Settlement Agreement: Tufts Medical Center
Tufts Medical Center has committed to a number of renovations at many of its 16 buildings owned or leased by the hospital in an effort to resolve allegations that they weren’t accessible to people with disabilities.
According to a settlement signed with the U.S. Department of Justice, Tufts will improve hospital policies and procedures to ensure effective communication with patients who are deaf or hard of hearing, remove barriers at public and common use areas, provide more accessible patient rooms in every medical department, add more medical equipment to ensure patients with disabilities have access to medical services, and hire a compliance officer and communication coordinator to ensure access needs are being met.
“This case is a reminder that we still need the basic protections provided by the ADA,” said U.S. Attorney Andrew Lelling, in a statement. “This is especially true for the deaf and hard-of-hearing, who often receive too little support when trying to navigate the healthcare system. I commend Tufts for working with us to improve services for patients with disabilities, and we hope this agreement encourages other healthcare providers to review their ADA compliance.”
The settlement resolves issues based on a compliance review. During the three-year term of the agreement, the department said it would refrain from undertaking further investigations into or filing a civil lawsuit on the compliance issues.
“No one with a disability should face unlawful barriers to accessing health care facilities or receiving medical treatment,” Assistant Attorney General Eric Dreiband, the head of the Justice Department's civil rights division, said in a release. “This agreement reflects the Department’s continued commitment to enforcing the Americans with Disabilities Act to ensure equal access for individuals with disabilities to medical care, and we appreciate Tufts’ full cooperation with the Department throughout the investigation.”
A Tufts Medical spokesman said the hospital had renovated many areas of its hospital to be compliant with the Americans with Disabilities Act, but many areas that pre-dated the law were not. Congress passed the law in 1990.
“For more than two centuries, Tufts Medical Center has taken great pride in caring for a diverse community of patients and families with a wide variety of medical needs,” a spokesman said. “We agree there is more we must do to meet the current strict code standards and make our facilities accessible to all.”
Complaint: Mark Bissoon, Caroline County Commissioner of the Revenue
the Justice Blog: Celebrating 30 Years of the ADA
Federal ADA Title III lawsuits hit all-time high
The year 2019 was another record-breaking year for Federal ADA Title III lawsuits.
Plaintiffs filed at least 11,053 ADA Title III lawsuits in federal court in 2019 — 890 (or 8.8%) more than in 2018. This is the highest number since we started tracking these lawsuits in 2013, when there were only 2,722 such lawsuits.
These numbers include Title III lawsuits filed on all grounds — physical facilities, websites and mobile applications, service animals, sign language interpreters and more. The numbers do not include the significant number of disability access lawsuits filed in state courts which are much more difficult to accurately track.
California, New York, and Florida continued to lead the country with the highest number of lawsuits by a long shot, with 4,794, 2,635, and 1,885 lawsuits, respectively. These three states saw 84% of all the ADA Title III lawsuits nationwide, with California and New York each breaking their own records for the number of ADA Title III lawsuits.
Georgia, Texas, Pennsylvania, Illinois, New Jersey, Colorado, and Alabama also made the top ten but trailed very far behind with Georgia leading the second pack with 243 lawsuits. Arizona fell out of the top ten with a dramatic decrease in lawsuit numbers (94 in 2018 to 13 in 2019), replaced by Illinois which had 190 lawsuits in 2019 — a 171% increase over 2018.
Businesses in North Dakota, South Dakota, and Vermont continued to be ADA Title III lawsuit-free for the third consecutive year (2017-2019).
For the lawsuit trends in 2019 that drove these numbers, see our year-end roundup post.
ADA Allows Employers to Offer ‘Last Chance' to Employees After Alcohol or Drug Violations
As an alternative to termination, employers faced with employee drug or alcohol policy violations sometimes want to give that person a second chance. Typically, this process involves a commitment by the employee to seek treatment or counseling for substance abuse, as well as a promise not to engage in further abuse, often backed up by random testing.
