AbleData Discontinuation
Due to a realignment of National Institute on Disability, Independent Living, and Rehabilitation Research (NIDILRR) priorities, AbleData will be discontinued on September 27th, 2020. Until then, the call center will continue to be open during normal business hours and the website will continue to be available. We will post updated information on the AbleData website as it becomes available.
Settlement: New London train station must be ADA-compliant
Connecticut Department of Transportation reached a settlement with the U.S. Attorney’s Office to resolve allegations that the New London Rail Station is not accessible to individuals with mobility disabilities.
John H. Durham, U.S. attorney for Connecticut, announced the settlement on Monday.
As part of the settlement agreement, the department must ensure that: there are routes to the station that are compliant Americans with Disabilities Act of 1990; the station has at least one accessible entrance; accessible ramps; accessible doors to the station along the accessible routes; any stairs that are part of a method of egress from the station are accessible; train brochure display areas within the station are accessible; accessible toilet rooms; accessible signage within the station; and accessible routes to the accessible boarding platforms.
EEOC: Don't exclude older or pregnant workers from return-to-work plans
Dive Brief:
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Employers should not prevent pregnant or older workers from returning to work on the basis of those characteristics, the U.S. Equal Employment Opportunity Commission (EEOC) said in a June 11 update to its COVID-19 guidance.
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"Even if motivated by benevolent concern, an employer is not permitted to single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough," the agency said. Likewise, "[t]he ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19." Individuals age 65 and older are generally understood to face a higher risk with COVID-19, although nondiscrimination protections begin at age 40.
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The commission's updates also addressed alternative screening accommodations, best practices for inviting workers to request flexibility and guidance on accommodation requests from pregnant workers or those living with an individual at high-risk for severe illness.
Dive Insight:
The Commission has updated its guidance several times since the novel coronavirus pandemic began. In March, it said employers were free to measure employees' body temperature, though such actions constitute a medical exam.
The following month, approved employer questions about potential COVID-19 symptoms and, given that an infected individual can pose a direct threat to the health of others, on-site tests as a condition of entering the workplace as long as the test is "job related and consistent with business necessity."
Still, EEOC has reminded employers that federal equal employment opportunity laws, including the Americans with Disabilities Act (ADA), are still in force as the nation grapples with the pandemic. Similar to its most recent update, the agency said in May that employers may not exclude employees with disabilities from the workplace or take any other adverse actions against an individual with a disability "solely because" of an impairment, unless the disability "'poses a direct threat'" to health or safety that a reasonable accommodation could not reduce or eliminate.
Remember, even if an employer is acting out of genuine concern for an employee’s safety, disparate treatment on a protected basis is unlawful and must be avoided.
On June 11, 2020, the Equal Employment Opportunity Commission (EEOC) released additional Q&As in “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” clarifying and expanding upon guidance covered in our previous Alert.
As businesses reopen during the COVID-19 pandemic, employers continue to grapple with how to safely return employees to the workforce, particularly those employees with certain underlying conditions identified by the CDC, as well as pregnant employees and those over the age of 65.
Age-Related Accommodations
Covered in the previous EEOC guidance, Q&A G.4 expressly prohibits an employer from excluding an employee from the workplace based solely on the fact that the employee has a disability that the CDC identifies as potentially placing the employee at “higher risk for severe illness” if the employee contracts COVID-19. The recent addition of Q&A H.1 confirms this is also the case for employees over 65 years of age―a group also identified by the CDC as at higher risk for severe illness resulting from COVID-19.
Q&A H.1 provides that the Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older; accordingly, the ADEA makes it illegal for an employer to involuntarily exclude employees 65 years or older on the basis of their age, even if such action comes from a place of genuine concern for the employee’s safety.
Additionally, while the ADEA does not require an employer to provide reasonable accommodations for older workers solely due to age, employers may elect to do so, even if it results in younger workers (40-64 years old) being treated “less favorably” based on age in comparison. As such, concerned employers have the ability to discuss and consider an employee’s accommodation requests made on the basis of the employee’s age. However, the employee must request the accommodation in order to begin the interactive process, as previously stated in Q&A G.4. The employer cannot simply assume the employee needs an accommodation based on the employee’s age any more than it can assume an accommodation is needed based on an employee’s disability.
Pregnancy-Related Accommodations
The addition of Q&As J.1 and J.2 similarly confirm that employers may not exclude a pregnant employee from the workplace, even if motivated by “benevolent” concern for the employee and the unborn child. However, the employee may be entitled to a reasonable accommodation under federal law for pregnancy and related medical conditions.
Although pregnancy itself is not a disability under the ADA, pregnancy-related medical conditions may be disabilities, like severe morning sickness or gestational diabetes, in which case the employee may be entitled to a reasonable accommodation which the employer must consider under “the usual ADA rules.”
