ADA in the News October 19, 2020

Settlement Agreement:  State of Rhode Island Board of Elections

Colorado restaurants face ADA lawsuits over websites; ‘right to cure’ period in disability law urged

The Colorado Restaurant Association (CRA) issued a warning in their October 5 member newsletter that a blind resident of Douglas County has been filing lawsuits against Colorado businesses, including restaurants, because their websites do not comply with the Americans with Disabilities Act (ADA).

Title III of the ADA, written in 1990, before the internet existed as it does today, prohibits discrimination against persons with disabilities in providing services and goods in places of public accommodation. Courts have ruled that websites fit the definition of places of public accommodation.

But the statute has not been amended since then to specifically address the challenges faced by website owners in keeping their sites legal.

Opioid Crisis: Employers to Accommodate Opioid Use

While the ravages of COVID-19 turned the nation’s attention away from the opioid addiction crisis, the number of opioid overdose deaths has surged during the pandemic. Recognizing that the social and emotional consequences of the pandemic will likely increase the workplace impact of opioid use and co-morbid health conditions, the Equal Employment Opportunity Commission (“EEOC”) recently issued two guidance documents, one for employees and another for health care providers who treat employees:

The primary focus of each guidance is to help employees currently using opioids with a valid prescription or who have a history of opioid addiction to remain employed and receive necessary reasonable accommodations so they can continue to perform well and work safely. The EEOC guidance clearly reaffirms, however, that current illegal opioid use is not a covered disability and that the ADA allows employers to discharge and discipline employees for illegal use of opioids, even if there are no performance or safety problems.

Although the guidance documents are not directed to employers and do not change any previously existing standards, they increase the likelihood that employment claims will result if employers do not properly respond to employees requesting accommodation or seeking treatment for opioid addiction (termed “Opioid Use Disorder” in the guidance).

Review/Update Policies

Employers should review/update ADA accommodation policies, procedures and postings to ensure that employees know of their right to seek accommodation and understand the process for doing so. It should be noted, however, that the new EEOC guidance emphasizes an employer cannot deny reasonable accommodation merely because an employee did not follow a specific process.

Review/Update Forms

The EEOC guidance to health care providers describes information most likely to support a patient’s request for accommodation. This guidance is helpful to employers wanting to update forms relating to requests for accommodation and medical certifications. Many such forms could be improved by asking more detailed questions about the nature of the patient’s functional limitations and by asking the health care provider to address options for effective accommodation.

Review/Update Training

Training should be considered to ensure that supervisors and HR will (1) recognize what kinds of unwritten statements may qualify as a request for accommodation; (2) understand accommodation options; and (3) commit to engaging in robust interactive processes with employees. Training should also cover best practices for documenting workplace impairment, such as avoiding conclusory statements in favor of clear and detailed factual descriptions of behavior.

Practical Takeaways

Because employees with Opioid Use Disorder can often be considered “problem” employees due to lack of productivity, absenteeism, and other issues arising from opioid use, it is more difficult for supervisors to respond objectively to requests for accommodation. Since the new EEOC guidance broadly states that any request for “some type of change in the way things are normally done at work” may qualify as an accommodation request, training supervisors about properly recognizing and responding to such requests is crucial. Now is a good time for employers to evaluate how prepared they are to properly respond to requests for accommodation, which are now more likely to occur, from employees who legally use opioids or need treatment for Opioid Use Disorder. This will help to avoid expensive litigation down the road.

Ex-worker sues Vitro over mask wearing

Dorsey claims ADA violation in removal from position

A former employee of Vitro Autoglass LLC of Tyrone has filed a federal lawsuit in Johnstown charging the company with violating the Americans with Disabilities Act for discharging him because he said he could not wear a face mask while doing his job due to medical conditions.

COVID-19 Is Impacting Your Employees’ Mental Health

Are you prepared? Do you have procedures in place to handle the mounting requests for accommodations?