For employees whose substance abuse is tied to alcoholism or those in recovery from illegal drug use, the Americans with Disabilities Act extends protections against discrimination in addition to accommodation obligations. In some cases, employees have contended that the ADA does not permit employers to impose special conditions on them such as a “last chance” agreement that contains terms and conditions of employment not required of other employees.
Both federal courts and the EEOC have rejected these claims, finding that reasonable last chance agreements are consistent with employees' rights under the ADA. Even though alcoholism and recovering drug addiction are ADA disabilities, the agreements are imposed as a result of employee misconduct, and not due to the disability. The employee always has the choice not to sign the agreement, knowing that the consequence is disciplinary action that is the same as that applied to any employee who violates the drug and alcohol policy.
Employers using last chance agreements should understand that they do not substitute for the obligation under the ADA to provide reasonable accommodations. If the employer extends a second chance, it should be prepared to respond to requests for time off to attend rehabilitation, 12-step programs, or the like.
Illinois Limousine Service to Pay $30K to Settle EEOC Disability Lawsuit
M&M Limousine Service in Des Plaines, Ill., will pay a deaf job applicant $30,000 to settle a federal disability discrimination lawsuit.
The lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) charged M&M Limousine with violating federal discrimination law when it refused to hire the applicant based on his disability and failed to consider whether he could do the job, with or without reasonable accommodation.
Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination based on disability and requires an individualized assessment of whether an applicant with a disability can perform the job with or without reasonable accommodation. The EEOC filed its suit (Civil Action No. 1:19-CV-04213) in U.S. District Court for the Northern District of Illinois after first attempting to reach a pre-litigation settlement through its conciliation process.
M&M will pay $30,000 in monetary relief to the discrimination victim as part of a three-year consent decree settling the suit.
The decree also provides non-monetary relief intended to prevent disability discrimination in M&M’s workplace. M&M must train managers and supervisors on disability discrimination and requests for reasonable accommodations under the ADA. The company must track accommodation requests and complaints of disability discrimination and report them to the EEOC.
ADA compliance tips for e-commerce businesses
The American with Disabilities Act (ADA) was initially conceived to ensure compliance from physical locations and services. It was signed and passed in 1990, several years before the internet entered the mainstream. The Department of Justice has yet to post specific guidelines; thus, ADA compliance for e-commerce businesses can prove tricky.
There have been several lawsuits related to brick-and-mortar businesses that do not provide online compliance with the ADA. These businesses include hotels and universities, and they find themselves at the mercy of the courts. In many cases, the judges rule in favor of the plaintiffs. This is why Netflix added subtitles to all of its content and universities have to test their work for screen readers.
Even if your business is purely e-commerce, it’s best to comply with the ADA to avoid facing a plaintiff in court. You may get the case tossed out with frivolous complaints, but the time and money involved would make the experience unpleasant for everyone. So, find out what steps you can take proactively.
5th Circuit: Staying awake is an essential job function – even for disabled employees
Employers are required to reasonably accommodate disabled workers.
But what happens when that disabled worker can’t do their job?
Couldn’t perform essential duty
Charles Clark, a diabetic, was a personnel manager at Champion National Security.
He was caught sleeping on the job and was fired for violating the company’s alertness policy.
Clark sued his employer for violating the ADA. He said Champion National Security knew about his condition and was aware he went to the hospital for treatment after he fell asleep on the job. The company should’ve accommodated him, Clark said, and given him leeway with the alertness policy.
But the 5th Circuit sided with the company. It ruled that staying awake at work was an essential job function for Clark. Since he couldn’t stay awake, Clark wasn’t qualified to do his job.
Employers only have to accommodate qualified individuals under the ADA, the court said. Since Clark’s disability prevented him from performing his job properly, he wasn’t entitled to ADA protections.
