Supreme Court declines to revisit needle-phobic pharmacist's ADA case
HR Dive
- The U.S. Supreme Court has declined to review an appeals court's ruling that the Americans with Disabilities Act (ADA) did not require Rite Aid to exempt a pharmacist with trypanophobia — fear of needles — from administering immunizations.
- The 2nd U.S. Circuit Court of Appeals held earlier this year that injections were an essential job function for Rite Aid pharmacists. Because the ADA does not require employers to remove essential functions as an accommodation, the employer didn't run afoul of the law when it fired the employee because of his fear of needles, the court held.
- The 2nd Circuit's ruling, which will remain intact, overturned a $2.6 million jury award for the pharmacist.
Pharmacy Chain Not Required To Reasonably Accommodate Needle-Phobic Pharmacist
JD Supra
Trypanophobia—the fear of needles—played a significant role in a case brought against Rite Aid Pharmacy under the Americans with Disabilities Act (ADA). In Stevens v. Rite Aid Corp., the Second Circuit overturned a jury verdict awarding substantial damages to a Rite Aid pharmacist who was terminated after he said he could not perform immunization injections because of a needle phobia.
In 2011, Rite Aid and other large pharmacy chains started requiring pharmacists to perform immunizations to fill an unmet need for vaccinations in the healthcare market. Rite Aid revised its pharmacist job description to include immunizations as one of the essential duties and responsibilities for pharmacists and required that each pharmacist hold a valid immunization permit.
Pharmacist Christopher Stevens asserted that his needle phobia was a disability under the ADA and sought a reasonable accommodation so that he would not have to perform immunizations. Rite Aid responded that the ADA did not apply to trypanophobia, no reasonable accommodation was required, and he would be fired if he did not complete immunization training. When Stevens advised Rite Aid he could not complete the training, he was terminated for refusing to perform customer immunizations, an essential function of his job.
ADA Does Not Require Extended Leave Beyond FMLA, 7th Circuit Finds
SHRM
An extended leave of absence for an employee is not a reasonable accommodation required by the Americans with Disabilities Act (ADA), according to the 7th U.S. Circuit Court of Appeals. The court affirmed summary judgment against an employee who needed a two- to three-month absence in addition to Family and Medical Leave Act (FMLA) leave.
New Mexico Court Rules Employee Is Entitled To Nationwide Discovery in FMLA Case
The National Law Review
On October 10, 2017, Judge Ritter issued the Memorandum Opinion and Order which granted a former employee’s Motion to Compel and held that the former employee was entitled to information from the company’s nationwide offices relating to other employees fired under the company’s 100% healed policy and other FMLA or ADA complaints.
Matthew Donlin (“Donlin”) worked as a general manager for Petco (the “Company”). During 2015, he began suffering “flare-ups” from his medical condition and ultimately took FMLA leave in February 2016. In May, Donlin’s doctor cleared him to return to work, with certain limitations; however, the Company refused to let him return unless his doctor certified that he was 100% recovered. Ultimately, Donlin’s employment with the Company was terminated after he failed to complete a reasonable accommodation package, which was a condition of his reinstatement. Donlin subsequently filed suit against the Company alleging violations of the American with Disabilities Act (“ADA”) and the Family Medical Leave Act (“FMLA”).
Harm from employer's failure to give injured worker FMLA notice sufficiently alleged
Even though an employer argued that a fired former employee's FMLA claims against it amount to mere technical violations of the statute's notice requirements and should be dismissed, a federal district court in Florida would not dismiss her claims. Failure to provide notice may qualify as actionable interference, restraint, or denial of an employee's rights as long as she demonstrated she was "prejudiced" in some way, such as "some harm remediable by either 'damages' or 'equitable relief.'" The employee pleaded she was damaged by the failure to notify her of her FMLA rights after she was injured from a fall down the stairs at work and required continuing medical treatment, and she sought "actual damages suffered, including back pay, front pay, loss of benefits, future pecuniary loss, and lost future earnings capacity." At the motion to dismiss stage, her allegations were sufficient. ( Canigiani v Banc of America Merchant Services, LLC, SDFla, October 3, 2017, Bloom, B.)
EEOC Filed More than 80 Lawsuits this Summer – Why Employers Should Pay Attention
JD Supra
Indeed, the EEOC filed far more than 80 lawsuits during July, August, and September 2017 – the last quarter of its fiscal year. Approximately 50 percent of those lawsuits targeted employers for alleged individual and, more significantly, systemic violations of the Americans with Disabilities Act (ADA). No doubt, the EEOC is continuing its targeted, systemic focus on ADA violations, and employers should be concerned.
