Statement of Interest: SJ v. Tidball
Starbucks’s Counter Displays Do Not Breach ADA Rights of Persons in Wheelchairs
The Ninth U.S. Circuit Court of Appeals, in three separate cases each relating to a different coffeehouse location in California including one in Culver City, has rejected the contention that Starbucks does not supply sufficient counter space that’s accessible to persons in wheelchairs because portions of the surfaces are taken up by advertising displays.
Department of Justice regulations adopted pursuant to the Americans with Disabilities Act of 1990 (“ADA”) were not breached, each of the opinions declares, because the specific requirement the plaintiffs seek to impose does not exist.
Summary judgment for the Seattle-based multinational coffeehouse operator was affirmed in memorandum opinions Wednesday in Lindsay v. Starbucks Corporation, 19-55738, Kong v. Starbucks Corporation, 19-55577, and Johnson v. Starbucks Corporation, 19-15759. Each of the plaintiffs was represented by the Center for Disability Access, a division of a San Diego law firm specializing in such actions.
Twitter Just Rolled Out a Feature That’s Inaccessible to Disabled Users
The company’s blunder is symptomatic of broader issues that pervade social media design and computer science education.
Trucker’s Americans with Disabilities Act claim survives Third Circuit
A Pennsylvania trucker who alleges he was illegally fired under the Americans with Disabilities Act will get his day in court after a federal appeals court reversed the trial court’s decision to dismiss the case.
On May 29, the Third Circuit Court of Appeals reversed a Pennsylvania district court’s decision in favor of Elkhart, Ind.-based Patrick Industries’ motion for summary judgment. William Eshleman, a trucker for Patrick Industries, had sued the company for violating the Americans with Disabilities Act. He claims the violations stem from taking two months of medical leave for a lung biopsy procedure. Eshleman also took two vacation days for an upper respiratory infection.
Eshleman began trucking for Patrick Industries in July 2013. He took medical leave between October 2015 and December 2015 to undergo surgery to remove a nodule from his left lung, according to the first amended complaint. The removal was to test for cancer.
After two months of medical leave, Eshleman returned to work. Six weeks later, he suffered a severe respiratory infection that lasted several days. His supervisor approved two vacation days to recover. However, on this second day of his return, Patrick Industries fired Eshleman.
Employers' Mental Health Initiatives May Carry ADA Risk
A global pandemic and nationwide civil unrest over police violence have employers increasingly eyeing ways to augment the mental health and wellness services available to their employees. But those well-intentioned efforts could land businesses on the wrong side of the Americans with Disabilities Act.
Over the past few months, a cascading series of events starting with the COVID-19 pandemic that forced many workers to start working remotely and a series of nationwide protests sparked by the killing in Minnesota of George Floyd have set the stage for many people to feel anxious and on edge.
While there was already a growing focus by employers on mental health issues over the past few years, the COVID-19 pandemic has exacerbated the issues people face because more people are alone and socially isolated, prompting employers to do more, according to Maria Greco Danaher, a Pittsburgh-based shareholder at Ogletree Deakins Nash Smoak & Stewart PC.
"Even before this COVID situation, the spotlight was moving toward mental health issues," Danaher said. "Over the last year-plus, there's been an increased focus on mental health issues ... We're in a stressful work environment, and the realization has become more clear that we need some way to mindfully deal with this stress and mend some of those difficulties that have affected people's contentment with their job."
Easing the Mental Load
Employers are already paying some attention to workplace mental health, and it will only increase as the year goes on, said Michelle Barrett Falconer, co-leader of Littler Mendelson PC's leaves of absence and disability accommodation practice group.
She said that workplace mental health issues generally fall into two buckets: General stress or apprehension that workers, such as those who were suddenly thrust into teleworking, are experiencing as they adjust to new routines that blur their home and work lives, and people who may already have a mental health condition that has been exacerbated in recent months.
Employers were quick to recognize the first of those circumstances when the pandemic hit, she added, noting that they sought and found creative ways to help blunt those stresses.
For example, some businesses that had child care benefits for workers adjusted those benefits, even though children have been home from school, to help working parents by setting up web-based craft projects for kids that can keep them occupied for a while.
Other things employers are doing, according to Danaher, include simple actions such as making wellness apps available or adjusting policies to allow workers more flex time throughout the day if they're teleworking.
While everyday stress generators aren't things "typically covered" under the ADA, Falconer said it's not impossible that they could form the basis of an ADA claim if a "special set of circumstances" arises and a doctor is able to say that a person has developed a condition because of the pandemic.
"We may see some of that," Falconer said. "It may absolutely come out during this pandemic that we start to see doctor's notes that says, 'Due to the current situation, [a person] has developed anxiety and she needs an accommodation for that.'"
