LongIsland.com
Standing at United Cerebral Palsy in Utica, NY, U.S. Senator Charles E. Schumer yesterday called on Congress to pass the Disability Integration Act. Schumer explained that this new legislation will help individuals with disabilities live more independently by providing necessary at-home and community-based services and supports. Specifically, the legislation ensures that any individual who is found eligible for institutional care must also be given the option to receive the same necessary services and supports at home, or in a setting of their choosing, that would have otherwise been provided in an institutional setting. Schumer explained that the legislation gives individuals with disabilities the option to live more independently, and in the comfort of their own home, rather than in an institutional facility away from their friends and family. Moreover, Schumer said that this legislation will help ease the financial burden of those who do not want to live in a facility and may be paying high out-of-pocket insurance costs for in-home services and supports. Schumer also went on to say that the bill will help alleviate the emotional burden that family members are often faced with when taking care of their loved ones with disabilities who are not receiving the necessary services and supports. Schumer, the sponsor and author of this bill, said Congress should do promptly pass this bill, as it will help promote independent living among Americans with disabilities.
EEOC Issues Guidance Directed Specifically to HIV Positive Employees and Their Physicians
Lexology
On December 1, 2015, in conjunction with World AIDS Day, the EEOC issued two documents addressing the legal rights available to employees with HIV/AIDS under the Americans with Disabilities Act (“ADA”).
Living With HIV Infection: Your Legal Rights in the Workplace Under the ADA explains that applicants and employees are protected from employment discrimination and harassment based on HIV infection, and that individuals with HIV infection have a right to reasonable accommodations at work. The guidance provides tremendous value to human resource professionals and other management decision-makers who may be faced with accommodation requests as it clearly explains how the EEOC believes the process of requesting a reasonable accommodation should go. The document assures employees that in most situations the employee can keep her condition private. It also provides several examples of reasonable accommodations (e.g. altered break and work schedule, changes in supervisory methods, unpaid time off, permission to work from home, etc.). It advises employees “[b]ecause an employer does not have to excuse poor job performance, even if it was caused by a medical condition . . . it may be better to ask for an accommodation before any problems occur or become worse.” Businesses should heed the EEOC’s underlined warning that employers must base employment decisions (hiring, termination, reasonable accommodation) on objective evidence, not medical myths or stereotypes.
ADA and FMLA compared: What are an employer's leave requirements?
HR.BLR.com
Both the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) often apply to employees who are seriously ill or injured. When this happens, employers may be required to grant leave to the employee under both laws. What are employees legally required to provide?
Website and Mobile App Accessibility: The DOJ Kicks the Can
JD Supra
In a previous post, we wrote about Title III of the Americans with Disabilities Act (“ADA”) as it applies to businesses’ public websites and mobile apps. At the time of our last writing, it was expected that the United States Department of Justice (“DOJ”) would publish its proposed rules regarding website accessibility under Title III by April 2016. That expectation had many businesses taking a wait-and-see approach to addressing website accessibility, delaying action until there was more clarity on how the DOJ’s rules will apply to websites and what the business must do to comply. In an unexpected move, however, the DOJ recently announced it is again delaying the proposed rules, this time until 2018.
Lexology
Last week Judge Joseph N. Laplante of the United States District Court for the District of New Hampshire issued a decision inPosteraro v. RBS Citizens, N.A., Civil No. 13-cv-416 (D.N.H. Dec. 29, 2015), on Defendants’ Motion for Summary Judgment. The case involved a former Citizens Bank employee who was terminated from Citizens Bank after failing to return to work after a leave of absence for her medical conditions—post-traumatic stress disorder (“PTSD”), depression, and anxiety. Ms. Posteraro brought claims for disability discrimination (for failure to provide a reasonable accommodation); sexual and disability harassment causing a hostile work environment (including allegations that her tenure at Citizens Bank was “rife with gender and disability-based harassment”); intentional infliction of emotional distress; wrongful discharge; retaliation (after she opposed the alleged sexual harassment and pursued accommodations for her disabilities); and constructive discharge.
Another Judge Puts the Breaks on EEOC Wellness Plan Overreach
Lexology
Our firm has acknowledged recently (see http://www.seyfarth.com/publications/MA041715-EB) that there are some questions about the authority of the EEOC to issue its proposed wellness regulations that claim legitimacy under the Americans with Disabilities Act (ADA). Just before the New Year, Judge Crabb of the U.S. District Court for the Western District of Wisconsin added her voice to those who think the EEOC is overreaching.
The new decision arises out of EEOC v. Flambeau, Inc., No. 14-cv-638 (W.D. Wisc. Dec. 30, 2015).
Flambeau Wellness Program Testing Falls Within ADA Safe Harbor
The National Law Review
On December 30, 2015, a federal judge in the Western District of Wisconsin ruled in favor of Flambeau, Inc. (Flambeau) and against the Equal Employment Opportunity Commission (EEOC) in holding that Flambeau’s medical exams as part of its wellness program and self-insured medical plan did not violate the Americans with Disabilities Act (ADA).
