James Radford of Decatur’s Radford & Keebaugh.
Advanced Urology’s lawyers, Jessica Thomas and Lauren Zeldin of Ogletree, Deakins, Nash, Smoak & Stewart, did not immediately respond to a request for comment Tuesday.
As detailed in court filings, the case began in 2018 when Nix contacted Advanced through a video relay service to make an appointment concerning an infection problem.
Because of the “emergency nature” of her request, the clinic made an appointment for two days later.
Nix, who is deaf but reads and writes English, contacted the clinic the next day to request that an interpreter be provided.
According to Grimberg’s order, the clinic had treated deaf patients before but did not have any “ongoing agreement” with the interpreting agency.
Clinic officials were unable to engage an interpreter through the agency and “decided to look for other ways to fulfill Nix’s request.”
An Advanced employee volunteered that she had a friend who “could do basic signing” and put clinic vice president Missy Sherling in touch with the man, Dalton Belew.
Sherling did not investigate Belew’s background or qualifications but, based on her “subjective belief that Belew previously interpreted for another medical practice,” the clinic hired him to interpret Nix’s appointment.
“Contrary to Sherling’s beliefs, Belew was not certified in ASL, had never interpreted in a medical setting, and characterized his own skills as ‘intermediate,’” Grimberg wrote. “Belew had instead been previously employed as a video editor, floor manager at a news company, and at a dental office in an administrative position and as a sterilizer.”
According to the complaint, Nix had “specified that in light of the gynecological/urological nature of her appointment, she would prefer a female interpreter” but was presented with Belew, in surgical scrubs bearing Advanced’s logo.
Belew was “held out as a certified interpreter and a medical professional,” the complaint said. On the day of the appointment, Grimberg’s order said “the evidence is undisputed that Nix and Belew experienced significant difficulties communicating with each other through ASL.”
“At some point, Nix abandoned communication with Belew entirely and began writing notes and using gestures to communicate directly with the medical staff,” the judge wrote.
“Belew nonetheless remained in the room while Nix partially undressed and underwent two non-invasive ultrasounds,” he said.
Afterward, the Nixes complained to Advanced about Belew’s efforts, and the clinic refunded their $40 co-pay. Advanced paid Belew $100 for his services.
A few months later, the Nixes filed their complaint, which was subsequently amended to include federal claims for violation of the ADA, Rehabilitation Act and Patient Protection and Affordable Care Act—all based on assertions that Advanced’s failure to provide a certified interpreter amounted to discrimination—and state claims for fraud, negligence and intentional infliction of emotional distress.
Both sides filed motions for summary judgment.
In dismissing the case, Grimberg wrote that Nix sought both injunctive and compensatory relief for the federal claims but later abandoned the injunctive relief.
Both sides agreed that Nix is deaf and uses sign language as her primary means of communication and that Advanced did not retain an ASL-qualified interpreter for her appointment.
Grimberg said there were “genuine issues of material fact” as to whether Nix was able to adequately communicate with clinic staff.
But, he said, she “must do more than prove a lack of effective communication” by showing that the alleged violation resulted from of intentional discrimination.
“Under the disability anti-discrimination statutes, intentional discrimination may be established through deliberate indifference,” Grimberg said.
Nix had argued that Advanced’s failure to vet Belew’s credentials amounted to deliberate indifference, but “[t]here is no requirement in federal or Georgia law that a medical facility provide an ASL-certified interpreter for deaf patients,” the judge wrote.
In Nix’s case, he said, “not only did Advanced Urology attempt to accommodate Nix’s last-minute request for an in-person interpreter, it actually procured one for her appointment.”
While Belew turned out to be a “poor choice,” he said, it was “undisputed Nix never specifically informed Advanced Urology’s medical staff that she needed or wanted a different interpreter. In fact, Nix did not raise any grievance concerning Belew’s performance until after the appointment.”
Regarding the fraud claim, there was no evidence Advanced had represented Belew as an employee or a medical professional, Grimberg said, despite the fact that he was wearing the clinic’s scrubs.
“In fact, it is undisputed everyone working at Advanced Urology wore scrubs, not just nurses and physicians,” he wrote. “The lack of evidence showing Advanced Urology made actual false statements is fatal to Nix’s claim.”
The negligence and emotional distress claims must also be dismissed, Grimberg said, as there was no evidence that Nix was harmed by Belew’s actions, that he behaved inappropriately or that she ever felt threatened by him.