Employee Assistance Programs
But beyond simple steps to help workers navigate their way through the day, some employers are choosing to take a more formal approach to mental wellness by implementing or beefing up so-called employee assistance programs, which make counseling available for any worker.
Debbie Kaminer, a professor of law at Baruch College's Zicklin School of Business who specializes in employment law and religion in the workplace, said that employees are protected under the ADA if they are disabled, which is defined as either having a physical or mental impairment that substantially limits a major life activity or being regarded by their employer as having such an impairment.
Kaminer pointed out that there is a "potential risk" if employers refer workers to an employee assistance program and "make the kind of comments or [use] language [like], 'You seem so severely anxious' or 'so severely depressed that I think it'd be impossible for you to hold down any job now,'" in which employees "could be viewed as disabled by the employer, which means they would have standing under the ADA."
Separately, if an employee approaches an employer seeking an accommodation for, say, clinical depression, or another disability that falls under the umbrella of the ADA, it triggers employers' legal obligation under the statute to engage in the so-called interactive process. That's when workers and their employer discuss any reasonable accommodations that are needed for a worker to be able to do their job.
When it comes to mental health issues in particular, Danaher said, "What's happening now is it's a constellation of events where this issue can't be ignored whereas before it was something people didn't really want to talk about [because] it seemed too personal."
"When somebody would talk about being depressed ... the employers would say, 'Well, that's not any of my business,'" she said. "And now they're realizing that yes it is, and working at home [has] not only has conflated our home lives and our work lives, but it's highlighting some of the issues that overlap between work and home — and mental health is one of them."
Tricky Situations
But where things could get especially tough for employers isn't when an employee approaches them seeking an accommodation, but rather when they only hint at the existence of a mental health issue.
One scenario that employers may encounter, particularly as stresses from the pandemic and social unrest mount, is workers who ask for a day off by citing depression, anxiety or a feeling of being overwhelmed, according to Danaher, who said this situation leaves employers with a dilemma.
Employers in that situation need to ask themselves if what the employee is citing is the sort of condition that's covered under the ADA and, if so, whether the employer can accommodate it, Danaher said.
"These are really difficult questions for employers, but the good employers, knowledgeable employers and caring employers are taking the time and effort to go through those steps," Danaher said.
Moreover, some employers may be concerned that if they grant the worker that day off, they are "conceding" that the worker has a disability that brings the ADA into play and leaves them open to legal claims later on, according to Danaher.
"Should [employers] be worried about that? Probably not if what the employee is asking for is something to which they are entitled," like a paid day off they have accrued, she said.
Falconer, for one, said if a worker makes a one-off request for a mental health day, it likely won't be enough to put an employer on notice that a person is disabled, thus triggering employers' legal obligation to engage in the accommodation process under the ADA or leave law. But if that individual does it regularly, it may be a different story.
"If you change the fact pattern, and the person is calling in day after day with a similar excuse or problem, that might put you on notice that the person may have some type of disability or medical condition for which an accommodation might be warranted or for which a leave of absence might be warranted," Falconer said.
Breaking the Taboo
While numerous employers may increasingly be trying to help workers by making mental wellness services available, the topic still largely flies under the radar at many American businesses.
Falconer, who has multinational clients based in other countries such as the U.K., said her experiences have taught her that companies overseas focus on trying to start conversations with workers about mental health issues much more than their U.S. counterparts, who often fear litigation.
"Because we're so focused on privacy and employers are concerned about, 'Well, if I have knowledge of something, will somebody say I'm discriminating against them?'" Falconer said. "And so it's just a very different approach in the United States, and I think the unfortunate byproduct is that sometimes people feel their mental health issues will stigmatize them as opposed to being able to open up and say, 'I'm struggling with something and I need a resource to be able to help me.'"
But even though employers may harbor concerns about legal risk that goes along with addressing workers' mental health, Danaher said she believes the pandemic has really clarified that there's "a need for those actions" and "a need for that attention."
"Employers that do handle these questions in a productive way, consistently among their workforce, are the employers that are going to keep those people longer and be more trusted when it comes to other issues," she said.
EEOC clarifies that ADA prohibits employers from requiring antibody tests for returning employees
The Equal Employment Opportunity Commission (EEOC) issued new guidance on June 17, 2020, making clear that employers cannot test returning employees for COVID-19 antibodies without running afoul of the Americans with Disabilities Act (ADA). Below we outline this new guidance and provide key takeaways as organizations continue to plot out their employee screening programs to prevent the spread of COVID-19.
