ADA in the News December 9, 2020

Settlement Agreements:

·        Los Angeles Film School

·        Swedish Medical Center

Radiologist files virus-related ADA suit against hospital agency

A former hospital radiologist has filed a disability discrimination suit against the New York City Health and Hospitals Corp., stating he was forced to resign after he asked to work from home because his disability made him particularly vulnerable to COVID-19.

Dr. Richard Heiden said he made the request because of his autoimmune disorder, ulcerative colitis, and that he could have worked from home with little difficulty, according to the suit, Richard Heiden, M.D. v. New York City Health and Hospitals Corp., Physician Affiliate Group of New York, P.C. and Alan Kantor, M.D., filed in U.S. District Court in New York on Monday.

Dr. Heiden, who has more than 30 years of experience as a radiologist, began working at Lincoln Hospital, which is part of the public hospital agency, in October 2019.  When the pandemic hit New York, he became increasingly worried about the danger of working on-site at the hospital because of his ulcerative colitis.

The lawsuit states he asked the hospital if he could work from home, explaining he could still perform the essential functions of his job and noting that several prominent institutions permitted similar arrangements for their radiologists.

Dr.  Heiden said his supervisor told him if he did not resign he would be fired and reported  to the New York State Office of Professional Medical Conduct, “thus threatening Dr. Heiden’s medical license and livelihood.”

Dr. Heiden’s supervisor claimed he was a poor performer and was accurate in his assessments only 93.8% of the time, which was below the hospital’s 97% threshold, which Dr. Heiden has denied, according to the lawsuit.

Dr. Heiden’s lawsuit charges discrimination and retaliation in violation of the federal Americans with Disabilities Act and state law.

The hospital agency did not respond to a request for comment.

Have You Thought About ... Ensuring Pandemic Fatigue Doesn’t Decrease Compliance?

Companies have drafted myriad new policies in order to continue pandemic-era operations, whether required by law or to accommodate new ways of doing business. However, simply having a policy is only the first step to protecting your business from potential liability. Whether policies relate to employment, public health directives, or even refunds and returns, failure to timely update the policies, to follow those policies, to give notice of those policies and to ensure consistent implementation of those policies is likely to result in costly investigations or lawsuits.

The first questions asked in these circumstances are commonly: (1) was there a policy; (2) what was done to ensure compliance with the policy; and (3) was the policy followed. COVID-19 fatigue brings all three questions to the forefront.

For example, earlier this month an upscale Los Angeles-area hotel found itself the subject of a lawsuit for failing to comply with its COVID-19 policies. The hotel had posted its COVID-19-related policies on its website that tracked the American Hotel and Lodging Association’s Safe Stay Initiative: requiring patrons to wear masks when moving about the property and maintaining social distancing. Additionally, the restaurant stated that, due to COVID-19 guidelines, it would not accept parties larger than six, and would limit dining to two hours. The lawsuit alleges that, based upon the plaintiff’s visit to the property, the hotel and restaurant were not complying with their COVID-19 policies, as the plaintiff saw a number of hotel guests not wearing masks in the hotel lobby and elevators and not abiding by social distancing guidelines. The plaintiff also alleges that the restaurant was serving multiple tables of six or more, and that tables were not spaced six feet apart.

Similarly, a national retailer recently lost its bid to dismiss a class action essentially for failing to ensure compliance with and follow their policies. Specifically, the court allowed the class action to proceed on the theory that the company failed to adequately notify consumers that it had altered its return policy in light of the COVID-19 pandemic and would be denying certain returns. The consumers further allege that the retailer does not train its employees on its return policies, causing consumers to regularly receive misinformation about returns.

The Importance of Disability Inclusion in the Workplace

This year also marks the 30th anniversary of the passing of the Americans with Disabilities Act (ADA). The ADA prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation and ...

December 3rd is International Day of Persons with Disabilities. The annual observance was proclaimed in 1992 by the United Nations General Assembly. It aims to promote the rights and well-being of persons with disabilities in all spheres of society and development, and to increase awareness and disability inclusion in every aspect of political, social, economic and cultural life.

This year also marks the 30th anniversary of the passing of the Americans with Disabilities Act (ADA). The ADA prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation and places that are open to the general public to ensure that people with disabilities have the same rights and opportunities as everyone else.

You are no doubt familiar with the need to comply with the ADA in all areas of your business, but disability inclusion reaches far beyond compliance with the law. Proactively supporting inclusivity in your organization can have important and meaningful impact for your employees, customers and communities. CEB, now part of Gartner, found that highly diverse and inclusive organizations had a 26% increase in team collaboration and an 18% increase in team commitment. A study by Harvard Business Review showed that companies with higher-than-average diversity had 19% higher innovation revenues. So, how can you effectively and respectfully promote disability inclusion in your organization?