While my management side employment practice has always included helping employers navigate their legal obligations to accommodate employees with disabilities under various federal, state, and/or local laws, this one aspect has skyrocketed in recent months.

And it’s no wonder. In August, the Centers for Disease Control and Prevention (“CDC”) reported that almost 41% of US adults are struggling with their mental health or substance use.

This is double what has been historically reported pre-pandemic—as we talked about here, 1 in 5 adults suffer from mental illness in any given year, according to the National Alliance on Mental Illness (NAMI).

Allostatic Overload Is Increasing Mental Health Challenges

Now, we add “allostatic overload” to the mix. What the heck is that?

Well, it’s my new favorite term. In a recent essay to the Washington Post Magazine, columnist Karla Miller adeptly describes allostatic overload as the term for what happens to a brain processing stress signals nonstop, which, as she describes, consumes mental resources faster than a person can replenish them.

The bottom line is that, of course, rates of anxiety and depression (to name just two mental health issues) have increased. We have no idea when this pandemic will end, and, uncertainty tends to foster anxiety. Allostatic overload is likely exacerbating these conditions as well as creating them for folks in whom they did not exist.

So, it’s no surprise that we’re seeing increasing mental health challenges in the workplace and corresponding requests for accommodations—the workplace is a microcosm of society, as my partner Rich Cohen often says.

What Can Employers Do?

HBR has some advice on this front, and I agree with most it, including:

  • Talk with your teams about mental health. I think authentic communication destigmatizes the whole idea of mental health as a “problem,” reframes it as a workplace challenge, and presents an opportunity for creative and even innovative ways for people to work together. Communicate. And then communicate a little more. Check in with the people you work with, especially now that you can’t grab lunch or coffee together or just stop by another person’s office or cubicle.
  • Lead by example. As I’ve written countless times in this blog, organizational leaders set the tone, and people tend to follow the leader. If you, as a manager or supervisor, prioritize mental health, your employees are more likely to do so as well.
  • Training, training, training. Training managers and even the C-suite to recognize requests for accommodations for mental health disorders and that providing them complies with federal law. Most accommodations for mental health disorders are inexpensive, if not free.

Results from one (pre-pandemic) study states that nearly 85% of people say they’re uncomfortable discussing mental illness at work, and NAMI estimates that 8 in 10 workers with a mental health condition do not get treatment because of the shame and stigma associated with it. If people aren’t seeking treatment and are uncomfortable talking about mental illness at work, they sure aren’t seeking reasonable accommodations either.

That can land an employer in hot water.

What Else Can Employers Do To Help And Stay Out Of Trouble? Especially About This Whole Idea of “Accommodations”

The Americans with Disabilities Act (ADA) (and other state and local laws) requires employers to engage in an interactive process with an employee to determine reasonable accommodations that help an employee with a physical or mental health impairment perform the essential functions of the person’s job.

(We’ll save employer obligations under the Family Medical Leave Act or the Families First Coronavirus Response Act or various state-specific laws like New York’s for other posts.)

It doesn’t mean that employers must provide whatever an employee requests—an accommodation should not impose an undue burden on the employer; otherwise, it’s not a “reasonable” accommodation.

To comply with the ADA, an employer must engage in the interactive process to gain an understanding of how the disability affects the employee’s ability to do the job.

The interactive process is, to quote The Fray, just a talk—a subheader to the entreaty to “communicate.”

Engaging in the interactive process enables you, as the employer, to determine whether or not an employee requires an accommodation. During this process, you obtain from your employee, or the employee’s health care provider, an understanding of how the disability affects the employee’s ability to do the job. As employers, we have an ongoing duty to engage with employees to determine reasonable accommodations that may be available to enable qualified employees to perform the essential functions of their jobs.

An employer can and should request information about functional limitations caused by the disability so as to comprehend the nature of the employee’s difficulties, how an accommodation could alleviate an employee’s limitations, and which accommodations may be appropriate.

