ADA in the News May 13, 2020

ADA doesn't entitle workers to preferred accommodations, 3rd Cir. says

Dive Brief:

  • An employer’s refusal to provide a worker with her preferred disability accommodation was not evidence that it failed to act in good faith, the 3rd U.S. Circuit Court of Appeals ruled (Keyhani v. Trustees of the University of Pennsylvania, No. 19-2806 (3rd Cir., May 1, 2020)).
  • Tanya Keyhani worked for the University of Pennsylvania's facilities and real estate department. After developing impairments, she requested permission to work from home two days per week; the employer denied her request but offered her a three-day workweek. After several months under that arrangement, the employer informed her that her reduced workload was posing an undue hardship on the business. She eventually returned to a full, on-site schedule with workspace modifications.
  • Keyhani then sued, alleging the employer failed to act in good faith with respect to its accommodation obligations. A federal district court granted summary judgment for the employer and she appealed. On appeal, the 3rd Circuit upheld the lower court's ruling, stating that "[o]ther than her request to work from home two days each week, defendant provided Keyhani with every accommodation she requested." The employee's "preference for one of the two alternative accommodations provided by her doctors is not sufficient to establish that defendant failed to act in good faith under these circumstances."

Dive Insight:

The ADA requires that employers provide reasonable accommodations for employees with disabilities unless the employer would suffer an undue hardship as a result. However, as several courts have concluded, employers are not obligated to grant the reasonable accommodation the employee prefers. Employers need only provide an accommodation that allows an employee with a disability to do his or her job.

Last year, for example, the 2nd Circuit ruled that a hospital employee who was deaf was not entitled to the sign language interpreter and videophone that she requested, noting that "employers are not required to provide an accommodation that the employee prefers — all that is required is that the employer provide an effective accommodation."

Court have extended the same stance to religious accommodations required by Title VII of the Civil Rights Act of 1964. The 10th Circuit, for example, held that an employee had received a reasonable accommodation when his employer allowed him to skip weekend work altogether after he asked that his mandatory overtime be switched from Saturday to Sunday to accommodate his religion. The employee was unhappy with the loss of wages, but the court determined that the employer’s accommodation was reasonable.

Of course, once an employee has requested an accommodation, employers will want to engage in the interactive process to identify possible accommodations. While a failure to engage in that process isn't a per se violation of federal law, such a failure can serve as evidence of discrimination, experts have said. HR can train managers to identify requests that may trigger the employer's ADA responsibilities and to escalate them as appropriate.

Employee with PTSD lashed out at colleagues: Does ADA excuse this?

Disabled employees have certain protections under the ADA, but what happens when their disability causes troubling behavior?

The 1st Circuit examined this question in a recent lawsuit.

Obscene language

Kirstie Trahan, a military vet with PTSD, worked in a call center at Wayfair. She had issues with the close quarters of her work environment and experienced PTSD flashbacks. This resulted in Trahan lashing out at her co-workers, which included the use of obscene language.

HR conducted an investigation into the incident and determined Trahan had violated company policy by failing to treat her colleagues in a “professional manner.” Trahan was then fired for her behavior. She sued, claiming her termination violated the ADA. Trahan also spelled out ways her disability could’ve been accommodated.

But the 1st Circuit ruled in favor of the company. It said Trahan’s behavior was in violation of Wayfair’s policy and a fireable offense.

As for Trahan’s request for an accommodation after she was terminated, the court said she never expressed the need for an accommodation before the incident. It was too late now, the court decided.

If performance issues are caused by a disability, the ADA generally doesn’t require employers to look past them. However, accommodations may be necessary depending on the case.

Cite: Trahan v. Wayfair, 4/21/20.

Class Action Suit Claims ADA Requires Public Accommodation to Prevent Spread of COVID-19 at Facility

Despite significant legal obstacles, on May 4, 2020, a group of plaintiffs filed a class action complaint alleging the Queens Adult Care Center (QACC) violated Title III of the Americans with Disabilities Act (Title III) and its precursor, Section 504 of Rehabilitation Act (Section 504), by failing to provide a level of care to safeguard their health and safety at its assisted living facility during the COVID-19 pandemic.

