Second Circuit: ADAAA Doesn’t Cover Inability to Perform Job
Joining the other federal appellate panels to consider the issue, the U.S. Court of Appeals for the Second Circuit held that the Americans with Disabilities Amendments Act (ADAAA) did not alter or erode the understanding that the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.
When he began working for Bloomberg in May 2011, Ronald Woolf signed a voluntary “self-identification form” stating that he did not have a disability and had no history of physical or mental impairments that substantially limited one or more major life activities.
Between 2011 and 2013, however, Woolf began suffering migraines that he claimed left him temporarily incapacitated. The migraines were related to his stress at work and worsened as he received performance reviews that placed him in the lower third of employees at the company.
As his managers began notifying him of his underperformance, low credibility internally, poor problem-solving skills and struggles to collaborate, Woolf asked whether he could transfer within the company, including to Asia.
The migraines and poor performance both continued until May 2013, when Woolf requested that he be permitted to continue performing the same job without being managed by his current supervisors due to his worsening migraines.
Bloomberg did not transfer Woolf but immediately granted medical leave. After another low performance review in September 2013, he was terminated.
Woolf responded with a lawsuit alleging violation of various state and federal laws, including discrimination and retaliation under the Americans with Disabilities Act (ADA). On cross motions for summary judgment, a New York federal court judge ruled in favor of the employer after determining that Woolf was not disabled under the ADA.
On appeal, Woolf argued that his serious migraine condition, which was triggered by workplace stress, substantially limited his major life activity of working.
But the Second Circuit disagreed. By Woolf’s own admissions, he believed he could perform his job—if he were transferred to a different location or if he were managed by different supervisors.
This left him without recourse under the ADA, the panel said, because where a plaintiff’s condition leaves him unable to perform only a single, specific job, he has failed to establish a substantial impairment to his major life activity of working.
Woolf countered that precedential decisions establishing this understanding in the Second Circuit predated the ADAAA, in which Congress instructed courts to construe the definition of “disability” in the ADA “in favor of broad coverage of individuals.”
The panel was not persuaded.
“[N]othing in the ADAAA’s text, or its legislative history for that matter, suggests that Congress intended to modify, let alone abandon altogether, the well-established understanding that an employee’s ‘inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working,’” the court wrote.
“This longstanding, common-sense principle of law recognizes that employees who are precluded only from doing their specific job, or from working under a specific supervisor, do not have a ‘disability.’ Rather, an employee alleging a substantial limitation in the major life activity of working must show that the limitation affects the ability to ‘perform a class … or broad range of jobs.’”
Even after the ADAAA’s enactment, the Second Circuit has stuck with its position in non-precedential summary orders, the court noted, and the Equal Employment Opportunity Commission’s most recent interpretive guidance reinforced this understanding.
In addition, every circuit that has addressed the question post-ADAAA has ruled that the law “did not alter or erode our well-settled understanding that the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working,” the panel wrote, citing decisions from the First, Sixth, Seventh, Tenth and D.C. Circuits.
“As relevant here, because Woolf does not attempt to show that his work-induced impairment substantially limited his ability to work in a class or broad range of jobs, no reasonable factfinder could conclude that Woolf has a ‘disability’ within the meaning of the ADA,” the Second Circuit said, affirming summary judgment in favor of the employer.
To read the opinion in Woolf v. Strada, click here.
Why it matters: The Second Circuit confirmed that even post-ADAAA, an employee’s inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working, joining the other circuits to consider the issue.
2nd Cir.: Sales rep with migraines triggered by work had no ADA disability
Dive Brief:
- An employee's inability to perform his job because of the stress created by the job did not make him an individual with a disability as defined by the Americans with Disabilities Act (ADA), the 2nd U.S. Circuit Court of Appeals has ruled. "Rather, an employee alleging a substantial limitation in the major life activity of working must show that the limitation affects the ability to perform a class or broad range of jobs," the appeals court said (Woolf v. Strada, et al., No. 19-860-cv (2nd Cir. Feb. 6, 2020)).
