ADA in the News November 20, 2020

Settlement Agreement: Massachusetts Department of Children and Families

Jury awards $6.8M to Everett FedEx driver in disability case

FedEx didn’t let him work because of lingering knee issues, even though a doctor said he could.

Termination letter advised employee to 'focus on her health,' ADA suit says

Dive Brief:

·        The U.S. Equal Employment Opportunity Commission (EEOC) sued a Sacramento, California, car dealership, alleging it fired an employee because it learned she was undergoing testing for cancer, the agency announced Nov. 10.

·        After missing several days of work because of a sudden illness, the title clerk told her supervisor she had been hospitalized, was undergoing testing for cancer and that she planned to return to work in a few days. "Soon after, she received a termination letter which stated that her termination was not performance-related and advised her to 'focus on her health,'" according to EEOC.

·        The employer regarded the employee as disabled, in violation of the Americans with Disabilities Act (ADA) the commission alleged. It has requested monetary damages and that the defendants be required to provide training on anti-discrimination laws.

Dive Insight:

"This employee worked successfully for several months but was terminated when her employer learned she was being tested for cancer,” EEOC San Francisco Senior Trial Attorney James Baker said in a statement announcing the lawsuit. "It is illegal for employers to reflexively fire employees after learning of a medical condition."

The ADA protects qualified individuals from workplace discrimination. It also forbids discrimination against a qualified person on the basis of a perceived disability, regardless of whether the person actually has a disability under the ADA. This is known the law's "regarded as" disabled prong.

d as" prong, the ADA Amendments Act of 2008 lowered the bar for such claims so that the focus for establishing coverage is now on "how a person has been treated because of a physical or mental impairment (that is not transitory and minor), rather than on what an employer may have believed about the nature of the person's impairment," according to the EEOC.

Experts say employers can prevent "regarded as" claims by training managers to ask the right questions when employees come forward with a request or begin to struggle with their duties, starting with, as employment law attorney David K. Fram said at a 2018 conference: "How can I help you?"

Fram said that when an employee tells a supervisor that a medical condition is impeding his or her work, a supervisor should know that the interactive process has been triggered and that, if the fix is simple, allow it and document. However, if an employee's condition is obviously interfering with his or her work, managers have a responsibility to speak up, Fram said. The supervisor can take the employee aside, point out the performance problems, and ask how they can help, he suggested. If the employee refuses assistance the supervisor can document that the problem was addressed and assistance was declined.

Up, up and away — except for those with disabilities

The airline industry needs to get up to speed when it comes to removing barriers that impact travelers who have disabilities.

The problems have ranged from a dearth of handicapped-accessible bathrooms to “cargo” weight limits that are so low that standard-model motorized wheelchairs can’t comply.

It tooks years of protest, pressure and politicking to put in place the Americans with Disabilities Act of 1990. And though the law made it illegal to discriminate against people with disabilities in terms of access to transportation (as well as employment opportunities, public accommodations, communications and government activities), the fact remains that it is often more difficult — if not impossible — for travelers with disabilities to, well, travel.

In 2018, Paralyzed Veterans of America felt compelled to file a federal lawsuit against the U.S. Department of Transportation to require that bathrooms on widely used single-aisle aircraft be accessible to those who utilize wheelchairs. It would seem that a cost-benefit analysis left the disabled traveler with the short end of the stick: a bigger bathroom means giving up seats and/​or galley space on aircraft.

Change was to have been made in 2017, but it didn’t happen. Now, the federal Transportation Department is “seeking comment” in its Notice of Proposed Rulemaking on proposed amendments that would improve accessibility of lavatories on single-aisle jetliners. The comment period officially ended in March, but late-filed comments still may be considered.

Also pending is a potential shift in thinking by American Airlines, which is reviewing a policy with a net impact of banning motorized wheelchairs on its regional jets due to weight restrictions. It’s a policy, put in place in the summer, that cut off access to more than 100 destinations for travelers with motorized wheelchairs. The rule change stemmed from a Canadian requirement that required American Airlines to publish cargo weight limitations — which the carrier put at 300 or 400 pounds on baggage and other cargo. A common model of motorized wheelchair, one issued by the U.S. Department of Veterans Affairs, weighs some 450 pounds. The carrier is considering a redo. It’ll take time to accomplish, given the bureaucratic oversight of the Federal Aviation Administration.

Unlike other modes of transportation, airplanes are not subject to the rules of the ADA. Rather, the airline industry is governed by the Air Carrier Access Act of 1986 — which is less restrictive. There’s one reason for that: money. It is expensive to make air travel possible for those with disabilities.

But cost was always an argument in the years running up to passage of the ADA. In the end, Americans were willing to pay the price for the teardown of barriers for the handicapped. It’s time to expand the protections of the ADA to the airline industry if the industry isn’t willing to comply voluntarily.

Can Employers Force Employees To Get A Coronavirus Vaccine?

The coronavirus has been devastating, to say the least. But there has been recent news from pharmaceutical companies indicating promising results from their clinical trials.

For example, Pfizer and BioNTech just announced that after completing a Phase 3 study of their coronavirus vaccine, it had a 95% effectiveness rate. So now, most talk isn’t if we’ll get an effective coronavirus vaccine, but when.

With a vaccine seemingly just around the corner, many employers now face the prospect of deciding whether or not they should have their employees get the coronavirus vaccine. For many employees, it’ll be a choice. For others, it might be a requirement. But is an employer legally allowed to require employees to get the coronavirus vaccine?

The Adoption of a COVID-19 Vaccination Policy in the Workplace

It was not long after the first pharmaceutical company announced a successful Phase 3 trial of a COVID-19 vaccine that questions began to be asked by employers about whether, and under what circumstances, an employer could mandate that employees receive a COVID-19 vaccine as a condition of employment.

While it is presently legal for an employer to require, in certain circumstances, that employees be vaccinated against a pandemic-related virus, it may not always be advisable in every instance. The regulatory guidance currently recommends instituting voluntary vaccination policies. Given the legal risks that could come from a mandatory program, prudence may in fact dictate that a voluntary program be used. Each employer should weigh all of the considerations mentioned below to determine which policy is a good fit for its business. Because of the thicket of legal issues that arise from a mandatory vaccination policy, including the potential for legal claims, this alert is intended to generally address some of the issues that could arise from the implementation of such a policy.

The Americans with Disabilities Act (“ADA”) generally prohibits employers from mandating that employees receive any vaccinations unless they are job-related, consistent with business necessity, and no more intrusive than necessary. In those circumstances, employers are permitted to require that employees be vaccinated against a pandemic-related disease as a term and condition of employment unless an employee is subject to an exemption arising from a medical condition, disability, and/or a sincerely held religious belief, practice, or observance.

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