The plaintiffs seek to certify a class under Federal Rules of Civil Procedure Rule 23(b)(2) or (b)(3) of all current or future residents of QACC during the course of the COVID-19 pandemic who have disabilities that require assistance with activities of daily living.

The proposed class action lawsuit, Schoengood, et al. v. Hofgur LLC d/b/a Queens Adult Care Center and Gefen Senior Group, No. 1:20-cv-02022 (E.D. N.Y.), is the first of its kind seeking to hold a place of public accommodation liable under Title III or Section 504 for not taking adequate measures, in the plaintiffs’ estimation, to prevent or mitigate the spread of COVID-19.

Title III prohibits discrimination on the basis of disability “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a). Title III applies to virtually any business that sells its goods and services directly to consumers.

Section 504 prohibits discrimination on the basis of a disability, providing that “[n]o otherwise qualified individual with a disability … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any [federal] Executive agency ….” 29 U.S.C. § 794.

The plaintiffs base their claims on two more specific obligations under Title III and Section 504. The first requires a public accommodation to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities. The second prohibits the use of criteria or other eligibility standards that have the effect of discriminating on the basis of a disability.

Another strip mall property settles ADA allegations

The owners of a property known as Center West Plaza have settled allegations under Title III of the Americans with Disabilities Act (ADA) to remove barriers and greatly improve physical accessibility, announced U.S. Attorney Ryan K. Patrick.

The United States initiated an investigation into Center West Plaza as part of a compliance review of strip shopping centers after receiving a complaint regarding a similar property.  The investigation revealed that physical barriers existed at various locations in the parking lot and access points of the shopping center.

The settlement agreement requires the property owner to remedy all access barriers the United States has identified within three months.

Under the ADA, persons with disabilities shall be afforded the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages or accommodations equal to that afforded to other individuals.  Title III mandates that no individual shall be discriminated against on the basis of a disability by any person who owns, leases or operates a place of public accommodation.

The Center West Plaza property is a place of public accommodation.  As such, the owner is subject to the Title III requirements.

No Mask, No Service? ADA Considerations for Business Owners Requiring Face Masks in Retail Stores

As numerous jurisdictions now mandate citizens wear face masks in public, many retailers have begun requiring customers to cover their faces as a safety measure to mitigate against the spread of COVID-19 among employees and fellow customers.  Retailers intending to enforce a policy whereby it will turn away customers who refuse to wear face masks should be mindful of abiding by Title III of the Americans with Disabilities Act (“ADA”), which governs retails stores as a place of public accommodation.

May a Business Have a Policy Turning Away Customers Who Refuse to Wear Face Masks?

Likely yes, for the time being.  The ADA generally prohibits eligibility/screening criteria that tend to exclude individuals based on a disability, unless the criteria are necessary for the business to operate safely in providing its goods and services.  Those requirements must be based on actual risks and may not be based on speculation, stereotypes, or generalizations about people with disabilities.  At this time, businesses concerned about the safety of their staff and customers should be justified in relying upon guidance from the Centers for Disease Control and Prevention (CDC), as well as state and local governments’ orders, to justify policies forbidding customers without face masks from entering their stores.  However, as guidance and state/local rules change regularly, retailers should regularly track developments so as not to rely on something that is no longer current and applicable.  Moreover, as a best practice, and to avoid unwelcomed situations at the store, a business choosing to enforce such a policy should clearly communicate it to its customers (including in advance, e.g., via its website).

May a Business Turn Away Customers Who Refuse to Wear a Face Mask, Even Without a General Policy Requiring Face Masks Be Worn in Stores

 It depends.  The ADA permits a retailer to deny goods or services to an individual with a disability if their presence would result in a “direct threat” to the health and safety of others, but only when this threat cannot be eliminated by modifying existing policies, practices or procedures or permitting another type of accommodation.  Whether a customer poses direct threat is an individualized, fact-sensitive inquiry. If a business does not have a clear policy of turning away customers who refuse to wear face masks, and turns away an individual for that reason, the business must be prepared to identify how/why that individual’s specific, observable, condition/behaviors made them a “direct threat”.  For example, if the person exhibited generally recognized symptoms of COVID-19 (such as aggressive coughing compounded with profuse sweating or visible difficulty breathing), refusal of service without a mask on an individualized basis may be justifiable.  Conversely, a business could be hard-pressed to successfully argue that a customer without a face mask posed a “direct threat” if he or she was asymptomatic or if there was some form of accommodation that would have allowed the person to be served (e.g., allowing someone to wear a scarf instead of a mask).  Upon refusing service on “direct threat” grounds, the store should contemporaneously document its actions and justifications in the event their decision is later challenged.