I listed several common accommodations in a prior post about returning to work during the pandemic:

  • elimination or substitution of “marginal” functions (i.e., incidental job duties and not essential functions of a particular job, or
  • temporary modification of work schedules, or
  • increasing social distancing by moving a person’s workspace.

Also, the website JAN provides an extensive list of accommodations for employees who suffer with mental health issues including flexible scheduling, additional time to learn new tasks, time off for therapy, frequent breaks, checklists. The point is that effective accommodations depend on an employee’s job duties, the workplace itself, and the type of job and position.

Finally, and critical for employers, document substantially your efforts to engage in the interactive process, conversations with employees during the process, and any determination not to provide an accommodation because of an undue burden. This will mitigate a company’s risk in case the employee files a charge of discrimination or a lawsuit.

As employers, we certainly cannot prevent allostatic overload, but we can certainly accommodate its increasing effect on employees’ mental health by engaging in the interactive process and working with employees in compliance with the ADA.

The Answer To Boring Employee Engagement Surveys? A Disability and Mental Health Town Hall

Could a company-wide town hall be the answer to connecting remote workers on issues of huge concern? I think so. Take mental health and learning disabilities—two topics that affect more than 20% of Americans every day at work.

Returning to work after the employee’s or family member’s COVID-19 illness

Q: I WAS off work for 2 months as a result of my COVID-19 infection. I was hospitalized and received treatments while under quarantine, Thank God I was eventually relieved of my symptoms and a couple of tests later showed negative findings. My doctors informed me that I can return to work without risk to me and my co-employees. When I called my employer I was told that I needed to submit two negative COVID-19 tests before returning to work. The next day, I received a call from HR that I was being terminated because “they just could not take the chance.” What are my rights?

A: The continuing uncertainty brought by the COVID-19 pandemic has undoubtedly created fear among us. Nowhere is this fear more evident than in the workplace, as employees return to work after the nearing completion of the stay at home order. It has become another challenge, especially for those employees who recovered from a positive or “presumptive positive” diagnosis of COVID-19, or who had cared for a family member who had a COVID-19 illness.

These returning employees may be subjected to discrimination or harassment based on their actual or (simply) perceived disability, or based on a record or history of disability.
This medical crisis has brought emergency legislation aimed to protect employees’ rights in light of the new conditions. Existing laws that protect those who had been sick, however, remain in place. Disability laws under the Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA) continue to be in effect.

These laws prohibit discrimination against a person with a disability. Disability is defined as a physical or mental impairment that substantially limits one or more major life activity. The anti-discrimination laws protect persons who have a record of such a disability, even if they do not currently have a disability. Individuals who do not have a disability but are regarded as having a disability are also protected.

The ADA also makes it unlawful to discriminate against a person based on that person’s association with a person with a disability. The FEHA defines disability to include actual or perceived physical or mental disability or medical condition that is disabling, potentially disabling or perceived to be disabling (“perceived disability”) or potentially disabling (“perceived potential disability”). The ADA applies to workplaces with 15 or more employees, while FEHA provides a threshold of 5 or more employees.

A “record or history of disability” includes previously having, or being misclassified as having, a record or history of a mental or physical disability of which the employer is aware. For example, an employee may have had a history of virus transmission. If, however, they are now healthy and able to work, that employee is protected from discrimination.

A “perceived disability” means being “regarded” or “treated” as having a disability.

Perceived disability includes being treated by the employer as having, or having had, any mental or physical condition or adverse genetic information that makes achievement of a major life activity difficult; or being subjected to an adverse employment action (such as being fired or demoted) whether or not the perceived condition limits, or is perceived to limit, a major life activity.

A “perceived potential disability” includes being regarded, or treated by the employer as having, or having had, a physical or mental disease, disorder, or condition that has no present disabling effect, but may become a mental or physical disability.

An employer may harbor serious concerns about an asymptomatic employee previously diagnosed with COVID-19. But if the employee is now healthy and able to work without being a threat to their health or those of others, they are equally entitled to disability protection.

