ADA in the News: July 7, 2014

Smith v. Department of Public Welfare of the Commonwealth of Pennsylvania – 2:13-cv-05670
On June 12, 2014, the United States filed a Statement of Interest in the case of Smith v. Department of Public Welfare of the Commonwealth of Pennsylvania.  In Smith, the Plaintiffs alleged that the Commonwealth of Pennsylvania put them at serious risk of institutionalization by reducing funding for Act 150, a state-funded program providing attendant care services in the community.  The Statement of Interest highlights the legal principles governing ADA claims, including the fact that individuals who are at risk of entering an institution because of a state policy need not wait until they enter the institution in order to assert an ADA integration claim.  The Statement of Interest also addressed what constitutes a request for a reasonable accommodation for the purposes of bringing an ADA integration claim.
Statement of Interest (Word) | (PDF)
America's Largest Drug Store Chain to Pay $180,000 to Settle EEOC Disability Discrimination Suit
The EEOC's lawsuit charged that former cashier Josefina Hernandez, who has Type II Diabetes, was fired by a South San Francisco Walgreens because of her disability after she ate a $1.39 bag of chips during a hypoglycemic attack in order to stabilize her blood sugar level.  Hernandez had worked for Walgreen for almost 18 years with no disciplinary record, and Walgreens knew of her diabetes.  Yet the company security officer testified that he did not understand nor did he seek clarification when Hernandez wrote, "My sugar low.  Not have time," in reply to his request for an explanation of why she took the chips before paying.
SU settles lawsuit over accessibility complaints
Southern University settled a lawsuit over the Baton Rouge campus’ failure to accommodate disabled students, agreeing to make several upgrades that are expected to cost the cash-strapped college millions over the next five years.
Understanding Disability: ADA protects people who have disabilities
Santa Fe New
The ADA protects people with disabilities from discrimination in all employment practices, including job application procedures, hiring, firing, training, pay issues, promotion, benefits and the granting of leave. If an individual is regarded as having a disability, he or she is also protected from harassment on the job. The ADA is landmark civil rights legislation to prevent discrimination against people experiencing disabilities in all areas of life.
Can you link insurance premiums to smoking?
The ADA Argument
Another potential legal problem arises from the Americans with Disabilities Act’s (ADA) prohibition against discrimination in offering benefits with respect to qualified individuals with disabilities. Although the courts have yet to identify smoking itself as a disability, there is no denying that it often involves a host of attendant health issues that are disabilities.
Moreover, because the ADA prohibits discrimination not just upon the basis of an accepted disability but also  against employees who are “regarded as” being disabled, it is not a huge stretch to imagine a court allowing a lawsuit to proceed based upon an argument that charging a higher premium to a smoker was sufficient grounds to state a “regarded as” claim. Still, it’s likely that having an acceptable wellness program would provide some insulation from such outcomes.
Proponents for smokers have also argued that, as the less affluent, less educated are much more likely to smoke and to fail to participate in wellness and smoke-cessation programs, imposing a premium cost for those choices has a disproportionate adverse impact on such people, which may amount to racial or national origin discrimination – the idea being that minorities and certain ethnicities are much more likely to be smokers. A related argument is that smoking is often not so much a matter of choice, but an addiction that began earlier in life. While these kind of arguments have yet to gain much legal traction, in the right context and upon appealing facts, they probably will continue to be advanced.
ADA Claims On Rise
Mondaq News Alerts
With the passage of the Americans with Disabilities Amendments Act of 2008 (ADAAA), many predicted a drastic increase in the number of ADA claims. That prediction has proven true.
"Before passage of the ADAAA, people with particular impairments such as limb amputation, multiple sclerosis, HIV/AIDS, diabetes, muscular dystrophy, intellectual disabilities, epilepsy and cancer were not necessarily or by definition covered by the law," said Richard Cohen.
According to Cohen, the intent of the law "was to create a broader and more liberal standard as to the definition and nature of an impairment" covered. "Congress explicitly intended that 'the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis.'"
"So just about any physical or mental disorder or condition may, in fact, be covered," he said. "Every day I see new cases filed and decided which hold that just about any impairment may be a covered disability."
With the rise in ADA claims comes an increased need to provide training to the entire workforce, according to Cohen.
"One of the most important things is that, from the top down, an employer must communicate effectively that everyone will be treated fairly," he said. "That is, that you are truly an equal opportunity employer."
City schools, plaintiffs wrap up ADA case
Richmond Times-Dispatch
Nine years, more than 80 federally mediated meetings and $20 million later, Richmond Public Schools is finally in compliance with federal building accessibility standards.
Benefits of Telecommuting for People with Disabilities
Tech Cocktail
At this point, employers would be wise to review the job descriptions of their employees and evaluate whether their physical presences are required to effectively perform their duties. Before changing policies, they may measure the successes of potential modifications to learn which accommodations and elements of telecommuting are most beneficial. Although the legal system is not presuming to dictate the telecommuting policies of private entities, it is reasonably demanding that the needs of workers with disabilities be accommodated via this option when necessary.
NMSU launches door-to-door bus to aid disabled students (link disabled by source)
Las Cruces Sun-News
The pilot program will bus main campus students with permanent or temporary physical disabilities to and from their homes and between classes for free.
Alternative source for this story available from the New Mexico State University News Center 
ADA lawsuit: The $32000 parking stall
Manteca Bulletin
There’s a potential $32,000 pay day in Manteca for someone trying to make a living by filing Americans with Disabilities Act lawsuits for alleged non-compliance to federal rules.

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