EEOC Guidance
The EEOC’s new guidance addresses what type of employee screening tests are permissible under the ADA to prevent the spread of COVID-19 in the workplace. The ADA protects job applicants and employees from disability discrimination by: (1) regulating employers’ disability-related inquiries and medical examinations for all applicants and employees, including those who do not have ADA disabilities; (2) prohibiting covered employers from excluding individuals with disabilities from the workplace for health and safety reasons unless they pose a “direct threat” (i.e., a significant risk of substantial harm even with reasonable accommodation); and (3) requiring reasonable accommodations for individuals with disabilities (absent undue hardship).
The EEOC has said employers may generally test employees for COVID-19 and COVID-19 symptoms without violating the ADA under the “direct threat” exception. The new guidance, however, makes clear that employers cannot test returning employees for COVID-19 antibodies (i.e., indicators that the employee had previously contracted COVID-19 that cannot accurately diagnose a current infection). According to the EEOC, an antibody test constitutes a medical examination under the ADA. Because the Centers for Disease Control stated in its Interim Guidelines that antibody test results “should not be used to make decisions about returning to persons in the workplace,” the EEOC concluded that an antibody test “at this time” does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees.
Takeaways
There are two key takeaways coming out of this new guidance. First, employers should examine their employee screening programs carefully to ensure they are not asking questions conducting medical examinations, or recording data that runs afoul of the ADA. Second, the EEOC is continuing to update their COVID-19 guidance, and it is important for employers to stay abreast of the EEOC’s developments after employee screening programs are initially rolled out. Similarly, employers should continue to align their programs with state and local guidance.
Covid-19 Immunity Tests Are Dangerous Territory for Employers
Employers weighing whether to require Covid-19 antibody tests as part of their return-to-work plans received a powerful warning from the EEOC that the newly developed tests could give rise to a novel form of discrimination—reinforcing the counsel of a growing body of lawyers and civil rights advocates.
The Equal Employment Opportunity Commission advised that at this point antibody tests violate prohibitions on medical testing under the Americans with Disabilities Act, the central federal law preventing discrimination based on disability. The agency aligned its guidance with that of the Centers for Disease Control and Prevention, which said the testing methods can be unreliable, need more research, and shouldn’t be used to decide whether to bring workers back to the workplace.
“Companies want to do whatever they can to create the safest workplace they can envision and as liability-free a workplace they can envision,” said Hope Goldstein, employment attorney with Bryan Cave Leighton Paisner in in New York. “The key with [viral] testing is that it can prevent a direct threat in the workplace. Immunity testing wouldn’t do that. It wouldn’t identify someone bringing harm into the workplace; it would do the opposite of that.”
Conferring privileges on a group of workers because they possess antibodies could lead companies into a legally questionable area and trigger disability bias cases from those who find that their ability to stay virus-free is suddenly a disadvantage at work, several lawyers, academics, and civil rights advocates told Bloomberg Law. Widespread employer use of antibody testing also could create a perverse incentive to contract Covid-19 for those who are economically insecure, as was the case during the U.S. outbreak of yellow fever. And that could disproportionately affect people of color.
Walmart Inc., the nation’s largest employer, previously said it would consider antibody testing as a long-term solution, on top of a diagnostic test for infection. It didn’t immediately respond to a request for comment on the EEOC’s advice.
Many other companies have checked in with lawyers or the EEOC about using the technology as a secondary method to ensure a healthy workplace. Germany, Chile, and the United Kingdom have even suggested creating “immunity passports” that would allow people with antibodies to the virus to go back to work faster.
But relying on immunity testing in the workplace could hurt those with underlying health conditions that put them at greater risk of developing a more severe case of Covid-19, or older workers who are more susceptible to infection, lawyers and civil rights advocates say.
“Imagine the science fiction books you’ve read or movies you’ve seen—those could be reality,” said Michael Sheehan, partner with McDermott Will & Emery in Chicago. “What decisions will be made? Will they categorize people based on the medical data and immunity passports? Will they make hiring and job assignment decisions based on who has the passport? That’s all ripe and fraught with age, disability discrimination. You name it.”
What To Do If Employees Are Unwilling to Return to the Workplace
As states across the country are easing stay-at-home restrictions imposed because of COVID-19 and the economy is beginning to reopen, many businesses are looking to bring their employees back to the workplace. While some employees are enthusiastic about returning to work, employers are finding that others are anxious about returning – or in some cases even are refusing to return to the workplace and/or are asking to continue to telework. There are a variety of understandable reasons for this anxiety, including, for example, employees’ fear about their own health or the health of their family members, or an ongoing lack of child care or the perception that available care may not be safe. Many employers are therefore struggling to understand their legal obligations regarding these employees and to maintain the morale of their workforce, while at the same time keeping their businesses fully staffed and as productive as possible.