Now may be the time to audit your website to ensure that it is accessible to blind or visually impaired visitors. A recent case in California, coupled with ADA requirements, makes it easier for unwitting businesses with an online presence to be dragged into a California state court even if they have no California offices or employees. Companies could face significant monetary damages, not to mention serious damages to their reputation and loss of customers.
In Thurston v. Fairfield Collectibles of Georgia, LLC, the plaintiff, a blind California resident, sued a Georgia company for failing to provide her full and equal access to the company website in violation of California disability discrimination law.
UCRA is a relatively simple statute that has huge implications for businesses with websites. Its directive is as follows:
All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
UCRA further states that any violation of the Americans with Disabilities Act (ADA) is a violation of UCRA. Therefore, the Ninth Circuit’s acknowledgment that a website can be a place of public accommodation in Robles v. Domino’s Pizza, LLC, has serious implications for out-of-state defendants when combined with the Thurston court’s holding. UCRA allows a plaintiff to recover his or her actual damages in an amount no less than $4,000, which can be tripled in certain instances. Even worse, the defendant is required to pay the plaintiff’s attorney fees. Defending a website accessibility claim becomes a costly proposition, especially after a business or individual accounts for an attorney’s cost along with remedies. These cases are on the rise because attorneys see these claims as a lucrative cottage industry; the attorneys and potential plaintiffs actively seek out non-compliant websites. For example, the plaintiff in Thurston self-identified as one of these “testers.”
The best way to handle these claims is to avoid them altogether. Many web developers offer compliance audits and accessibility solutions that allow blind and visually impaired users to navigate a company’s website successfully. While legislatures and government agencies have been painfully silent on the measures a company can employ to insulate it from liability, the “gold standard” for web accessibility is generally considered the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0 (WCAG).
If you are the recipient of a website accessibility lawsuit or a letter threatening such a lawsuit, even one from out of state (like California), do not ignore it. Contact an attorney immediately to protect your rights. Despite the considerable obstacles facing a defendant hit with such a lawsuit, counsel can help you navigate and successfully resolve these types of claims.
The U.S. Equal Employment Opportunity Commission (EEOC) today posted an updated and expanded technical assistance publication addressing questions arising under the Federal Equal Employment Opportunity Laws related to the COVID-19 pandemic.
The publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” now includes a new section providing information to employers and employees about how a COVID-19 vaccination interacts with the legal requirements of the the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA). This includes issues pertaining to medical pre-screening questions and employer accommodations for those unable to receive a vaccination.
- Employers can require proof that employees have received a COVID-19 vaccine — with some exceptions, the U.S. Equal Employment Opportunity Commission (EEOC) said in Dec. 16 guidance.
- COVID-19 vaccinations approved by the Food and Drug Administration do not constitute medical examinations under the Americans with Disabilities Act (ADA), EEOC said, but certain inquiries could implicate the ADA’s rules on disability-related inquiries. Employers requiring vaccination or proof of vaccination must show that such inquiries are job related and consistent with business necessity.
- While federal law sometimes requires employers to grant policy exemptions as religious or disability accommodation, employers may be permitted to exclude from the workplace individuals unable to receive a COVID-19 vaccine under certain circumstances. In the event that an employee is unable to receive a vaccine due to a disability, the employer should conduct an individualized assessment to determine whether a direct threat scenario exists. If a direct threat cannot be reduced to an acceptable level via reasonable accommodation, the employer may exclude the employee from physically entering the workplace, the agency said. Similarly, if an employee is unable to receive a vaccine due to a sincerely held religious practice or belief, and there is no reasonable accommodation possible, an employer may exclude the employee from the workplace lawfully.
On December 14, 2020, the first Americans began receiving the COVID-19 vaccine, and approximately 3 million doses will be distributed nationwide in the coming weeks. Most states, including Ohio, have designed a program for distribution of the vaccines in phases to different groups based on need and risk: hospitals; nursing homes; health care workers and first responders; and so forth. However, it is not yet known when the vaccines will be widely distributed and available for the general public, but it is not expected until at least early April 2021.
Yet even when available, not everyone is likely to be willing to get vaccinated. A recent Gallup Poll indicated that only 58% of Americans said they would get vaccinated against COVID. Another poll put that figure closer to 72%. Regardless, there appears to be a significant challenge ahead for achieving mass public compliance with vaccine recommendations. This raises the employer’s dilemma – can employers require their employees get vaccinated, and even if they can, is it a good idea?
