Advance Copy: Final Rule Requiring Movie Theaters to Provide Captioning and Audio Description – Signed by the Attorney General on November 21, 2016
Discriminating against disabled workers, applicants costs utility $1.6 million
Hr Morning
Employers feared that disability discrimination cases would skyrocket after Congress passed the ADA Amendments Act a few years ago. Those fears are being realized. And the cost of the latest disability discrimination settlement: almost $1.6 million.
Georgia Power Company, an electric utility company headquartered in Atlanta, will pay $1,586,500 to settle a class disability discrimination lawsuit brought by the EEOC, the agency announced.
EEOC filed suit in 2013, charging that Georgia Power violated federal law by refusing to hire applicants and firing employees based on their disabilities or perceived disabilities.
5 Ways Employers Can Promote The Mental Health Of Employees
Huffington Post
An estimated 10.4 million American workers use illegal drugs and 24% report drinking alcohol during the workday at least once in the past year. Major depressive disorder affects an estimated 14.8 million people ages 18 and older. Depression is one of the top three problems employee assistance professionals confront in the workplace. Moreover, work itself can play a significant role in the development of mental health issues. Many Americans work more hours without an associated increase in pay, and 83% feel stressed about their jobs.
Legal Corner: How long do employers have to comply with a reasonable accommodation under the ADA?
KPLC-TV
Question: How long do employers have to comply with a reasonable accommodation under the ADA?
An abundance of information can be found on the website eeoc.gov. This includes several questions regarding “reasonable accommodations.” The definition is pretty broad: “Any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy the privileges and benefits of employment equal to those enjoyed by employees without disabilities.”
The website also clearly addresses the following employer’s questions:
What are my obligations?
How identify a reasonable accommodation?
When does it become an undue hardship?
There is also a free consultant service – Job Accommodation Network (JAN) whose phone number is 1-800-526-7234.
The website does not offer any guidelines for specific time periods as it would vary some much depending on the type of job. However, one can assume that a “reasonable” accommodation would require a “reasonable” amount of time. And there are technical assistants available that want to guide employers that want to comply with the requirements of the ADA.
Court Again Approves Safety-Based Medical Examination without Individualized Assessment
Lexology
Does an employer violate the Americans with Disabilities Act (ADA) if it requires an entire class of employees to undergo a medical examination without assessing each class member’s individual characteristics? Filling a relative void in case law, the Eighth Circuit recently said no – at least where the employer has credible safety concerns and seeks to comply with federal regulations and guidelines.
Parker v. Crete Carrier Corporation involved an employer policy requiring all commercial truck drivers with a body mass index (BMI) of 35 or more to be tested for obstructive sleep apnea (OSA). OSA can cause loss of sleep and driver fatigue, which significantly increases the risk of accidents. Under Federal Motor Carrier Safety Administration (FMCSA) regulations, conditions like OSA can prevent a driver from being medically certified.
The best predictor of OSA is obesity. The FMCSA Medical Review Board (MRB) has long recommended sleep studies for obese drivers. In 2012, it recommended, in conjunction with the Motor Carrier Safety Advisory Committee, that drivers with a BMI of 35 or higher be tested for OSA. In 2016, it changed the recommendation to call for testing of drivers with a BMI of at least 40, or of at least 33 when additional risk factors exist. Crete implemented its policy in 2010 based on MRB recommendations.
Parker, a truck driver, had a BMI over 35. Crete sent him to conduct a sleep study, but he refused. When Crete removed him from service, he sued. Why? Parker argued Crete had failed to consider that (1) his own healthcare provider had produced a note stating that a sleep study was not medically necessary; (2) he had no documented history of sleep issues at work; and (3) he had received awards for his accident-free driving record. These personal factors, Parker claimed, removed any reasonable basis for conducting a medical examination.
In October 2016, a panel of the Eighth Circuit affirmed summary judgment for Crete. Noting that the ADA requires employee medical examinations to be job-related and consistent with business necessity, the court held that Crete’s policy met both standards. The exam was job-related, since it related to Parker’s safety as a driver, and Crete’s legitimate concerns about public safety demonstrated business necessity.
This left Parker’s objection that Crete failed to take account of his individual circumstances. The court rejected the notion that the ADA always requires review of an employee’s unique characteristics. To the contrary, employers may require medical testing of an entire class of employees, so long as the criteria used to define the class are consistent with business necessity. This was the case here, as BMI is the best indicator of OSA. While testing may reveal that some class members do not pose a safety risk, this did not render Crete’s class definition unreasonable. Crete did not have to wait for Parker to have an accident first.