Therefore, if the employee has been given a clean bill of health by their doctor, is able to perform the essential functions of the job with or without reasonable accommodation, and has provided the appropriate documentation, the employee should be allowed to return to work. An employer’s refusal in this instance may constitute disability discrimination, and the termination becomes unlawful.

To Disclose or Not to Disclose (a COVID-19 Positive Employee) – That is the Question

A recent conversation with a family member reminded me that many employers and employees are unaware of the workplace reporting requirements when a colleague tests positive for COVID-19. In this case, the family member almost missed out on a trip because a person her spouse had indirect contact with showed up to work for two days after testing positive for COVID-19. This highlights several important issues: reporting test results, contact tracing, and personal protective equipment standards. Due to its novel nature and the uncertain legal landscape surrounding the ongoing pandemic, many employers are unaware of their reporting obligations or how to otherwise handle an employee’s positive test.

In early October, the Occupational Safety and Health Administration (OSHA) updated its ongoing guidance regarding the reporting of employees who have been hospitalized or who have died from COVID-19. Employers are now obligated to inform OSHA of any in-patient hospitalization of an employee that occurs within twenty-four hours of workplace exposure to COVID-19. Employers must also report any COVID-19 related employee death that occurs within thirty days of workplace exposure. While these requirements provide for employer transparency and accountability in reporting to OSHA, they do not require disclosure to other employees who may have been exposed.

During the pandemic, employers must navigate the murky waters at the intersection of workplace safety and employee privacy. With the exceptions of disability and genetic information and information obtained through a Family Medical Leave Act (FMLA) request, there is no general confidentiality law for employee medical information in Pennsylvania. However, employee medical information is protected under the federal Americans with Disabilities Act (ADA), so employers must tread carefully if they disclose their employees’ personal health issues to coworkers. In addition to some expectation of privacy, employees have the right to a safe workplace, including the right to be free from exposure to coworkers infected with COVID-19 and to know if such an exposure may have occurred in order to protect themselves and any vulnerable friends or family members. This privacy interest must be balanced with the need to protect employees from harm–and protecting the employer from liability.

Generally, employers should take a few precautionary steps to be prepared if and when an employee tests positive. In addition to reviewing HR Legalist’s prior guidance, including Returning to Work after COVID-19 Lockdowns: Mitigating and Managing, employers need to effectively address COVID-19 positive employees.  First, employers should track who is present at the workplace each day in order to facilitate contact tracing. This process can narrow the number of exposed employees who need to be notified in the event of a positive test. Second, employers should take reasonable steps to limit exposure in common areas, such as requiring face covers and supplying hand sanitizer. If despite these efforts an employee tests positive, the employer should notify any other employee who came into contact with the diagnosed employee without identifying the diagnosed employee. The employer should then take reasonable steps to prevent an outbreak by cleaning and disinfecting areas where the infected employee has been.

These are just a few simple and reasonable steps that employers can take to reduce exposure to liability and negative impact on business operations. Lawsuits are just starting to hit the courts over COVID-19 related litigation and it has yet to be seen how courts or juries will rule in these cases. OSHA’s guidance makes it clear that a liability waiver will not prevent liability under OSHA if the employee’s right to a safe workplace is violated. One of the first test cases for COVID-19 related workplace safety in Pennsylvania is currently being litigated in the Eastern District of Pennsylvania and could lay the groundwork for future pandemic related cases in Benjamin v. JBS S.A. As the case law develops, the framework will be established for employer responsibilities during pandemics and national emergencies. For the time being, reasonable preventative measures based on the most recent CDC and local health department guidance, and thoughtful consideration of employee safety, are important steps for responsible public health and avoiding liability. 

What is Disney’s policy on Emotional Support Animals?

One of the reasons Orlando’s theme parks are so highly regarded is their commitment to accessibility. Guests of all needs are welcome. Walt Disney World has a reputation for its excellent accessibility, but if you’re not very familiar with the Americans with Disabilities Act there can be some ambiguity about Disney’s policy on emotional support animals.

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