In addition, Title VII, as amended by the Pregnancy Discrimination Act, requires that employees affected by pregnancy, childbirth or other related medical conditions be treated the same as others who are “similar in their ability or inability to work.” For employers, this means that the pregnant employee may be entitled to job modifications like telecommuting or modified work hours if similar accommodations are offered for other employees, which enable the employee to perform her essential job duties. Of course, employers must also be mindful of state and local laws, like those in New York, California, New Jersey, Illinois, Connecticut, Maryland, Philadelphia and many other jurisdictions, which affirmatively require them to accommodate pregnant employees outright.
Requests for Accommodation Generally – Whose Responsibility to Initiate?
As previously reported, Q&As G.3 and G.4 confirmed that under the ADA, an employer is not required to take any action with respect to accommodating an employee if that employee does not request a reasonable accommodation. The guidance further confirmed that it is the employee’s responsibility to initiate the interactive process either by way of a written or verbal request from the employee or authorized third party.
Notwithstanding the foregoing, Q&A G.6 states that the ADA and the Rehabilitation Act permit employers to make information available in advance to all employees about who to contact if they want to request an accommodation for a disability before returning to the workplace. As a “best practice,” the EEOC advises that this can be done in one of two ways.
First, an employer may send a general notice out to all employees about who to contact if they need to request an accommodation prior to returning to work―even if the employer has yet to announce a date of return. The employer may also choose to include all CDC-listed medical conditions that may place people at higher risk of serious illness, including people ages 65 or older.
Alternatively, if an employer is reopening in phases, an employer may send out a general notice to those employees who are designated to return in each phase specifying who they should contact if they require an accommodation. In either case, the employer should specify that it will consider requests for accommodation on an individualized basis. It is also vital that employers ensure that each request is handled consistently and in a nondiscriminatory manner based on state and federal laws.
Employers should note that despite the general rule that it is the employee’s responsibility to initiate the accommodation process, cases under the ADA, and certain state laws, require an employer to make a reasonable accommodation where needed if the disability is known, even if the employee does not make an accommodation request.
Requests to Accommodate Family Members
Notably, Q&A D.13 states that accommodations are limited to the employee and his or her disability, and not on the basis of family or household members who may be at higher risk of severe illness from COVID-19 as a result of a disability or other CDC-identified condition.
While the ADA prohibits discrimination on the basis of associating with someone with a disability, the law does not require an employer to accommodate an employee on the basis that the employee’s family member or other close contact has disability-related needs. An employer is free to consider these factors if they so choose in the provision of an accommodation, but the EEOC warns an employer should proceed with caution and avoid engaging in “disparate treatment” on some other protected EEO basis (e.g., declining to recall an employee because they have a disabled family member).
Accommodation of Employees with Childcare Responsibilities
Similarly, for modified work requests resulting from child care responsibilities, employers may (but are not required to) accommodate such flexibilities so long as they are not treating employees differently on the basis of sex or other EEO-protected characteristic; for example, by allowing female employees to work from home due to child care responsibilities but denying the same request by male employees.
What This Means for Employers
While it is important to protect your employees, employers must be cautious and avoid the aforementioned pitfalls, which can lead to ADA or other EEO discrimination claims. Employers should be thoughtful in their approach to returning employees to the workplace and be sure to apply their policies consistently and fairly across the workforce at every step of the interactive process. Remember, even if an employer is acting out of genuine concern for an employee’s safety, disparate treatment on a protected basis is unlawful and must be avoided.
Blog: Deaf Employee Sues Walmart For Alleged ADA Violation
The complainant was hired in April 2013 to do maintenance work in the store. Because of his disability, the complainant communicated with other employees by hand writing messages or typing them out on his phone. During the first month on the job, the complainant was accompanied by an aide from the state Bureau of Rehabilitation Services. However, after the aide left, the complainant was told Walmart had changed its policy and he was no longer allowed to use his phone to communicate, according to the initial lawsuit.
Shortly afterward, the complainant said that the store manager started complaining that the complainant’s sneakers were making “too much noise,” according to court record. After that, he said, he was told to stay in certain areas of the store. The complainant attempted to solve the noisy sneaker problem by trying four different pairs and by asking his family members if they made too much noise. They all said no, but his managers disagreed.
Sometime in August or September of 2013, Walmart’s managers started making announcements over the loudspeakers which caused customers to immediately walk away from the complainant, according to the complaint. The complainant approached his managers in attempt to rectify the situation, though nothing came of the conversations.
