ADA in the News October 13, 2020

Woman files about 500 lawsuits across US as 'tester' of disability compliance

A disabled Florida woman paid a virtual visit to Maine and left a trail of lawsuits in her wake. Six to be exact.

Deborah Laufer is described in the federal lawsuits as a “tester” for the purpose of asserting her civil rights and ensuring that places of public accommodation comply with the Americans With Disabilities Act. Her six lawsuits in Maine are among hundreds she has filed in more than a dozen states.

Her lawsuits contend lodging establishments and their online booking services failed to identify accessible rooms, provide an option for booking an accessible room, and provide sufficient information about accessible features.

She contended they discriminated against her by failing to ensure that she could enjoy the same experience as those without disabilities.

Hearing-impaired worker fired: Was there an ADA accommodation?

A disabled employee failed a safety test and was fired, but now the company’s in hot water for not trying hard enough to find an ADA accommodation for the worker.

Here’s a breakdown of the case.

Suggested alternatives

Mark Mlsna was a train conductor with Union Pacific who had a hearing disability. Employees were required to wear ear protection, but when Mlsna wore it, his hearing was impaired even more and he wasn’t able to pass a hearing safety test.

Mlsna suggested alternative options, but the company claimed it looked into them and found no solution that would work. Mlsna was later fired, and he sued for an ADA violation, claiming Union Pacific failed to accommodate his disability.

A district court initially sided with the company, claiming Mlsna wasn’t qualified for the job because of his hearing impairment.

But the 7th Circuit reversed that decision. First, it questioned whether passing the hearing safety test was an essential function of Mlsna’s job. The 7th Circuit also pointed out that Mlsna suggested reasonable accommodations that the company flat-out refused to consider.

Union Pacific didn’t carry out its duties under the ADA.

Cite: Mlsna v. Union Pacific Railroad Co., 9/14/20.

Law professors discuss the ADA, accessibility

On July 26, 1990, the Americans with Disabilities Act, which extended protections against discrimination to people with disabilities, was signed into law. In its 30-year history, the ADA has facilitated strides in educational accommodations and workplace accessibility for people with disabilities, but there is still work to be done, even at Yale.

The Solomon Center for Health Law and Policy is hosting a yearlong Zoom series called “ADA @ 30” to examine the history and legacy of the ADA. In the latest installment on Monday, two disability law professors, UC Davis’ Jasmine Harris LAW ’05 and Saint Louis University’s Elizabeth Pendo, discussed the past, present and future of the ADA. After brief presentations by both Harris and Pendo, the panel moved to questions prepared by law students who are members of ThinkDifferent, the law school disability affinity group. The conversation was moderated by Natalie Nogueira LAW ’23, who also facilitated the open Q&A afterward.

Harris and Pendo spoke about the ADA and its relevance to healthcare, education and the workplace in light of COVID-19. Disability rights are particularly relevant now because of the intersections between race and disability, healthcare access and disability, and more. Despite the many challenges associated with COVID-19, Harris framed this time as an opportunity to reimagine the “way we have ordered the world.”

“People have said, ‘Gosh, you know disability rights — they’re important, but in order to make concepts like universal design a reality, we need to hit a stop button,’” Harris said during her presentation. “And we can’t ever just hit the pause button and rethink the way in which we do business, the way in which we develop services, the way in which we educate. Well, guess what? COVID-19 is our pause button.”

Struggling With Your Mental Health at Work? You May Be Covered by the ADA

Key Takeaways

  • Mental health issues have been exacerbated by the COVID-19 pandemic.
  • You may qualify for Americans with Disabilities Act accommodations if you are seeking help from a doctor or mental health professional.
  • Your employer can provide accommodations in the workplace to help you balance any mental health issues or conditions you may have with your workload and environment.

Do I Have to Return to Work During the Pandemic? Massachusetts Federal Court Grants Reprieve to Asthmatic Employee

It is just a matter of time before most employers will have to decide whether and when it is legally permissible to require their respective workforces to return to the office after months of teleworking during the ongoing COVID-19 pandemic. Most employers, however, do not anticipate that an employee would take matters into their own hands and seek a court order permitting them to continue teleworking BEFORE the employer even requires employees to return to the office.

When faced with this novel request, however, on September 16, 2020, a federal district court in Massachusetts sided with an asthmatic employee and ordered (at least preliminarily, until the parties have the opportunity to further litigate the matter) that the employer not require the employee to return to the workplace, deferring the employee’s termination for at least sixty (60) days.  The case at issue, Peeples v. Clinical Support Options, Inc., involved an employee with asthma, who argued that their respiratory impairment constituted a disability, which the employer must reasonably accommodate during the COVID-19 pandemic, by permitting continued work from home.

This court’s decision, preliminarily siding with the employee, is significant for employers because it:  i) represents a departure from the federal courts’ traditional pre-pandemic view that telework is not generally required as a “reasonable accommodation” to an employee’s request under the Americans with Disabilities Act (the ADA); ii)  recognizes that employees can often perform the essential functions of the job from home, especially where they have already been doing it successfully for months, as in this case, when the employee had been telecommunicating for four months; and, iii)  recognizes that respiratory impairments, such as asthma, are likely to constitute an ADA disability, at least during the pandemic.

The opinion only strictly applies to employers in Massachusetts and, as we recently reported, the EEOC has released guidance stating that businesses will not be required to automaticallyallow remote work as a reasonable accommodation. 

However, employers are likely to see more and more requests of this nature as Americans continue to return to the physical workplace.   Accordingly, be mindful of the following best practices:

  • It remains critical for an employer to fairly evaluate whether an employee can truly perform the essential functions of the job from home, as prior justifications that the employee’s physical presence in the office is required because of “supervisory responsibilities” or, conversely, to be “supervised” are quickly eroding because of the pandemic;
  • In addition, an employer must engage in the “interactive process” to better understand the employee’s underlying health condition and the greater risk of serious illness if the employee contracts the virus because of their underlying condition;
  • Finally, an employer must ensure that it is following all federal, state and local guidance and safety protocols and is communicating same to its employees to limit claims by an employee that returning to work imposes a serious health risk that is covered by the ADA.

How to help people with learning disabilities cast their votes

There are a lot of Americans who find the act of voting difficult because of learning disabilities and their obstacles are getting new attention as awareness of these disabilities increases.

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