Practice inclusivity

Be sure that your staff and leadership includes a diverse a range of employees and perspectives. When developing anything from internal policies to new products to client-facing marketing campaigns, getting input from employees and clients with disabilities helps ensure that you are addressing their needs rather than operating on assumptions. Martha Bird, Chief Business Anthropologist at ADP says, "It is important to design WITH excluded and diverse communities, not FOR them. Seek their expert input in the process."

Representation is key to meaningful and genuine inclusion. If you have Employee Resource Groups (ERGs) or Business Resource Groups (BRGs) in your organization, you can partner with them on inclusivity initiatives to get valuable firsthand perspectives. At ADP, the Thrive BRG has a mission to understand the diverse impact of disabilities, end the stigma, and bring awareness and education to ADP associates about people living with disabilities. Susan Lodge, a Thrive board member and mother to a son with a genetic disease says, "This BRG has given me a new appreciation for the company I work for and the people that I work with. I no longer feel like I am the only one who faces the challenges that disabilities can bring. We are all in this together."

Work to overcome bias

Inclusivity isn't an "issue" just for people with disabilities; it's important for everyone in your organization. Once you set the goal and expectation for a diverse and inclusive organizational culture, follow up with education aimed at promoting understanding and awareness of unique challenges of people with disabilities as well as the importance of inclusion. For example, adopt a policy of using people first language (PFL). People first language is a way of communicating that shows respect for people with disabilities by focusing on the individual and not their disability. For example, if you were discussing modification to your retail space for your clients, instead of saying "disabled customers", you would use "customers with disabilities." This recognizes that they have disabilities and allows you to be inclusive and respectful in your planning but doesn't use their disabilities to define them entirely.

Disability inclusion in post-COVID business

Inclusion is particularly important right now. The global health crisis has highlighted inequities for people with disabilities. Routine healthcare needs like diagnostic testing and therapies are no longer as easy to access. Virtual and masked communications also present challenges that disproportionately affect people with disabilities. As Giselle Mota, board member of ADP's Thrive BRG, Principal Consultant at ADP on the Future of Work and moderator of an ADP webcast on disability inclusion said, "These are our clients, prospects, coworkers, and employees. How can your organization think about greater equity and inclusivity, especially during these times?"

Senator Tom Harkin On The Future Of Disability Inclusion

Its time to end the mass exclusion of 15% of the global population with a disability. This mass exclusion can not be left to Governments and charities alone, it needs the most powerful force on the planet, business leadership. CEOs make choices and choices create cultures.

Former Iowa Senator Tom Harkin is only too familiar with this, having been instrumental in the implementation of the Americans with Disabilities Act, which celebrated its 30th birthday earlier this year. Most recently he worked with President elect Joe Biden to help draft the incoming administrations disability policy statement.

Additionally, in pursuit of the policy issues which he has dedicated his career to, including those relating to disability inclusion, Senator Harkin established the Harkin Institute for Public Policy & Citizen Engagement, a non-partisan institute. 

Is he happy with the progress that has been made over the past three decades since this major ADA legislation came into effect? 

“Yes, but in a measured way. There were four goals of the Americans with Disabilities Act: full participation, equal opportunity, independent living and economic self-sufficiency. The last one referring to employment and jobs. 

Hospital COVID-19 visitor restrictions must still comply with the ADA

In the midst of the holiday season, COVID-19 cases and hospitalizations across the country continue to rise rapidly. Although protecting the public from COVID-19 is paramount, policies that restrict visitor access in hospitals and other medical centers must still comply with the requirements of the Americans with Disabilities Act (ADA).

Titles II and III of the ADA, and other state and federal laws, require health care facilities to provide reasonable accommodations to ensure equal access to medical treatment for persons with disabilities. These accommodations can include visitors who provide the patient with necessary support services, including communication support, behavior support, and support managing anxiety and other unique needs. Earlier this year, the U.S. Department of Health and Human Services (HHS) issued a bulletin reminding health care providers and covered entities not to overlook their obligations under federal civil rights laws during the COVID-19 pandemic. Similarly, the Centers for Disease Control and Prevention (CDC) encourages restricting visitors to reduce COVID-19 spread, but also recognizes that some visitors are essential for patient care.

Individuals who believe they have been denied reasonable accommodations may file complaints with the HHS Office of Civil Rights (OCR). Consequences may include corrective action or impact on federal funding. In June, the OCR settled a case with a hospital in Connecticut after it received complaints from disability rights organizations alleging that the hospital was failing to provide reasonable modification to its no-visitor policy. The hospital agreed to allow the patient a support person to help with her communication and comprehension during care as part of the settlement.

In sum, when asked by a patient to deviate from standard COVID-19 visitor restriction policies, it is important to avoid blanket denials. It is equally important to document efforts to understand and accommodate requests when they are tied to a patient’s ability to effectively access and receive care. Health care providers should evaluate the reason(s) for the request and engage with the individual to determine how or if reasonable accommodations or modifications to policy can be safely provided when appropriate.

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