- Ronald Woolf, a sales representative for Bloomberg L.P., sued his former employer and his direct supervisors claiming that he was not able to do the job because of migraines caused by work stress. Woolf had received job reviews ranking him in the lower third of employees at the company. His treating neurologist provided a letter explaining that Woolf was at risk for a stroke or heart attack because of the stress he was experiencing at work, the court said. Woolf asked for a transfer and eventually for different supervisors. The transfer was denied but Woolf was granted medical leave with full pay and the court noted that the employer "regularly encouraged Woolf to take medical leave to address his medical condition." Woolf was fired after another low performance review.
- The district court held that Woolf did not have a disability because, while the plaintiff's condition leaves him unable to perform only a single job, he failed to establish a substantial impairment to his major life activity of working and it noted that he had admitted he could do the job if he had different supervisors. The appeals court agreed, observing that "the record amply demonstrates that Woolf believed he could perform the same job if he were transferred to a different location or if he were managed by different supervisors" and that Woolf had not attempted to show that his "work-induced impairment" substantially limited his ability to work in a broad range of jobs.
Dive Insight:
The ADA protects qualified individuals with a disability from workplace bias as long as the employer has 15 or more employees. A person with a disability, as defined by the ADA, is someone who has a physical or mental impairment that substantially limits one or more major life activities. Examples of major life activities include a broad range of activities including walking, talking and working, according to the ADA National Network.
Woolf argued that the trial court had used the stricter definition of disability in use before the passage of the ADA amendments act. The appeals court disagreed with Woolf and noted that it was joining its "sister Circuits" in holding that the 2008 amendments did not alter the ADA's "well-settled understanding" that the inability to do a particular job did not constitute a substantial limitation in the major life activity of working.
Although employers are quick to accept an employee's claim that he or she is disabled under the ADA, this case illustrates that not all conditions qualify as a disability and poor job performance can and should be appropriately addressed, wrote Squire Patton Boggs Associate Melissa Legault in a blog post. She also cautioned that employers should remember that some state and local laws provide broader coverage than the ADA.
Appeals Court Rejects Disability Discrimination Claim Of Employee With Supervisor-Induced Stress And Migraines
When an employee requests an accommodation or asserts a claim under the Americans with Disabilities Act, an employer’s second question—right after “Are we even covered by the ADA?”—will likely be: “Did/does the employee have a disability?” (Claims from employees who are merely perceived as disabled are a topic for another day.) The definition of a disability has two parts. First, it must be “a physical or mental impairment” and, second, it must “substantially limit one or more major life activities.” In a recent decision, the United States Court of Appeals for the Second Circuit held that an employee who allegedly suffered stress and incapacitating migraines from working under his supervisors did not have a disability under the ADA because there was no substantial limitation on a major life activity.
In Woolf v. Strada, plaintiff Woolf provided medical documentation from a treating neurologist indicating that the “emotional stress at work” was the “primary trigger” for Woolf’s migraines and that, absent a change in the work environment, the stress would increase his risk of heart attack and stroke. Woolf repeatedly requested transfers within the company, including to the same position in a different location or under different supervisors. Those requests were denied and he was instead granted intermittent medical leave with full pay as an accommodation. Still, Woolf’s performance declined due to the migraines and he was ultimately terminated.
When Woolf subsequently sued under the ADA and state law, alleging failure to accommodate and discriminatory termination, the key issue was whether the migraines substantially limited the major life activity of working. The appeals court answered in the negative because Woolf’s work was only limited in his specific job under his specific supervisors. The court relied on
the well-established understanding that an employee’s inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. This long-standing, common-sense principle of law recognizes that employees who are precluded only from doing their specific job, or from working under a specific supervisor, do not have a “disability.” Rather, an employee alleging a substantial limitation in the major life activity of working must show that the limitation affects the ability to “perform a class . . . or broad range of jobs.”
Employers considering accommodation requests under the ADA should thus examine how narrow an employee’s alleged limitation is before determining whether the employee indeed has a disability. But bear in mind two points. First, a disability need only substantially limit one major life activity. There may be other activities—walking, breathing, learning, etc.—that are substantially limited even if the impairment falls short in limiting working. Second, as always, state and local laws may be broader than the ADA in their definition of disability or otherwise.