Cite: Clark v. National Champion Security, Inc., 1/14/20.
Lawsuits Filed Claim Disney Violates ADA by Making Disabled Guests “Wait Too Long” at the Parks
Lawsuits are moving forward in Florida and California that allege the Walt Disney Company is violating the Americans with Disabilities Act with how those with disabilities access the attractions at Disneyland and Walt Disney World, according to KTLA.
Coronavirus Continues to Spread: What Employers Should Be Doing
In our recent blog post, we discussed the effects that the coronavirus has on the workforce, and what employers should, or should not do in response to a virus outbreak. In light of the coronavirus’s continued impact on the workforce, this post reviews the CDC’s newly issued guidelines for businesses, and dives deeper into how employers can lawfully navigate the Americans with Disabilities Act (ADA), sick time laws, and other leave laws, while keeping maintaining the safety of their workforce.
Coronavirus is continually dominating news cycles and has been spreading rapidly throughout Europe and the Middle East. As of the date of this post, there are 400 confirmed cases in Italy and 12 deaths. In the Middle East, Iran has reported 245 cases with 26 confirmed deaths. So far, there are 15 confirmed cases in the United States as of the date of this post, but statistics are adjusted daily. Notably, the 15th case is the first in the United States of unknown origin, meaning the infected individual had not have relevant travel history or exposure to another known patient.[1] The mayor of San Francisco declared a local state of emergency in the city this week, but stresses that the coronavirus has not been spreading there. The decision to declare a state of emergency allows the city to be reimbursed by state and federal governments for any money it spends on preparedness for an outbreak. At this time, the CDC still maintains that the risk to the American public remains low at this time.
Court Ruling in Yale Hospital's Late Career Practitioner Policy May Have Far-Reaching Impact
- Yale New Haven Hospital's Late Career Practitioner Policy requires medical practitioners age 70 or older to take additional exams to maintain or renew staff privileges.
- EEOC filed suit against the Yale hospital alleging violations of the ADA and ADEA based on the policy.
- The court's decision in this case will likely impact other medical institutions nationwide with similar protocols.
On Feb. 11, 2020, the Equal Employment Opportunity Commission (EEOC) filed suit against Yale New Haven Hospital Inc., the teaching hospital of the Yale School of Medicine, alleging violations of the Americans with Disabilities Act (ADA) (42 U.S.C. § 12101, et seq.) and the Age Discrimination in Employment Act (ADEA) (29 U.S.C. § 621 et seq.).
The lawsuit1 alleges that Yale New Haven Hospital's 4-year-old Late Career Practitioner Policy discriminates against medical practitioners age 70 or older by requiring them to "take both an ophthalmologic and a neuropsychological medical examination"2 before staff privileges are renewed or maintained. The complaint claims that the policy has been applied to 145 individuals as of April 2019, all of whom are 70 or older, and at least seven were listed as "failed."3Medical practitioners younger than 70 are not required to submit to the eye and neuropsychological exams.
In its complaint, the EEOC asserts that Yale New Haven Hospital's policy violates the ADEA by singling out employees because of their age, and unlawfully discriminates against and deprives doctors 70 or older of equal employment opportunities.4 In particular, the EEOC alleges the policy violates the portion of the ADA stating that "an employer shall not require a medical examination and shall not make inquiries as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity."5
The EEOC seeks relief that includes, among other things, a permanent injunction preventing Yale New Haven Hospital from carrying out the policy or other policies that "discriminate on the basis of age, "as well as back wages and liquidated damages to those negatively affected by the Policy."6
As of the date of this article, Yale New Haven Hospital had not yet filed an appearance or a response to the EEOC's Complaint. The Court's ruling on this suit may have ramifications for other hospitals around the country with similar policies.
Accessibility Lawsuits in Texas on the Rise
There has been a significant increase over the past few years in Americans with Disabilities Act (ADA) accessibility lawsuits, agency enforcement actions…