On June 11, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its guidance for employers, entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”, to address many of these situations. These Q&As can be found here. Below, we have answered some of the most common legal questions that we are receiving from employers regarding employees who are reluctant or unwilling to return to the workplace.
Workplace Issues And COVID-19-Updated June, 2020 #1
Does the Americans with Disabilities Act (ADA) and Title VII limit an employer’s actions in the current COVID-19 outbreak?
Yes. The ADA regulates employer disability-related inquiries and medical examinations for applicants and employees, prohibits the exclusion of employees from the workplace unless they present a direct threat to the workplace, and requires reasonable accommodation to individuals with disabilities. Title VII prohibits discrimination against individuals based on protected characteristics such as race and national origin.
When is an employee a direct threat to the workplace, allowing employers to adopt expanded measures to protect the health and safety of the workplace?
It depends. To determine whether an employee is a direct threat because of a medical condition, an employer must assess the level of the threat the employee’s medical condition poses to the workplace. An employee‘s medical condition poses a direct threat to the workplace if the severity of the condition presents a substantial risk of significant harm to the health and safety of others in the workplace that cannot be eliminated through a reasonable accommodation based on objective evidence. A direct threat is judged by the severity of the condition and the likelihood of harm. In the context of a severe form of pandemic influenza, the EEOC explains that it is the existence of a direct threat as announced by health authorities that expands employers’ ability to require medical exams, make health-related inquiries and exclude workers from the workplace. The CDC provides a direct threat assessment decision-making chart. The chart was last updated on 2/28/20, and the current spread of the virus appears to require broader considerations not included in the chart.
The severity of COVID-19 is still unknown, so employers will need to assess the threat presented by an employee’s medical condition to determine whether they are a direct threat to the workplace. The EEOC previously has taken the position that the ADA protects employees against actions based on a perceived risk of a future disability or serious illness. In an Eleventh Circuit case, the EEOC argued that an employee who traveled to Ghana during an alleged Ebola outbreak was protected by the ADA because her employer unlawfully perceived her as having the potential to become disabled by the illness. The Eleventh Circuit disagreed stating that the ADA only protects persons with current disabilities or impairments, not “a potential future disability that a healthy person may experience later.” According to the Court’s decision, the ADA does not prohibit employers from taking employment actions based on a “potential future disability that a healthy person may experience later.”
Despite the Eleventh Circuit’s holding, an employer’s task of evaluating an employee’s condition to determine the existence of a direct threat to the workplace can be complex in the context of the current COVID-19 outbreak. In addition to the EEOC’s position on potential future impairments, other federal laws, privacy issues, and state and local laws may limit the inquiries an employer may make to conduct a direct threat assessment. Declared states of emergencies recently announced by certain regions also do not suspend employment laws. As a result, employers should seek the advice of legal counsel to help formulate a direct threat assessment to address the particular circumstances facing the employer.
Employment Tests And Discriminatory Contests
The Equal Employment Opportunity Commission (EEOC), interprets and enforces Title VII’s prohibition of discrimination as forbidding any employment discrimination by employers against employees based upon race, color, gender, religion, sex, age, genetic information, or national origin.
When A Test Violates Anti-Discrimination Laws
The use of tests and other selection procedures can be a very effective means of determining which applicants or employees are most qualified for a particular job. However, use of these tools can violate Federal anti-discrimination laws if an employer intentionally uses them to discriminate based on race, color, sex, national origin, religion, disability, or age. Further, the use of tests and other selection procedures can also violate Federal anti-discrimination laws if they disproportionately exclude people in a particular group by race, sex, or another covered basis, unless the employer can justify the test or procedure under the law. Below are three instances regarding tests that employers instituted which ultimately led to severe discrimination allegations.
The EEOC settled EEOC v. Daimler Chrysler Corp., a case brought on behalf of applicants with learning disabilities who needed reading accommodations during a pre-employment test given for hourly unskilled manufacturing jobs. The resulting settlement agreement provided monetary relief for 12 identified individuals and the opportunity to take the hiring test with the assistance of a reader. The settlement agreement also required that the employer provide a reasonable accommodation on this particular test to each applicant who requested a reader and provided documentation establishing an ADA disability. The accommodation consisted of either a reader for all instructions and all written parts of the test, or an audiotape providing the same information.
How To Avoid Violation
These three cases are just the starting point for employers in their quest to remain EEOC and Title VII compliant in their policies and procedures. Employers should evaluate the rulings of the above cases and understand the reasoning for the charges brought against the employer so that the employers can avoid placing themselves in the situation, even unintentionally, where they would be liable for discriminatory practices.