Violation of the ADA May Disable Supplier's Ability to Bill Medicare
Shannon B. Hartsfield
The Americans with Disabilities Act of 1990, 42 U.S.C. §§12101 et seq.(ADA), is designed to prohibit discrimination against individuals with disabilities. This includes discrimination in public accommodations. Most businesses open to the public, such as doctors' offices and other healthcare suppliers' premises, must comply with ADA requirements. Virtually every business serving the public is subject to the ADA. Violation of the ADA can lead to civil money penalties, and any person who is subject to discrimination on the basis of disability may bring a civil action. 28 C.F.R. §36.501.
For durable medical equipment, prosthetics, orthotics and supplies (DMEPOS) suppliers that participate in Medicare, failure to comply with the ADA can have dire consequences. The Centers for Medicare & Medicaid Services (CMS) can revoke a provider or supplier's Medicare enrollment and the corresponding provider or supplier agreement for a number of reasons, including in situations where the provider or supplier is determined not to be in compliance with Medicare enrollment requirements and has not submitted a plan of correction. 42 C.F.R. §424.535. Among the other requirements for DMEPOS suppliers is the mandate that the business be operated in compliance with federal regulatory requirements that "ensure accessibility for the disabled." 42 C.F.R. §424.57(c)(1). Additionally, the business must be "accessible." Id. at (c)(7)(i)(C).
In Senegal Enter. Med., Inc. v. CMS, the Departmental Appeals Board for the U.S. Department of Health and Human Services, Docket No. C-19-387, Civil Remedies Div., Decision No. CR5477 (Nov. 25, 2019), issued an opinion affirming CMS' decision to revoke the Medicare billing privileges of DMEPOS supplier Senegal Enterprises Medical, Inc. (Senegal). On July 3, 2018, a site inspector attempted to visit Senegal's location, but was unable to access it. Senegal was notified, in letters dated Aug. 30, 2018, that its Medicare supplier number would be revoked in 30 days and that it would be barred from reenrolling in Medicare for one year. The supplier was given the opportunity to submit a corrective action plan and submit a request for reconsideration if it believed the determination was incorrect.
Senegal submitted a corrective action plan that the National Supplier Clearinghouse (NSC) received on Sept. 13, 2018. A site inspector returned to the facility a short time later. Unfortunately for Senegal, the inspector found the site to be inaccessible and not ADA-compliant due to the fact that several steps were needed to get into the facility. NSC sent Senegal a letter on Oct. 2, 2018, concluding that there was no error in terminating the Medicare billing number due to the failure to comply with the ADA and a lack of verifiable explanation for the noncompliance. Senegal submitted a request for reconsideration on Oct. 17, 2018. The supplier indicated that it would be installing a ramp later that month.
In support of its decision to uphold the termination, the appeals board noted that, in order to bill Medicare, a DMEPOS supplier must meet the Medicare enrollment standards, "including the requirement to maintain a physical location that is accessible to the public." Therefore, it appears that Senegal's compliance efforts amounted to too little, too late. If the accessibility issues had been addressed after the supplier received notice of the problem, and prior to the second inspection, it likely could have avoided Medicare termination and a one-year reenrollment bar. This case serves as a reminder of the importance of maintaining a site that is accessible by all members of the public.
ZZZZ… Yes, Staying Awake is an Essential Function of the Job
The Fifth Circuit Court of Appeals recently handed employers an important legal victory with respect to managing employees with disabilities and considering accommodation requests. The well-reasoned opinion provides important reminders to employers and employees alike.
In Clark v. Champion Nat’l Sec., Inc., the Fifth Circuit upheld the trial court’s dismissal of an employee’s suit alleging disability discrimination and retaliation. George Clark was a personnel manager for Champion National Security, Inc., which provides uniformed security services to other companies. As a manager, Clark was responsible for interviewing, hiring, disciplining and terminating security guards. Clark was also responsible for training security guards on Champion’s policies, including its “alertness policy.” Champion’s alertness policy provided that “[f]ailure to maintain alertness: sleeping or giving the appearance of sleeping at any time while on duty or on the client’s property (including breaks) is considered a terminable offense.” Champion requires a photograph of the non-alert employee and two witness statements to support a termination. Champion testified that because of Clark’s managerial position, it was even more important for him to demonstrate compliance with its policies and model good behavior.
