United States: Is Telecommuting A Reasonable Accommodation In Ohio?
Mondaq News Alerts
In the recently issued decision in McDaniel v. Wilkie, the U.S. District Court for the Northern District of Ohio considered whether telecommuting constitutes a reasonable accommodation under the Americans with Disabilities Act (ADA). The short answer is that it can constitute a reasonable accommodation if it would enable an employee to satisfactorily perform the essential functions of his or her position and does not impose an undue burden on the employer.
In this case, an employer initially permitted an employee to telecommute four days per week. When the employee's productivity declined, the employer informed her that she must improve her productivity or her telecommuting privileges would be suspended. One week later, the employee requested full-time telecommuting as an accommodation for her alleged disability. The employer denied her request and revoked her telecommuting arrangement altogether. The employee resigned and claimed that her employer subjected her to a hostile work environment, failed to accommodate her alleged disability, and constructively discharged her.
With respect to the employee's failure to accommodate claim, the court held that the employee failed to establish that she was, in fact, "disabled" within the meaning of the ADA. The court noted that having a medical diagnosis—in this case, anxiety and depression—and alleging that these conditions were made worse while working for the employer is not enough to establish a disability. The employee must also establish that that he or she was substantially limited with respect to a major life activity, which the employee in this case failed to do.
In addition, the court found that the telecommuting arrangement that the employee requested was not a reasonable accommodation because the employee was not able to satisfactorily perform her duties within that accommodation request. Further, the court found that the employee failed to engage in the interactive process in good faith insofar as she refused to sign a medical release permitting the employer to request medical information regarding her alleged disabilities in order to evaluate other potential accommodations and then resigned while the process was ongoing.
The judge granted summary judgment in favor of the employer on the employee's hostile work environment, failure to accommodate, and constructive discharge claims.
Key Takeaways
This case provides employers faced with a request for a telecommuting arrangement as a disability accommodation with several takeaways. Most importantly, this decision reminds employers that when engaging in the interactive process with an employee who has requested a disability accommodation, they may want to consider whether telecommuting constitutes a reasonable accommodation that would enable the employee to perform the essential functions of his or her position. The decision also demonstrates that courts may recognize that factors, such as an employee's performance issues, can undermine the reasonableness of a telecommuting arrangement as an accommodation.
USA Parking Services to Pay $150,000 to Settle EEOC Disability Discrimination Lawsuit
According to the EEOC's lawsuit, USA Parking Services, Inc. violated the law by refusing to hire a deaf applicant for a valet attendant position based on the assumption that a deaf person could not perform the essential functions of the job rather than conduct an individualized assessment of his abilities.
In addition to monetary relief, the consent decree requires USA Parking Services, Inc. to affirmatively recruit applicants who are deaf and hearing-impaired and to add TTY capability to its discrimination hotline for the use of deaf and hearing-impaired applicants and employees. USA Parking Services, Inc. has also agreed to change the essential qualifications of the valet attendant position to make clear that the job can be performed by anyone who can communicate effectively with customers, whether that communication is verbal or written. To prevent similar discrimination against future deaf or hearing- impaired applicants, USA Parking Services, Inc. will educate its workforce on disability discrimination through annual management and employee training across all of its locations in Miami-Dade and Broward Counties. For the duration of the consent decree, USA Parking Services, Inc. will report to the EEOC about any complaints of disability discrimination made by employees or job applicants.
Failure to hire on the basis of stereotypes and assumptions about a disability and the failure to conduct an individualized assessment as to whether a particular disabled applicant can perform the job violates the Americans with Disabilities Act (ADA), as amended.
"The EEOC will continue to fight for deaf job applicants' rights under the ADA to be provided an interpreter when they are interviewed for employment. Deaf individuals too often face discrimination at the interview stage which denies them even the opportunity to be considered for employment" said Robert E. Weisberg, regional attorney for the EEOC Miami District Office.
Michael Farrell, director of the EEOC Miami District Office, added, "Disabled individuals are entitled to a fair opportunity to work under the ADA, and that includes a fair hiring process. Individuals with disabilities must be evaluated on whether they can perform the essential functions of the job, not on stereotypes or assumptions."
Municipalities and universities new targets in ADA website accessibility lawsuits
EmployerLINC
For years, private businesses have faced demand letters and litigation over the accessibility of their websites by individuals with disabilities, with 2018 seeing a record number of website accessibility lawsuits under the Americans with Disabilities Act. Now, plaintiffs’ firms are focusing on new targets, including municipalities, county governments, and universities.
People with disabilities access websites in a variety of ways, and common website problems may create barriers for these individuals. For example, a blind person may use screen-reading software, which reads the text of the website out loud to the individual. If the website has used images to convey information without using text alternatives, the screen-reading software cannot convey that information and the blind person will not be able to use the website. The “World Wide Web Consortium’s Web Content Accessibility Guidelines” – otherwise known as WCAG – is the most commonly accepted voluntary set of guidelines for ensuring websites are accessible to all.
Title II of the ADA applies to public entities, including state and local governments and public universities. Public entities are required to “take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.” 28 C.F.R. §35.160(a)(1). Moreover, Section 504 of the Rehabilitation Act of 1973 also prohibits entities that receive federal funding from discriminating against individuals with disabilities. In January 2018, updated Section 508 regulations specifically adopted WCAG version 2.0 level AA as the web accessibility standard. Some states, including Oklahoma, also have state laws regarding electronic and information technology accessibility for state agencies.
You and the Law: What you don't know about the ADA can be costly
Hanford Sentinel
“I inherited a commercial rental property recently that was built in the 1940's. I understand that the Americans with Disability Act requires accessibility, but all the doorways to these shops are too narrow to allow someone in a wheelchair to enter.
“Is it true that because it was built years before the ADA became law, I am ‘grand-fathered’ in, and do not have to meet current accessibility requirements? A contractor told me that to meet ADA requirements, I would have to tear down and rebuild as there is no other way. So, am I safe in doing nothing?”
How People's Misconceptions Of Disability Lead To Toxic Microaggressions
Forbes
In general, society and the media have two extremely polarizing views on people with disabilities. They are viewed as either remarkable and heroic or victims and pitiful. Since disability falls on a wide range of a spectrum, these stereotypes are very limiting and can lead to severe repercussions for the disabled community and their views of themselves. For the outside, able-bodied population, these biases cause them to set forth unconscious microaggression toward their peers with disabilities.