On November 16, the Eighth Circuit denied reconsideration en banc, allowing the decision to stand. While good news for employers, the opinion does highlight the need for caution. Any policy based on class-wide characteristics must be evaluated with care. This is one area where it pays to consult with counsel!
Narcoleptic Cop Wins Quarter Million Dollar ADA Jury Verdict
Lexology
A year ago I did a post entitled “Don’t Be Chained To ‘Fears, Biases or Stereotypes’ Against People With Disabilities.” Apparently the Austin police department learned this the hard way.
An Austin-based detective with narcolepsy was awarded more than $240,000 by a jury in an Americans With Disabilities Act (”ADA”) “failure to accommodate” and retaliation case.
She had worked for the PD since 1997, was promoted to detective, but in 2009 was diagnosed with narcolepsy. She produced a doctor’s certification that this did not interfere with her job duties, and asked for accommodations which involved later regular start times and (preferably) no evening or night shifts. She was ultimately fired.
The Mayo Clinic notes that “Narcolepsy is a chronic sleep disorder characterized by overwhelming daytime drowsiness and sudden attacks of sleep. People with narcolepsy often find it difficult to stay awake for long periods of time, regardless of the circumstances. Narcolepsy can cause serious disruptions in your daily routine. … Narcolepsy is a chronic condition for which there’s no cure.”
A pharmaceutical web site states that “Narcolepsy is a chronic disorder involving nerve cells and chemicals in the brain. Unfortunately, it’s frequently not understood, and approximately half of the people affected by it remain undiagnosed.”
Plaintiff’s lawyer said that “One of the biggest challenges in this case was overcoming the stereotypes, media portrayals, and public perception of individuals with narcolepsy.”
This is something that I’ve tried to drive home to employers seemingly forever: “fears, biases or stereotypes” against people with disabilities is at the core of lawsuits and charges filed under the ADA. An EEOC attorney said recently that “It’s not only bad business to forgo hiring a qualified employee simply because of fears, biases or stereotypes against people with disabilities, it’s also a violation of the law.”
Another EEOC attorney said that “People with disabilities have one of the highest unemployment rates in the country. Providing equal employment opportunities to all job applicants – including those with disabilities – is not just the law, it is good for our economy and our workplaces.”
Takeaway: The ADA provides that an employer must engage in an “interactive process” with an employee (or applicant) who is claiming a disability, towards the end that a reasonable accommodation is provided. That is, it must engage in meaningful discussions as to the proposed accommodation to the known physical or mental limitations of an otherwise qualified individual. The EEOC, and the courts, have consistently held that an employer has an “affirmative duty” to engage in this interactive process with the employee.
Small businesses new 'low-hanging fruit' of ADA lawsuits
Desert Dispatch
As a professional in the construction industry, I'm not at this time involved in legislation or the creation of relative laws. On the other hand, I do see first-hand interpretations and expressions and perhaps more importantly how laws tangibly advance with each successive code cycle. Not sure if this is a benefit or a curse, but in any event, 40 years in the industry comes with perspective.
When an employee demands extended leave
Oregon Business News
In the (fictional) mailbag today The Bullard Edge fields a question from Wendy, the HR Director at Mid-Town Medical Center. Wendy asks about an employee who is demanding an extended medical leave (seven months have been taken already). Although the employee is not cooperating, she has thrown out buzzy words: disability, reasonable accommodation, EEOC, and lawsuit. Wendy is concerned about these buzz words and wants to know what her options are. Here is Wendy’s question and our response (which includes an editorial regarding EEOC’s press release practices).
Website Accessibility and the ADA: The Clear and Present Dangers
Chain Store Age
In 1990, the United States Congress enacted the Americans with Disabilities Act (ADA) to provide protections and accommodations for the millions of disabled Americans. Perhaps the most ground breaking impact of the ADA is enumerated under Title III which states that “[n]o individual shall be discriminated against 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 by any person who owns, leases (or leases to), or operates a place of public accommodation.”
Title III of the ADA by its very definition applies to “any place of public accommodation” and resulted in the enforcement of the Act against business establishments to implement accessibility standards to ensure equal enjoyment by disabled individuals. What ensued were a multitude of lawsuits where the ADA was used to ensure that retail stores, office buildings, and business establishments physically altered their structures to allow persons with disabilities equal and free access. While the ultimate ends to achieve accessibility was necessary, the means employed resulted in astronomical expenses in the form of construction costs, attorney fees and statutory penalties.