Clark is an insulin-dependent Type II diabetic. During his employment with Champion, he requested and was provided two reasonable accommodations: (1) a refrigerator in his office in which to store insulin; and (2) flexibility to leave work to attend doctor’s appointments. Clark did not request any other accommodations related to diabetes. Clark did request exceptions to Champion’s grooming policy, which requires clean-shaven faces and tucked in shirts, however, the exceptions were denied because Clark did not show the requests were related to his diabetic condition.
In August 2016, another employee told Clark’s manager that Clark had been closing his office door for long periods of time and could be heard snoring. The following month, Clark’s manager received a photo anonymously by text message that showed Clark asleep at his desk. Champion declined to terminate Clark upon this occurrence because using an anonymous picture as sole proof would have deviated from its usual requirement of two witness statements.
In December 2017, however, an employee told Clark’s manager that Clark was asleep at his desk. Clark’s manager then went to Clark’s office, took a picture of him sleeping and immediately sent the picture to corporate management with employee statements corroborating the event. Clark awoke on his own, and his manager informed him that at least two people had witnessed him sleeping on the job. Clark’s manager testified that Clark did not appear to be in distress upon waking. Clark told his manager he thought he might be experiencing a diabetic emergency and was going to the hospital. While at the emergency room, Clark received a phone call from Champion informing him he was terminated for violating the alertness policy.
Clark brought a suit against Champion alleging discrimination and harassment on the basis of disability and failure to accommodate. Both parties filed motions for summary judgment, and the trial court granted Champion’s motion dismissing all of Clark’s claims. The Fifth Circuit upheld the trial court’s decision. Specifically, the Firth Circuit found that Clark presented no direct evidence of discrimination on the basis of disability and Clark was not a “qualified individual” because there was no evidence he could perform an essential function of the job -- staying awake -- with or without an accommodation. The court emphasized the ADA does not insulate an employee from adverse action taken by an employer because of misconduct in the workplace, even if the employee’s improper behavior is arguably attributable to an impairment. The court held that the district court did not err in finding no failure to accommodate Clark’s disability or failure to engage in the interactive process because Clark never proposed an accommodation for diabetes-induced unconsciousness and amnesia that would enable him to do the essential functions of his job. The court acknowledged that what Clark was really seeking was an “after-the-fact, retroactive exception to the alertness policy” as an accommodation for his underlying disability — diabetes -- but stated there is no such accommodation under the ADA. Finally, the court held that there was no evidence of disability-based harassment because Clark failed to show Champion’s refusal to grant exceptions to its grooming policy were in any way based on his diabetes. Clark also failed to show a link between his filing an internal complaint alleging disability-based harassment and Champion’s decision to terminate him, and therefore his retaliation claim failed. The court explained the mere fact that an employer disagrees with or seeks clarification from an employee about the reasonableness or necessity of a requested accommodation does not amount to actionable disability-based harassment or retaliation.
The court’s analysis of this case provides a reminder of a couple best practices for employers:
- Engage in the ADA Interactive Process: An employer must consider whether the accommodation requested is reasonable by engaging in an interactive process with the employee and, when appropriate, the employee’s physician(s). This case demonstrates that it is acceptable for the employer to seek more information from the employee and his medical providers when assessing a request for accommodation. The case also reminds employers that if the request is denied, the employer must articulate particularized reasons why the request is not reasonable.
- Enforce Employment Policies and Disciplinary Actions Uniformly: If an employer points to a violation of its policies to support its legitimate business reason for termination, the employer must also be able to demonstrate it enforces the policy uniformly and indiscriminately. In this case, the employer’s policy was that termination for violation of the alertness policy required a photograph and two witness statements. So, when the manager received an anonymous photo of Clark sleeping in his office, the employer declined to terminate at that time because the incident was not witnessed by two employees and would have been inconsistent with its discipline of other similarly situated employees.