Rather than put up with the mocking and the complaints by supervisors and coworkers, the complainant resigned in January 2014 and filed a federal lawsuit in December 2014. Wal-Mart filed a motion to dismiss; the federal court denied part of it and granted part of it. A U.S. District Judge recently upheld the complainant’s claim under the American with Disabilities Act claim. The complainant had alleged that he was subject to a “constructive discharge,” meaning he was caused to quit due to a hostile work environment. The court stated that a reasonable person would be able to deduce from the way the complainant was treated that he “was not wanted as an employee and that he was going to be forced out,” of his job and that his workplace was “permeated with discriminatory intimidation, ridicule, and insult that [was] sufficiently severe or pervasive.” However, the judge dismissed the complainant’s claim alleging violations of the Connecticut Fair Employment Practices Act, with the judge ruling that the plaintiff did not show that he exhausted all administrative remedies possible with the Commission on Human Rights and Opportunities.[1]
This case was not handled by our firm. However, if you have any questions regarding this case, or any employment matter, please contact Joseph Maya at 203-221-3100 or by email at .
[1] Source: CT Law Tribune
https://www.mayalaw.com/2020/01/14/deaf-employee-sues-walmart-for-alleged-ada-violation-2/
Blog: The U.S. EEOC And Disability Discrimination: An Overview
Disability discrimination occurs when an employer or other entity covered by the Americans with Disabilities Act, as amended, or the Rehabilitation Act, as amended, treats a qualified individual with a disability who is an employee or applicant unfavorably because she has a disability. Learn more about the Act at ADA at 25.
Disability discrimination also occurs when a covered employer or other entity treats an applicant or employee less favorably because she has a history of a disability (such as cancer that is controlled or in remission) or because she is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if she does not have such an impairment).
The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer (“undue hardship”).
The law also protects people from discrimination based on their relationship with a person with a disability (even if they do not themselves have a disability). For example, it is illegal to discriminate against an employee because her husband has a disability.
Note: Federal employees and applicants are covered by the Rehabilitation Act of 1973, instead of the Americans with Disabilities Act. The protections are mostly the same.
Disability Discrimination & Work Situations:
The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
Disability Discrimination & Harassment:
It is illegal to harass an applicant or employee because he has a disability, had a disability in the past, or is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).
Harassment can include, for example, offensive remarks about a person’s disability. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Disability Discrimination & Reasonable Accommodation:
The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer.
A reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.
Reasonable accommodation might include, for example, making the workplace accessible for wheelchair users or providing a reader or interpreter for someone who is blind or hearing impaired.
While the federal anti-discrimination laws don’t require an employer to accommodate an employee who must care for a disabled family member, the Family and Medical Leave Act (FMLA) may require an employer to take such steps. The Department of Labor enforces the FMLA. For more information, call: 1-866-487-9243.
Disability Discrimination & Reasonable Accommodation & Undue Hardship:
An employer doesn’t have to provide an accommodation if doing so would cause undue hardship to the employer.
Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost. An employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide.
Definition Of Disability:
Not everyone with a medical condition is protected by the law. In order to be protected, a person must be qualified for the job and have a disability as defined by the law.
A person can show that he or she has a disability in one of three ways:
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A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning).
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A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).
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A person may be disabled if he is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).
Disability & Medical Exams During Employment Application & Interview Stage:
The law places strict limits on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability.
For example, an employer may not ask a job applicant to answer medical questions or take a medical exam before extending a job offer. An employer also may not ask job applicants if they have a disability (or about the nature of an obvious disability). An employer may ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation.
Disability & Medical Exams After A Job Offer For Employment:
After a job is offered to an applicant, the law allows an employer to condition the job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the questions or take the exam.
Disability & Medical Exams For Persons Who Have Started Working As Employees:
Once a person is hired and has started work, an employer generally can only ask medical questions or require a medical exam if the employer needs medical documentation to support an employee’s request for an accommodation or if the employer believes that an employee is not able to perform a job successfully or safely because of a medical condition.
The law also requires that employers keep all medical records and information confidential and in separate medical files.
If you have questions about any employment matter, please contact Joseph Maya at 203-221-3100 or by email at JMaya@mayalaw.com.
Source: U.S. Equal Employment Opportunity Commission, Types of Discrimination: Disability Discrimination (2016) available at https://www.eeoc.gov/laws/types/disability.cfm
https://www.mayalaw.com/2019/06/18/the-u-s-eeoc-and-disability-discrimination-an-overview/
What Is The Difference Between A Service Dog, Therapy Pet, and Emotional Support Animal?
Walk around an airport, visit a hospital, or even dine at a restaurant and you’ll find service animals in action. But what services do they provide?
There are three levels of working animals: service dogs, therapy dogs, and emotional support animals, explains Linda Keehn, a certified dog behavior consultant, certified professional dog trainer, therapy dog evaluator, and owner of Positive Canine Training, LLC in Lindenhurst.