ADA in the News November 16, 2020

Transgender deputy sheriff who was denied transition-related surgery can proceed with claims against county and sheriff's office

A transgender Houston County Deputy Sheriff who was denied "sex change surgery" based on an exclusion in the county's health care plan can proceed with her Title VII, Title I ADA and federal equal protection clause claims against the county and the Sheriff's Office, a federal district court in Georgia ruled. The court found the sheriff's office was not entitled to sovereign immunity because it failed to show it was acting as an arm of the state when it provided health care benefits. The court, however, dismissed the Title II ADA and state and federal equal protection claims against the County Board of Commissioners and the sheriff in his individual capacity. (Lange v Houston County, MDGa, October 30, 2020, Treadwell, M.)

Payroll manager fired for misconduct, not her association with disabled son
An employer's rejection of its payroll manager's request to take off early every afternoon for six weeks for her son's summer camp—he had Fragile X Syndrome and autism—was not evidence of discriminatory intent, a federal district court in Pennsylvania ruled, granting summary judgment against her ADA associational discrimination claim. Not only did the employer offer the employee accommodations with her schedule to provide for greater flexibility, it was not required under the ADA to accommodate her son's schedule. Her ADA and FMLA retaliation claims failed as well. ( Kontoulis v Enclara Pharmacia, Inc, EDPa, October 28, 2020, Heffley, M.)

LPN advances claim she was fired for requesting paid FMLA leave after contracting COVID
A nursing and rehabilitation center lost its bid to dismiss a former LPN's FMLA retaliation claim alleging she was fired for requesting paid FMLA leave after she contracted COVID-19 at work. Noting that the employee alleged she was exposed to COVID-19 in April and May, contracted the disease, requested FMLA leave, and was fired in May, a federal district court in Rhode Island found that she pleaded facts sufficient to support a prima facie case at this stage of the litigation. ( Gomes v Steere House, DRI, November 2, 2020, McConnell, J., Jr.)

EEOC Sues Professional Transportation for Disability Discrimination

Professional Transportation, Inc. (PTI), a transportation company head­quartered in Evansville, Ind., with operations throughout the United States, violated federal law by refusing to hire a job applicant because of her opioid addiction disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.

According to the EEOC’s lawsuit, a woman under Suboxone treatment for opioid addiction applied for a driver position at PTI’s Bluefield, W.V., branch. After making a conditional offer, PTI told the applicant that she had to pass a pre-employment drug test. In advance of her drug test, the applicant informed PTI that she was receiving Suboxone treatment but that her medication did not affect her driving ability, the EEOC said.

In response, a PTI human resources official looked up public information on possible safety related side effects of Suboxone. Based on its research and without considering whether the applicant actually experienced any side effects from Suboxone, PTI withdrew its job offer. The EEOC said that the applicant does not experience side effects from Suboxone and that PTI’s decision to reject her based on her prescribed medical treatment was illegal employment discrimination. 

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits disability discrimination in employment, including disqualifying a disabled worker from a job because the worker is receiving medical treatment for a disability, such as use of prescribed medication, when such treatment does not create a significant risk of substantial harm to the health or safety of the worker or others. The EEOC filed suit (U.S. EEOC v. Professional Transportation, Inc., Civil Action No. 1:20-cv-00745) in U.S. District Court for the Southern District of West Virginia (Bluefield), after first attempting to reach a prelitigation settlement through its conciliation process.

“Our nation’s opioid addiction crisis has left many workers under medication-assisted treatments like Suboxone and methadone,” said EEOC Regional Attorney Debra Lawrence. “Employers must respect the ADA rights of such workers by not basing employment decisions on unfounded assumptions about safety risks. The EEOC will continue to protect the rights of workers recovering from opioid addiction.”

Jamie Williamson of the EEOC’s Philadelphia District office added, “We will continue to vigorously enforce the ADA to prevent employers from making discriminatory employment decisions like this, based on stereotypes, myths and fears rather than accurate assessments of a person’s abilities to safely perform the job.”

The lawsuit was commenced by the EEOC’s Pittsburgh Area Office, one of four component offices of the agency’s Philadelphia District Office. The Philadelphia District Office has jurisdiction over West Virginia, Maryland, Pennsylvania, Delaware, and parts of New Jersey and Ohio. Attorneys in the Philadelphia District Office also prosecute discrimination cases in Washington, D.C. and parts of Virginia.

The EEOC has recently published several technical assistance documents to inform the public about the rights of workers, obligations of employers, and the role of health care providers concerning worker opioid addiction and their medical use of opioids: Use of Codeine, Oxycodone, and Other Opioids: Information for Employees (issued August 5, 2020); How Health Care Providers Can Help Current and Former Patients Who Have Used Opioids Stay Employed (issued August 5, 2020).

Valley hotel looks to ban serial suer from filing lawsuits in federal court

A Valley hotel and its attorney are asking a judge to permanently block a notorious serial-suer from filing disability lawsuits in every federal district court in the country.