What's An Invisible Disability? 7 Things You Need To Know
Bustle
Think of the word "disability". What do you see? The people of the Special Olympics, swimming and running and jumping in wheelchairs or without limbs? Guide dogs? Stephen Hawking? People rudely using disabled parking spots without actually "looking" disabled? One thing that, unless you have personal experience with it, may not have immediately popped into your head is the phrase "invisible disability". But a huge range of disabilities currently recognized in today's medical community are completely invisible, even to the trained eye. It's time for us all to change our mental image of what being disabled means.
Why Employers Need to Update Their Workplace Drug and Alcohol Policies in 2016
Lexology
The beginning of a new year is a good time for employers to review their workplace policies to assess what changes are necessary. Employers that conduct drug and alcohol testing should consider updating their substance abuse testing policies now, particularly if they have not done so in several years.
CTA plans 100 percent ADA accessible rail system by 2036
Daily Northwestern
Chicago Transit Authority announced Wednesday its plan to make all CTA rail stations handicap accessible within 20 years.
CTA President Dorval Carter introduced this plan at Chicago’s celebration of the 25th anniversary of the Americans with Disabilities Act. While 70 percent of CTA rail stations are currently accessible, the project is meant to target the 46 stations currently without elevators.
“We’re proud of the progress we’ve made in the last 25 years, which has only been possible thanks to the strong commitment from Mayor Emanuel and the City of Chicago, as well as the involvement of the disability-rights community,” Carter said in a news release. “We do, however, recognize there is still more work to do and the creation of this new program will help map out a path for CTA to deliver on this commitment two decades from now.”
Amputee accuses Marrero Shopping Center of ADA violations
The Louisiana Record
A Jefferson Parish man says The Marrero Shopping Center contains architectural barriers that restrict access to the handicapped.
Lawrence Fultz filed a lawsuit Dec. 31 in U.S. District Court for the Eastern District of Louisiana against Marrero Partners LTD, alleging violations of the Americans with Disabilities Act.
According to the complaint, Fultz, a left-leg amputee, requires crutches or a wheelchair for mobility. He claims the defendant’s shopping center has access aisles that are too narrow, handrails that are too short and bathroom fixtures that are too high for handicapped users, plus other violations. These alleged ADA violations discriminate against the disabled, the suit says, and Fultz is bringing his action to order the defendant to alter the property to comply with the law.
Former employee sues Philadelphia Gas Works over alleged violations of ADA, FMLA
The Pennsylvania Record
A Philadelphia man is suing his employer after he was allegedly terminated for failure to file personal medical documentation.
Alfred J. Krokenberger filed a complaint Dec. 21 in the U.S. District Court for the Eastern District of Pennsylvania against Philadelphia Gas Works, alleging that the defendant violated the Family and Medical Leave Act, the Americans with Disabilities Act, and the Pennsylvania Human Relations Act, in addition to unlawfully terminating him.
According to the complaint, Krokenberger was employed by the defendant from December 2009 until January 2014. During his employment he worked as a field service technician, and at all times performed satisfactorily. The plaintiff suffers from a number of conditions, which includes bipolar depression and anxiety. Because of his disabilities, the plaintiff was allowed to take time off for his health. When the plaintiff moved residencies, he notified the defendant of the change, however, when the defendant sent medical documentation to the plaintiff's old address, he was terminated on Dec. 23, 2013, for failure to fill out and send in the information, the complaint states. He was notified of the termination on Jan. 3, 2014.
Krokenberger is seeking compensation for all damages suffered, lost wages, benefits and legal fees. He is represented by Sidney L. Gold of Sidney L. Gold and Associates PC in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania Case number 2:15-cv-06731
Man sues Chemalloy alleging that he was fired over back injury
The Pennsylvania Record
A Spring City man is suing his former employer alleging that he was terminated because of an injury.
Michael Kelly filed a complaint on Dec. 28 in the U.S. District Court for the Eastern District of Pennsylvania against Chemalloy Co. and Nizi International, alleging violations of the Americans with Disabilities Act and the Pennsylvania Human Relations Act and wrongful termination.
According to the complaint, Kelly was employed by the defendant as a production worker, which was a physically exerting job. Due to the nature of his work, Kelly had been experiencing back pain beginning April 2, 2014, which became severe enough that he sought out medical attention. When he consulted his doctor about the pain, he was given a note stating that he should not engage in strenuous activity for several weeks. Kelly informed his supervisor about the restriction in his work, and later the same supervisor confronted Kelly on April 10, 2014, to inform him of his termination due to poor work performance. Kelly offered to show the doctor's note, but the supervisor had no interest. He alleges he was terminated because of his back injury and the restriction on heavy lifting.
Kelly is seeking compensation for all damages suffered, lost wages, benefits and legal fees. He is represented by Christopher J. Delgaizo of Kraemer, Manes and Associates PC in King of Prussia.
U.S. District Court for the Eastern District of Pennsylvania Case number 2:15-CV-06817
The Airplane of the Future Could Be Much More Accessible for Passengers with Disabilities
CityLab
For one thing, the DOT is getting serious about making it easier to go to the bathroom.