This Fifth Circuit Decision is a welcome one for employers. The court affirmed that consistent enforcement of reasonable disciplinary rules generally does not violate the ADA, and an after-the-fact, retroactive exception to the employer’s policies is not an ADA accommodation. Nevertheless, employers in the Fifth Circuit and beyond should keep in mind there is a duty to engage in the interactive process and offer accommodations to employees who identify a disability and request reasonable accommodations; there are no magic words employees must use to invoke that duty. Also, because courts give deference to employers in determining what constitutes an essential job function, written, up-to-date job descriptions that spell out what is essential will be considered evidence of the essential functions of the job
DOT Proposes New Regulations on Service Animals in Air Travel
Passengers seeking to travel with their service animals in the main cabin may soon face new restrictions from airlines, as the Department of Transportation (“DOT”) recently published a Notice of Proposed Rulemaking (“NPRM”) to alter existing DOT regulations. 85 Fed. Reg. 6448 (Feb. 5, 2020). The NPRM represents DOT’s latest effort to carry out the Air Carrier Access Act of 1986, 49 U.S.C. § 1705 (“ACAA”), which prohibits air carriers from discriminating against a qualified individual on the basis of physical or mental impairment. The NPRM arises, in part, from DOT’s stated desire to harmonize its regulations with rules promulgated by the Department of Justice to implement Titles II and III of the American’s with Disabilities Act.
The proposed rules, if implemented, would define the previously undefined term “service animal” to mean “a dog that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” 85 Fed. Reg. at 6474. Whereas current DOT rules require airlines to recognize a variety of animals as “service animals,” this new definition specifically allows airlines to limit service animals to dogs. Id. at 6450. The NPRM states this limitation is in response to concerns from both airlines and disability advocates regarding attempts by passengers to fly with unusual species like ducks, pigs, and iguanas. Id. at 6450. Airlines would have the option to recognize other species as service animals, but would not be required to do so under the proposed rules. Id. at 6454.
Importantly for many travelers, the proposed rule goes on to state that “[e]motional support animals, comfort animals, companionship animals, and service animals in training are not service animals” under the regulations. 85 Fed. Reg. at 6474. This definition draws a clear distinction between “service animals” (which are trained to do work) and “emotional support animals” (which are not). The proposed rule would specifically allow airlines to treat emotional support animals as ordinary pets. This is a significant departure from DOT’s current regulations, which “require airlines to recognize emotional support animals as service animals” regardless of whether they have received any specialized training. Id. at 6450; see 14 CFR § 382.117(e).
Airlines would be required to allow a qualifying service animal to accompany a passenger with a disability, provided that the animal does not present a threat to health and safety or would otherwise violate FAA safety requirements. 85 Fed. Reg. at 6476. However, the airline may ask a passenger if the service animal must accompany the passenger due to a disability, and may also ask what work the animal has been trained to perform. Id. at 6475. The proposed rules would also allow airlines to use a standard form that requires a passenger to attest to the training and behavior of the service animal. Id. at 6464-66. Finally, airlines would be permitted to limit the number of service animals to two per passenger, and to require service animals to be leashed or harnessed while in flight. Id. at 6452.
The proposed rules would provide airlines with a safe harbor to restrict the presence of pets and service animals within the cabin. Airlines should be aware, however, that the NPRM represents a regulatory ceiling, rather than a floor. As the NPRM makes clear, air carriers “are not permitted to establish additional restrictions on the transport of service animals outside of those specifically permitted by the provisions in this Part,” unless required by applicable law. 85 Fed. Reg. at 6476.
The public comment period is currently open through April 6, 2020. Information on how to submit a comment can be found in the NPRM.
5 Tips For Job-Hunting Individuals With A Disability
Finding a job that’s the right fit is difficult. It’s even harder if you are one of the millions of Americans with a disability.
As motivated, qualified and determined as individuals with disabilities may be, discrimination and incorrect stereotypes remain a persistent barrier to this group’s entrance into the workforce.
The job application and job interview process is the perfect place to put those myths to rest and prove doubters wrong. Individuals with disabilities can do just that by:
1. Highlighting their own abilities.
Success starts with choosing a role that suits someone’s knowledge, expertise and interests, so individuals can enter into any potential employment situation with confidence. I work with many people who are unsure if it’s a good idea to reference their disability on a resume. Unless it affects their ability to effectively perform essential job functions, there is no reason to do so.