What If a Potential Customer’s Disability Is Uniquely Impacted Due to the Face Mask Requirement?

In limited circumstances, there could be a situation in which a customer cannot wear a face mask due to a legitimate health reason (e.g., a person with a respiratory condition who cannot have their breathing restricted).  In this case, pursuant to the considerations detailed above, a business may not need to alter their face-mask required policy, but in any event should attempt to accommodate that customer in an alternative manner that would continue to protect the store’s employees and other customers while also providing service to the customer (e.g., providing curb-side pick-up; no contact delivery; or assistance via online store services).

Face masks may also present communication barriers to individuals who rely on lip reading to communicate.  The ADA requires retailers to provide effective communication to individuals with disabilities through the provision of auxiliary aids and services that are appropriate for the nature, length, complexity, and context of the communication and the customer’s normal methods of communication.  Tools such as communication via text messaging, a disposable pen/pad, or a sanitized dry erase board could strike the right balance between achieving effective communication and helping to curb the spread of COVID-19.

Can People Without Disabilities Use an ADA ‘Mask Loophole’ in Stores?

For the record, Americans without disabilities are not protected by the federal Americans with Disabilities Act (ADA)

Study shows how Airbnb hosts discriminate against guests with disabilities as sharing economy remains in ADA gray area

(THE CONVERSATION) “How could you see my listing if you’re blind?”

"I'd have to check with our insurance company to see if we're covered to host guests with disabilities."

"Does the dog drive?"

Those are three typical responses we got from Airbnb hosts while posing as guests with disabilities for a study we conducted on the home-sharing service. Some hosts were willing to accommodate us. Some were uneasy. Some were insensitive. We effectively became Airbnb's secret shopper – even secret to Airbnb – to determine if its credo to "belong anywhere" implied that this service was designed with disability access and civil rights in mind.

The ADA and COVID-19: Can Employers Consider Employee Medical Conditions When Bringing Employees Back to Work?

The Americans with Disabilities Act (ADA) prohibits discrimination against employees with disabilities and requires employers to provide reasonable accommodations that will permit disabled employees to perform the essential functions of their job. What are employer obligations under the ADA when employers begin bringing employees back to work, particularly with regard to those employees have known disabilities that may make them more vulnerable to COVID-19 and its effects? This week the EEOC issued guidance on the subject.

According to the EEOC, just because an employee has a medical condition that makes him or her more vulnerable to COVID-19 does not, in and of itself, allow an employer to refuse to return the employee to work. Rather, according to the EEOC, the employer must analyze, on an individualized basis, whether the risk of contracting COVID-19 can be reduced through a reasonable accommodation that does not impose an undue hardship on the employer. Employees may only be excluded from the workplace if the employee's disability poses a direct threat to his or her health that, based upon "reasonable medical judgments," cannot be reduced by reasonable accommodation.

Further, according to the EEOC, if a reasonable accommodation allowing the employee to return to the workplace doesn't exist, employers must consider other options like telework, leave of absence or reassignment to other jobs.

In view of this latest guidance from the EEOC, employers should be cautious before imposing any restrictions on employees based upon known or suspected medical conditions and the risks they may represent in the face of COVID-19. Clearly all employers must remain mindful of their obligations under the ADA along with all the other issues which must be considered in the current health crisis caused by COVID-19 and its impact on the workplace.

EEOC Releases Guidance on Workplace Reasonable Accommodations in New COVID-19 World

In late-March and April 2020, the Equal Employment Opportunity Commission (EEOC) released guidance addressing various questions with answers concerning COVID-19 and related workplace disability-related issues under the Americans with Disabilities Act (ADA).

Most of the questions concern general employee rights and privacy and employer obligations during the current state of the COVID-19 pandemic. A few of the questions relate to the anticipated gradual return to the office of employees temporarily working remotely due to the pandemic as the crisis subsides.

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