After his disbarment last year for unethical conduct, Peter Strojnik has continued to file hundreds of cases in federal and state courts alleging claims against hotels for disability access.

Various hotels’ attorneys allege Strojnik’s claims are frivolous.

Settlement reached after clinic allegedly denies service to disabled vet because of service dog

A disabled veteran has settled a lawsuit against a local health services provider after staff at an East Cleveland clinic allegedly refused to perform an examination because of the veteran's service dog. While the health services provider, Northeast Ohio Neighborhood Health Services (NEON) continues to deny any wrongdoing, company officials said in a joint statement that the company has enhanced its intake policies to improve the services it provides.

Question: Is it legal for an employer to ask questions about mental health on a job application? Are there ADA restrictions? —Anonymous

Johnny C. Taylor, Jr.: Thank you for submitting such a timely question. With 1 in 4 workers frequently feeling down, depressed or hopeless, the pandemic is taking a psychological toll on workers and employers alike.

In general, no: Employers cannot ask about your personal health on a job application. Not only is it inappropriate, but it could be considered a violation of the Americans with Disabilities Act (ADA).

According to the U.S. Equal Employment Opportunity Commission (the federal agency that enforces the ADA), employers are prohibited from making medical or disability-related inquiries of applicants, whether verbally or in writing, before making an offer of employment.

It's also important to note that even if an applicant were to request an accommodation for a mental health condition, that does not mean an employer can then inquire about that disability. That said, it does provide the employer permission to request documentation from an appropriate medical care professional about the condition as it relates to the hiring process.

I know that's a seemingly slight distinction. However, it is critical because such a verbal request would be a breach of confidentiality, whereas the documentation would go through the proper channels to protect employee privacy.

I'll add this: Reducing mental health stigma in the workplace is critical. And so is the provision of resources to support employees' well-being. Don't be afraid to ask about these benefits, such as employee assistance programs, while searching for a job. In fact, nearly one-third of employers plan to increase mental health benefits for employees in response to the COVID-19 pandemic.

The job application process is strenuous enough as it is. Know that your mental health is not—and should never be—a liability.

Making the outdoors accessible to all

There are hundreds of hiking, fishing and hunting spots in Oregon. But only a portion of them are accessible to people with disabilities. The Oregon Department of Fish and Wildlife, Travel Oregon, Oregon Adaptive Sports and other organizations are working to identify which spots are the most accessible to everyone.

While there are no identified hunting spots compliant with the federal Americans with Disabilities Act in the northeast region, ODFW has an interactive map and guide to the most accessible hatcheries and areas for fishing on its website at These spots can include paved paths, ramps and accessible restrooms. The Wallowa Hatchery, Jubilee Lake, Morgan Lake and Peach Pond are among some of the accessible spots for fishing for people who have mobility issues.

Can An Employer Make COVID Vaccinations Mandatory?

The Centers for Disease Control and Prevention (CDC) currently estimates that a limited supply of COVID-19 vaccine will become available before the end of 2020.1 While this is good news for those of us who look forward to returning to our favorite pre-pandemic activities, it presents difficult questions for employers. Can an employer require employees to be vaccinated? Should an employer do so? Like most things in 2020, the answer is not easy.

To date, neither the Equal Employment Opportunity Commission (EEOC) nor the Occupational Safety and Health Administration (OSHA) has published specific guidance on the hypothetical question of whether an employer may legally mandate COVID-19 vaccinations. Generally, subject to contrary state or local law, an employer may implement a mandatory influenza (flu) vaccination policy as long as the policy is job-related and provides exemptions based on an employee's ADA covered disability or an employee's Title VII protected sincerely held religious beliefs. Although the EEOC has advised employers to encourage flu shots rather than require them, it has not prohibited employers from mandating flu vaccinations. Likewise, OSHA has not prohibited employers from doing so.2

When the EEOC updated its prior pandemic guidance entitled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act3 (ADA) to address COVID-19, it punted on the question, noting that a vaccine for COVID-19 does not yet exist. Significantly, however, the EEOC declared that COVID-19 meets the ADA's "direct threat standard" which permits employers to engage in broader medical inquiries and procedures in the workplace than normally permitted under the ADA. The EEOC clarified that COVID-19 poses a "significant risk of substantial harm" to individuals in the workplace, clearing the way for employers to implement tests and measures that would otherwise be impermissible under the ADA, such as temperature checks, symptom screening and health questionnaires. The EEOC and/or state and federal authorities are likely to issue further guidance or regulations if and when a COVID-19 vaccine is approved and employers should stay alert for that guidance. But, for now, employers must rely on predictions. Given the present EEOC guidance on flu vaccinations and its declaration that COVID-19 is a "direct threat," most commentators predict that the EEOC would allow an employer to implement a mandatory COVID-19 vaccination policy, as the policy is job-related and provides appropriate exemptions under ADA and Title VII.

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