JD Supra
In Van Rossum v. Baltimore County, Maryland, a jury awarded a community health inspector $250,000 in compensatory damages and $530,000 in back pay after deciding that her employer, Baltimore County, violated the ADA by refusing to accommodate her and, after she exhausted FMLA leave, threatening her with discharge and pressuring her to retire if she did not return to work. In addition, the Court awarded Van Rossum $487,616.25 in reasonable attorneys’ fees plus $32,472.30 in litigation costs, which brought the total award to more than $1.3 million.
So, what went wrong and why did the court not buy the County’s argument that Van Rossum’s application for social security disability insurance benefits (SSDI) established she was not a qualified individual with a disability and, therefore, was too disabled to work?
Accommodations Beyond ADA Requirements Can Backfire on Employers
JD Supra
The Americans with Disabilities Act does not require employers to always allow disabled people to return to the job. In order to claim protection under the law, the disabled employee must show that he or she can perform the job’s essential functions. The employer is never required to reinstate an employee who cannot perform these functions, even with accommodations in place.
PR Web (press release)
On October 11, 2017, parents of children with disabilities, the Georgia Advocacy Office, the Center for Public Representation, the Bazelon Center for Mental Health Law, The Arc, DLA Piper LLP, and the Goodmark Law Firm filed a class action lawsuit in federal court alleging that the State of Georgia has discriminated against thousands of public school students with disabilities by providing them with a separate and unequal education via the State’s Georgia Network for Educational and Therapeutic Supports Program (GNETS).
The complaint filed in United States District Court for the Northern District of Georgia, Case No. 1:17-cv-3999-SCJ (N.D. Ga), alleges that the State, in denying GNETS students the opportunity to be educated with their non-disabled peers in neighborhood schools violates the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, and the Fourteenth Amendment to the United States Constitution. For more information about the litigation, please visit http://www.centerforpublicrep.org/court_case/gao-v-georgia/.
How to make your business accessible to people with disabilities
The Business Journals
When was the last time you measured the slope of the curb ramp leading from your parking lot to your facility? Do you have the International Symbol of Access on your storefront and restroom door? Does it include Braille? Have you recently measured the access aisles of your parking spaces?
If you have not checked your facility for compliance with the Americans with Disabilities Act (ADA) accessibility guidelines, essentially a Congressionally mandated building code; a “professional” plaintiff may do it for you. Accessibility lawsuits are rapidly growing:
- In 2016, 6,601 ADA Title III lawsuits were filed in federal court — 1,812 more than in 2015 — a 37 percent increase.
- There were more than 250 lawsuits filed in 2016 about allegedly inaccessible websites and/or mobile apps. This does not include the hundreds, if not thousands, of demand letters plaintiffs sent to businesses asserting accessibility claims.
You should protect your business now, as an ounce of prevention will decrease and may even eliminate the risk that your business will be the next bull’s-eye.
CU Trades Seek Help From Congress & DoJ in ADA Battle
Credit Union Times
Credit union trade groups are urging Congress to enact legislation and the Justice Department to issue final rules that would assist businesses in fighting lawsuits contending that their websites violate Americans With Disabilities Act.
At least nine lawsuits have been filed against credit unions alleging that their websites are inaccessible to the visually impaired. All the complaints were filed by one plaintiff who is represented by the same attorney.
As a result, the credit union trade groups are seeking help from the federal government, saying the issue remains unclear and leads to lawsuits.
Focus on disability employment this month
Business Management Daily
President Trump has declared October 2017 as National Disability Employment Awareness Month. With the theme “Inclusion Drives Innovation,” the month provides employers with a reminder that they should examine their accommodation practices under the ADA to ensure they remain in compliance.
ADA self-audit
In fact, October could be the month to perform a mini-ADA audit. A few key questions can get the process started.
First, do you have an anti-discrimination policy that includes qualified applicants and employees with a disability? If not, now is the time to draft one.
Second, have all management and hiring personnel been trained on the nuances of ADA compliance? Conduct ADA training on a regular basis to ensure new hires are brought up to speed. Pertinent personnel who have not had the training recently should brush up on the law’s requirements and recent court decisions.
Have any employees or applicants filed disability discrimination complaints recently? If so, did the employee or applicant have a legitimate grievance? Did you perform an after-action review to understand what went wrong and how to fix problems?