Disability and Religious Accommodations
It is fairly well-settled that employers can require that employees get vaccinated. Mandatory vaccinations in the workplace are not a new concept, particularly among health care providers. In practice, this means an employer could discipline or even terminate employees who refuse to get a vaccine, since their refusal will endanger customers and coworkers. However, vaccination requirements cannot override employers’ obligation to provide reasonable accommodations for disabilities under the Americans with Disabilities Act (ADA) (and similar state laws) and for conflicts with sincerely held religious beliefs under Title VII.
Whether an employee who has a sensitivity to a vaccine is “disabled” for purposes of the ADA is currently unclear. There are court decisions that go both ways. Likewise, whether an employee has a “sincerely held religious belief” entitled to protection under Title VII is not always clear. Personal, political, or ethical objections typically are not sufficient. So, for example, a personal anti-vaxxer belief usually will not be protected. But some jurisdictions interpret “religious belief” more broadly than others.
Because determining these threshold issues can be difficult, it makes sense for employers to assume the employee is “disabled” or does have a sincerely held religious belief that is in conflict with a mandatory vaccine, and focus instead on determining whether an accommodation is available. Under both the ADA and Title VII, the employer must consider the issues on an individualized basis, and provide a reasonable accommodation if one can be identified that does not result in an undue hardship. The standard for what is deemed an “undue hardship” is different for ADA issues than it is for religious accommodation issues under Title VII.
Under the ADA, an “undue hardship” presents a “significant difficulty or expense” for the employer. This is a high standard and can be difficult to establish. For religious accommodations, an undue hardship is one that results in more than a de minimis cost to the operation of the employer’s business. This is not a high bar, and can include consideration of harm to the employer, its employees, and third parties (such as patients or residents at health care facilities).
If an accommodation is required, solutions in some cases could be relatively easy: having the employee work from home, imposing enhanced mask requirements, creating barriers or separation from co-workers, and the like. But in other cases, a solution (accommodation) may be difficult or impossible. The Equal Employment Opportunity Commission (EEOC) acknowledges that mandatory vaccines are not per se unlawful. However, the EEOC currently still suggests that “employers should consider simply encouraging employees to get the vaccine rather than requiring them to take it.” The EEOC may issue additional guidance on this as the vaccine rolls outs.
Wage and Hour Issues
Who pays for the mandatory vaccine? The costs of the initial rounds of the vaccine will be free, paid for by the federal government. A fee, however, will most likely be charged by a provider for “administering” the vaccine. The CARES Act requires that an employer’s non-grandfathered group health plan cover both the cost and administration of the vaccine at no charge to plan participants. Accordingly, to the extent that an employee participates in the employer’s group health plan, the employer’s group health plan will cover both the cost (if any) and the administration of the vaccine. For those employees who are not covered by the employer’s group health plan, an employer may not be legally obligated to pay for any associated costs, but it may make sense for an employer to do so. Federal wage-hour laws require employers to reimburse employees for business-related expenses incurred on the employer’s behalf to the extent failing to do so cuts into the employee’s minimum wage. Considerations of fairness would militate in favor of covering any associated costs, and this also will help ensure wage-hour compliance. Note that state or local laws may also impose obligations for employers to pay.
Is the time employees spend getting a required vaccine compensable time? There is no definitive guidance on this from the EEOC or U.S. Department of Labor yet. If mandatory vaccination is deemed the equivalent of a medical test, or if the employer requires that the test be obtained during normal working hours, then the time spent getting the vaccine probably is hours worked (and so compensable time). If instead, the employer allows the employee ample time and does not dictate how or when to obtain the vaccine, the time may well not be deemed compensable hours worked. Of course, if an employer merely encourages voluntary vaccination, then time spent getting vaccinated is unlikely to be compensable time.
Another question might be what proof of the vaccination can an employer require? While there is no guidance yet from the EEOC on this question, it is likely permissible to request the employee to provide documentation from the source of the vaccination, showing the date of the test. The documentation should be retained as a confidential medical record, and an employee’s status of being vaccinated or not should not be disclosed and should be treated as protected by privacy requirements.
Ultimately, the case for mandatory vaccines may depend on what type of work is at issue, so employers should determine whether a vaccine is job-related and consistent with business necessity. For example, an environment where employees work in a busy store or crowded office or with high-risk populations may be candidates for mandatory vaccines. If employees work mostly by themselves, a vaccine may not be as important to the workplace. Employers should also consider their workplace culture, potential employee backlash, labor relations, and any unionization concerns. Contact your Vorys lawyer to discuss mandatory vaccine considerations for your workplace.