Connecticut: HR Note to Self - Accommodate Obvious Disabilities
The National Law Review
A recent case out of Connecticut federal court serves as a fine reminder that a good dose of common sense can be indispensable for staying out of trouble under the Americans with Disabilities Act (ADA). In the case in question, a call center employee was a top performer, consistently receiving sterling performance evaluations and even a special award for outstanding service. Unfortunately, a car accident led to disabling spine, hip, elbow, shoulder, and knee injuries. The employee’s performance suffered as her injuries made it very difficult to sit at her desk for prolonged periods. She told her employer this and asked for more non-telephone duties (e.g., training). Eventually, the employee’s performance deteriorated to the point of termination. The question was not whether the employee was disabled, but whether the employer had a duty to accommodate her disabilities. The company admitted that it could have given the employee walking breaks, a different chair, or a standing desk, but stated that they never received a doctor’s note specifying the inability to sit for long periods of time, nor did the employee specifically request any of the available accommodations. The court, however, sided with the plaintiff, finding that an employer has a duty to reasonably accommodate an obvious disability – meaning a disability that the employer knew or should have known about. In this case, when the employee disclosed her disabilities and limitations, the company should have engaged in the interactive process to determine whether an accommodation was reasonable. It did not do so. As a result, the case was allowed to proceed to a jury. The lesson for HR here is that if an employee is struggling with an obvious disability and something in the back of your head tells you “maybe we ought to try…” then you should likely try it or at least have a discussion about it – especially if it’s as easy as giving someone a “walking break.”
Jacobs Field Services Must Face ADA Trial After Job Retraction
Bloomberg BNA
A construction firm that withdrew an offer for a field engineer job after discovering the prospective employee had a rotator cuff impairment must stand trial on his Americans with Disabilities Act claim, the U.S. Court of Appeals for the Fifth Circuit ruled Jan. 13.
Reversing summary judgment for Jacobs Field Services North America Inc., the court said that under the ADA Amendments Act, which expanded the statutory definition of “disability,” rejected employee Michael Cannon's impairment qualified as a disability under the act's “more relaxed standard” for ADA coverage.
The decision illustrates how the ADA Amendments Act, which took effect in 2009, allows more workers to surmount the threshold issue of “disability” and get to a jury on their discrimination claims.
County passes resolution to settle ADA lawsuit
Staunton News Leader
Three years following complaints to federal officials regarding “inaccessible” polling places in Augusta County, the Augusta County Board of Supervisors passed a resolution to settle a civil action lawsuit with the U.S. Department of Justice.
In a unanimous 6-0 vote, the board authorized County Attorney Patrick Morgan to negotiate and execute a consent decree to settle an Americans with Disabilities Act lawsuit that alleges the county violated the act.
Can Your Employer Demand Intrusive Medical Testing? Court Says Yes
Huffington Post
Does your employer have any business sticking its nose into your body (now there's a picture you wanted in your head) by ordering you to undergo medical examinations and biometric testing to determine if you are likely to become ill? According to one court, the answer is yes. A Wisconsin federal court has found that an employer's so-called "wellness program" didn't violate the Americans With Disabilities Act.
A Win for Wellness Programs: Federal Judge Rules No ADA Violation (No Matter What the EEOC Says)
Lexology
The question of whether a wellness program violates the requirements of the Americans with Disabilities Act (ADA) has been unclear for some time. The Chicago District Office of the U.S. Equal Employment Opportunity Commission (EEOC) increased employers’ anxieties by filing suit against several companies in late 2014, asserting that their wellness programs violated the ADA because they were not “voluntary” medical exams (or employee health programs).
The ADA generally requires that employer-mandated medical exams—which could include a biometric screening or completion of a health risk assessment—be “voluntary.” The only exception to this “voluntary” requirement (other than a post-offer, pre-employment medical examination) is a medical exam that is job-related and consistent with business necessity. In general, biometric screens and health risk assessments are not likely to be job-related and consistent with business necessity. Prior to these lawsuits, the EEOC had provided little or conflicting informal guidance as to what was considered “voluntary” for these purposes.
In April of 2015 (after these lawsuits were filed), the EEOC issued proposed rules clarifying when an employee health program (including a wellness program) would be considered “voluntary” under the ADA. However, these proposed rules, while providing some clarity, unfortunately muddied the waters because they did not sync with the rules for wellness programs under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Affordable Care Act (ACA). Thus, employers continue to face uncertainty about whether their wellness programs are compliant under the ADA.
With the Western District of Wisconsin’s December 31 ruling disagreeing with the EEOC’s position regarding the “voluntary” standard, employers now have more clarity about how to design an ADA-compliant wellness program.
The National Law Review
Last month, a district court in Wisconsin dealt a blow to the EEOC and the future of its proposed ADA wellness program regulations. In EEOC v. Flambeau, Inc., the court held that that an employer did not violate the Americans with Disabilities Act by requiring its employees to participate in a wellness program, including by undergoing health risk assessments and biometric screenings, as a precondition of participating in the employer’s health insurance plan.
Employers, the ADA interactive process applies to post-offer medical examinations too
Lexology
A recent court decision provides helpful guidance (although a little painful for employers) on the expanded definition of “disability” under the ADA Amendments Act and how an employer should respond when a post-offer medical examination reveals a disability.
Could a clearer policy have been a key to success for Walmart?
HR.BLR.com
On November 3, 2015, the U.S. district court in New Hampshire ruled on Walmart's requests for pretrial dismissal against a former pharmacist who claimed she was unlawfully terminated.
Is Your Website Subject to the ADA?
JD Supra
Businesses that use websites (virtually everyone) are now receiving, with increasing frequency, demands related to compliance with the Americans with Disabilities Act (ADA).
These are unlike traditional employment cases implicating Title I of the ADA. Title I prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in:
- Job application procedures
- Hiring
- Firing
- Advancement compensation
- Job training
- Other terms, conditions, and privileges of employment
These new ADA Title III claims are an entirely different animal. Under Title III, issues arise related to information technology, intellectual property, data privacy and security, and whether the Internet is a “place of public accommodation.” Unfortunately, the answers to many of these questions are unsettled.
Is My Company's Website Accessible?
Lexology
Many of your clients or customers would answer, “Of course. I open Chrome or Internet Explorer, type in the address, and there I am, ready to log-in and shop, pay my bill, or schedule an appointment.” For many others, however, the answer is not that simple. Users who suffer from disabilities, particularly conditions related to vision and hearing, might find navigating your website challenging. Since nearly all companies have a web presence and many increasingly depend entirely on web traffic, your company will want easy site access for everyone. A recent uptick in litigation and enforcement involving websites and Title III of the Americans with Disabilities Act (ADA) provides extra incentive to act now.
Nueces County starts mandatory ADA training for employees
KRIS Corpus Christi News
Nueces County's efforts to get its buildings in compliance with the Americans with Disabilities Act is now affecting all of its employees.
Every worker is required to attend a four-hour training course. It's part of the county's settlement with the Justice Department.
The goal is to help ensure that every county office is accessible for citizens with disabilities.
"We're going to actually have some people from the community to teach us how to interact with people that may be blind; people that may be in wheelchairs; people that may be deaf," Tyner Little, ADA coordinator for Nueces County explains to KRIS 6 News.
The county will host another training session next week at the Richard M. Borchard Regional Fairgrounds. Employees will also have a chance to attend a make-up session in February.