Instead, individuals should take every possible chance, whether on a resume or in an interview, to remind employers why they are the right fit for a job. They should note their skills and experience, and continuously express their excitement to become a capable part of the team.
2. Refusing to answer inappropriate and illegal questions.
While we have come a long way in disability rights, there’s still a lot of confusion about interview dos and don’ts – and I’m not just talking about what to wear or what key words or phrases to include.
As far as interview content goes, if someone has a disability, they are not legally required to disclose it to an employer. Under the Americans with Disabilities Act (ADA), an employer cannot legally ask if someone has a disability before making a job offer.
If an employer does ask, rather than reacting negatively, an individual with a disability should divert the question by asking in reply, “Is that a legal question to ask in an interview?” If they are persistent and continue to push for an answer, that may be an indicator of an noninclusive work environment individuals are better off avoiding.
However, it’s important to note that once a conditional offer is made, the employer can ask questions about an individual’s health, disability, limitations, and even require that someone have a medical examination. These questions are completely legal as long as the employer treats all the candidates the same.
3. Addressing gaps in work history.
It’s okay to be honest with a potential employer and let them know that the reason one had to stop working was because of a serious decline in health. This is true especially if it prompted them to apply for Social Security Disability Insurance (SSDI) benefits.
This is a perfectly reasonable situation that employers should understand. After making that brief explanation, individuals should focus on highlighting their work history and the experience they had prior to taking a leave from work. In my work with SSDI recipients, I’ve found that the majority are older individuals who have more than 20 years of work experience and industry knowledge – valuable assets that put many individuals with disabilities ahead of other candidates.
4. Knowing what accommodations one needs to work efficiently.
Let employers know about the technologies and accommodations that help you work efficiently. Need a standing desk? Flexible work hours? The opportunity to work remotely? Screen-reading software? Whatever accommodations an individual with a disability may need, the sooner they make a potential employer aware, the better.
Only 40% of employers are confident about how to implement disability accommodations, and many think these accommodations are way more expensive than reality. A report from the Job Accommodation Network (JAN) under the U.S. Department of Labor’s Office of Disability Employment Policy found that 57% of accommodations don’t cost businesses anything, and the rest are typically under $500.
Keep in mind that employers are legally required to provide all employees with reasonable accommodations. So if an individual with a disability is upfront about their needs early, once the job has been offered, this provides the employer with time and the ability to take steps with making reasonable accommodations.
5. Learning from the experience.
Whether someone does or does not have a disability, there will be some job applications they don’t hear back on, and some job interviews they just don’t ace. And that’s fine.
It’s important in these situations that individuals with disabilities don’t get discouraged. They need to keep searching and pursuing their goals, while also asking for feedback about how they might improve in the future.
Eventually, something will stick. Employers have a long way to go in terms of debunking myths and tapping into this group of highly talented individuals. Only 33% of people with disabilities were employed in 2018 (the latest reported). But as more and more individuals with disabilities follow these five tips and secure gainful employment, we will see progress. This number will only continue to grow.
Student files discrimination lawsuit against University of Maryland, alleging repeated gluten exposure
A student with celiac disease has filed a federal lawsuit against the University of Maryland, College Park, alleging the institution discriminated against her medical condition and repeatedly served her foods containing gluten.
Allegany County native Hannah Smith filed the complaint Feb. 20, describing several incidents in which she became violently ill after she was mistakenly served food containing gluten. Celiac disease is an autoimmune disorder in which eating gluten can cause an immune response than can damages the small intestines.
$2 million disability discrimination lawsuit settlement offers lessons for all operators
The Equal Employment Opportunity Commission is commending Prestige Senior Living and Prestige Care for committing to meeting the requirements of the Americans with Disabilities Act and agreeing to implement changes after settling a disability discrimination lawsuit for $2 million. The case offers lessons for all senior living and skilled nursing operators.
“We encourage all employers in the nursing and assisted living industry to follow suit and review their disability accommodation policies and practices to ensure they are in compliance with federal law,” Anna Park, regional attorney for the EEOC’s Los Angeles District Office, said in a statement.
