ADA in the News September 14, 2020

EEOC: Non-profit refused to hire former employee due to prior workplace injury

Dive Brief:

  • Aspire Health Partners allegedly violated the Americans with Disabilities Act (ADA) by refusing to rehire a long-time former employee based on a previous workplace injury, the U.S. Equal Employment Opportunity Commission (EEOC) said in a recently filed lawsuit.
  • Aspire terminated the worker’s employment when she exhausted her available medical leave but had not yet recovered, EEOC said. When she was medically cleared for work, she applied for a position in the same program that she had developed and supervised. Just hours before her interview, she was notified that she was not eligible for rehire at the Florida-based behavioral healthcare non-profit because of her workers’ compensation file.
  • The federal agency said it is seeking back pay and compensatory and punitive damages as well as injunctive relief to prevent and correct disability discrimination. It also requested training for Aspire’s HR staff on federal equal employment opportunity laws.

Dive Insight:

EEOC has been cracking down on companies that maintain 100% healed policies and the federal agency also identified inflexible leave as an enforcement priority in recent years. Employers violate the ADA if they require employees to be "100% healed" or recovered before returning to work unless the employer can prove that the accommodations needed by the worker would cause undue hardship, the EEOC says.

Past settlements with the federal enforcement agency over the issue include a payment of $950,000 by a company that provides healthcare to jails and prisons; it settled a claim alleging it refused to accommodate workers with disabilities who had exhausted their leave under the company’s policy and the Family and Medical Leave Act. EEOC also alleged in that case that the company fired workers if they were unable to return to work without medical restrictions at the end of their leave or were not 100% healed, while failing to discuss accommodations like reassignment, unpaid leave or a modified work schedule. In another settlement, Blood Bank of Hawaii agreed to pay $175,000 to settle an EEOC disability discrimination lawsuit alleging the non-profit blood collection company required employees to return to work without limitations at the end of the 12 weeks allowed under the FMLA and that it fired workers who had exhausted their leave or who needed a reasonable accommodation to return to work.

The EEOC has said that employers must consider additional leave as a reasonable accommodation for workers with disabilities even if the worker has exhausted their leave, including leave available under the FMLA, workers' comp or equivalent leave under local or state law. The agency has made clear, however, that employers are not required to provide additional paid leave beyond what is already provided as part of a paid leave policy.

Dog-at-work suit heads to trial

Later this month, a federal jury will be asked to decide if a Benton man is entitled to take his dog to work with him.

Banks are stepping up tech for people with disabilities

Visitors who enter the JPMorgan Chase branch near Gallaudet University in Washington, D.C., a school for the deaf and hard of hearing, will be greeted in two ways simultaneously: spoken English and American Sign Language.

This 10-month-old branch is Chase’s first that is designed to serve the deaf and hard of hearing community. Customers and employees with hearing loss can communicate with others by signing to an interpreter over video and hold subdued conversations with the help of a device that connects to the customer’s hearing aids.

Chase is one bank using technology to try to serve customers with varied disabilities seamlessly. Regions Financial in Birmingham, Ala., adapted programming for autistic customers online; U.S. Bancorp. in Minneapolis considers accessibility from the beginning when designing and testing its digital tools.

For Digital Agencies, ADA Compliance Lawsuits Are a Real Threat—Here’s Why

The Americans with Disabilities Act, also known as the ADA, has been around since 1990. However, it’s only in recent years that digital agencies are learning just how important it is to have a thorough understanding of all the requirements. The financial and reputational risks of non-compliance are huge. It is detrimental for a company to ignore this law.

The ADA is a civil rights law that was passed to protect the rights of disabled Americans. It ensures that people with disabilities have equal access to the products and services offered by a company. This law gave us things like handicapped parking spots and wheelchair ramps, but it also applies to web access.

As commerce continues to move further and further into the online realm, ensuring total compliance with the ADA is easier said than done. Digital agencies must quickly build websites to keep up with online demand. Ensuring total accessibility for those with disabilities, while building those websites is a slow process.

In 2018, 2,285 ADA website lawsuits were filed in the United States. This number was 181% higher than the number filed in 2017. In 2019, the number of lawsuits set an all-time record with over 11,000 cases filed.

For agencies with clients based in California, Florida, or New York, the need for vigilance in protecting against lawsuits is especially high. Eighty-four percent of all ADA lawsuits are filed in these three states. These cases continue to grow each year, and businesses must take care in protect themselves and their clients against this threat.

Post-COVID-19 world needs more inclusive designs for persons with disabilities

Though a 100% inclusion is rarely possible, it shouldn’t deter architects or designers to strive for the ultimate through iterations of their design

Mailbag: An employee is afraid to return to work. What do we do?

Q: An employee is afraid to return to work. What do we do?

A: "The first thing to do basically is have a meeting with the employee," according to John Martin, shareholder at Ogletree Deakins. "And it doesn’t have to be something formal," he continued; talk with the employee and uncover the real concern.

The answer may be as simple as going over the procedures that are presumably in place, such as face covering requirements, social distancing measures and other measures recommended by the Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control and Prevention, he said.

Ashley Cuttino, also a shareholder at Ogletree Deakins, agreed: Overcommunicate the steps the employer has taken to make the workplace safe, she recommended, "especially if you have a workforce that has been at home." Employees at home haven’t seen how hard an employer has been working to make an environment safe, she said; "You cannot overcommunicate on this issue."

And when someone raises a concern, "really listen to what they have to say," she said; they may have a better idea because they’re the ones actually on the floor.

If an employee still refuses to return, there are a few things for HR practitioners to consider. Among them are three major employment laws: The Occupational Safety and Health Act, the Americans with Disabilities Act (ADA) and the National Labor Relations Act (NLRA).

Federal considerations

It’s worth noting that employees have a right to complain to OSHA about situations involving "imminent danger," Martin said, but "COVID-19 is not something OSHA is treating as an imminent danger situation," even in healthcare and retail. From an OSHA perspective, if the employee refuses to work and there is no "imminent danger," "the courts have made it clear that those employees don’t have to be paid," he said. The law does, however, provide job protection for an employee’s refusal to work if certain criteria are met, according to the agency.

And while a fear of contracting COVID-19 alone will not trigger ADA protections, the law may require an accommodation for an individual with a disability. In that case, employers should go through the interactive process as they normally would, Cuttino recommended, considering whether any adjustments would allow the employee to perform the essential functions of their job. And, she said, "one accommodation certainly could be extended unpaid leave."

Employers may want to note that the NLRA protects employees’ efforts to work together to improve working conditions. This could include a complaint regarding the safety of the entire workforce, Cuttino said.

What happens next?

One common client question, Cuttino said, is whether an employee is eligible for unemployment if he or she ultimately decides not to return to work because of a fear of contracting COVID-19.

"The answer to that is that it somewhat depends on the state," she said. "It will … be up to the state agency to determine whether [the refusal to work] was justified under the state’s criteria," Cuttino said, and "some states … are being more restrictive than others."

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