In a statement to McKnight’s Senior Living, Prestige said it “is fully committed to fostering a work environment where every individual is treated with respect and dignity and is offered the appropriate accommodations to perform their responsibilities.”
According to the EEOC, former policies of the Vancouver, WA-based companies and their affiliated assisted living communities and skilled nursing facilities required employees to be able to perform 100% of their job duties without restriction, accommodation or engaging in what the agency calls “the interactive process.” The federal agency also alleged that Prestige’s “inflexible leave policies” led to the firing of employees with disabilities.
“They had to be 100% healed, 100% fit for duty, or they wouldn’t be allowed to return to work” after an illness or injury, Melissa Barrios, director of the EEOC’s Fresno Local Office, told McKnight’s Senior Living.
One example from the lawsuit, Barrios said, involved a female employee with medical complications from a knee injury that her physician said would require an additional four to six weeks to heal. “Because she had exhausted her leave, they felt they were no longer obligated to accommodate any of her restrictions and so she was subsequently terminated,” she said.
“Many companies believe that, ‘Well, I have fulfilled the Family and Medical Leave Act mandate and that’s all that I need to do,” Barrios said. “But under the ADA, there are some additional obligations that employers have to address. They have to meet with the individual, see if there are any accommodations for the individual to be able to return to work and, if not, they could grant potential additional leave for that healing process — some reasonable time for that person to be able to get back to work.”
The EEOC calls that discussion the interactive process, and the need for it also applies to potential hires, Barrios said.
“When a new employee is coming into the workplace, many times, especially with hospitals, skilled nursing facilities and things of that nature, prospective employees are sent for a medical exam just to make sure that they are able to perform the duties,” she said. “But again, if there are some restrictions based on a disability, they [the employer] shouldn’t automatically say, ‘No, you are not suitable for employment.’ There is an accommodation process, and having that 100% [requirement] will obviously restrict individuals’ ability to be able to gain employment.”
In some instances, employers will not be able to accommodate someone’s needs, Barrios said, “but we ask people to at least engage in that discussion and not automatically close the door just because they’re not 100%.”
In addition to monetary relief, as part of the five-year consent decree settling the lawsuit, the EEOC said Prestige agreed to retain an external equal employment opportunity monitor to review and revise its policies and procedures regarding ADA compliance and to ensure that the companies and communities engage in the interactive process and provide reasonable accommodations. Prestige also agreed to provide training and to designate coordinators to handle disability accommodation requests and disability discrimination complaints. Also, eligible claimants will be notified of their right to request a reasonable accommodation when applying to work for Prestige.
“We’re satisfied that we’ve found an equitable resolution with the EEOC and look forward putting this chapter behind us so that we can continue to create rewarding workplaces and focus on the exceptional care we provide to our residents every day,” Prestige told McKnight’s Senior Living.
The settlement covers Prestige locations in California, Oregon and Washington. The company has more than 80 locations throughout the western United States, also including sites in Alaska, Arizona, Idaho, Montana and Nevada, according to its website.
How do you design a building for people who can't hear?
Gallaudet University is leading a project called Deafspace, which is rethinking public and private spaces for the millions of Americans who are deaf or hard of hearing.
Employment Law Post-Op - The Tale of the Tardy Technician
Woody Allen famously said that 80% of success is showing up. However, in some settings, including hospitals, it is not enough to show up. You also have to show up on time! This point was recently emphasized in a case out of Arizona – Cooper v Dignity Health.
The case, which shows how to properly handle an accommodation request, was filed by Heather Cooper, an employee of Dignity Health, which operated as St. Joseph’s Hospital and Medical Center. Cooper held the position of Intraoperative Neuro Monitoring Technologist (a catchy title, but I will just call them “Techs”). Cooper was fired for failing to show up to work on time.
Can You Lose Your Job If You Are Quarantined During The Coronavirus Outbreak? What You Need To Know
The Wuhan Coronavirus (2019-nCoV) outbreak continues to spread with an ever-increasing number of deaths and infected individuals. With the ease in which it spreads, authorities have imposed quarantines, such as on a cruise ship. But what happens if you have to miss work as a result of quarantine?