Supplemental Advance Notice of Proposed Rulemaking (SANPRM): Accessibility of Web Information and Services of State and Local Government Entities - Published in the Federal Register on May 9, 2016.
The Department of Justice (Department) is considering revising the regulation implementing title II of the Americans with Disabilities Act (ADA or Act) in order to establish specific technical requirements to make accessible the services, programs, or activities State and local governments offer to the public via the Web. In 2010, the Department issued an Advance Notice of Proposed Rulemaking (2010 ANPRM) titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations. The purpose of this Supplemental Advance Notice of Proposed Rulemaking (SANPRM) is to solicit additional public comment specifically regarding the regulation implementing title II, which applies to State and local government entities. Specifically, the Department is issuing this SANPRM in order to solicit public comment on various issues relating to the potential application of such technical requirements to the Web sites of title II entities and to obtain information for preparing a regulatory impact analysis.
Surprise!? DOJ Delays Web Accessibility Rulemaking (Yet Again)
Lexology
Website accessibility seems to be the Wild, Wild, West of the World Wide Web, and it is not going to get tamer anytime soon. Since July 2010, the DOJ has sought to issue a proposed rulemaking setting standards for website accessibility under the Americans with Disabilities Act (“ADA”). After numerous delays, we thought we had an end in sight late last year when the DOJ announced it would issue web accessibility regulations applicable to State and local government entities under Title II – as a precursor to Title III regulations that would apply to businesses.
But on April 28th, the DOJ took a step back when it withdrew the Notice of Proposed Rulemaking under Title II, which had been sitting with OMB since July 2014. Yesterday, the DOJ followed up with a Supplemental Advance Notice of Proposed Rulemaking (SANPRM) soliciting additional public comment on various website accessibility issues and asking for related cost information for preparing a regulatory impact analysis.
Cummins Power Generation to Pay Over $87,000 to Resolve EEOC Disability Lawsuit
A Minneapolis-based power company will pay $87,500 and furnish other relief to settle a disability discrimination lawsuit by the U.S. Equal Employment Opportunity Commission (EEOC).
EEOC said Cummins Power Generation, Inc. violated the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) when it required an employee to sign an overbroad release of medical records to take a fitness-for-duty examination, and sent him a questionnaire in connection with the examination seeking family medical history, and then fired him when he objected to the breadth of the release.
Clearly Defining the Essential Functions of the Job Can Make or Break Your ADA Case
JD Supra
As a recent federal appellate decision confirmed, the Americans with Disabilities Act does not require employers to always accommodate a disabled employee. Instead, it is the employee’s burden to first show that he or she can perform the essential functions of the job with said accommodation. Alternatively, if the employee cannot perform the essential functions of the job, he or she may seek, as a reasonable accommodation, a reassignment to a vacant position as long as the employee is qualified for that position. In both cases, the employer is relieved of the accommodation requirement if it can show an undue hardship would result. It was these essential function and vacancy issues that were the focus of the First Circuit’s opinion in Lang v. Wal-Mart Stores.
Beware knee-jerk firing after FMLA leave
Business Management Daily
Employees who return from FMLA leave may not be fully healed. They may, in fact, have developed serious enough medical problems to be disabled under the ADA.
Firing such an employee because she is out of leave and can’t resume her old position will probably trigger a lawsuit.
Instead, always consider whether the returning worker may now be disabled and entitled to reasonable accommodations. Those can include removing nonessential functions from her job description or providing assistance with essential job functions.
Or accommodations can involve modifying an employee’s schedule or granting additional time off.
Recent case: Robyn worked as a sous chef at the Great Wolf Lodge resort in Pennsylvania, a job that requires extensive bending, stretching and standing. She had shoulder surgery and was out of work for 10 days.
She returned to a light-duty position but soon had to have knee surgery, too. That’s when she asked for FMLA leave, which was approved.
But when she was out of leave, she still couldn’t resume all her prior duties. Her doctors placed restrictions on bending and standing for long periods of time and recommended more light-duty work.
However, Great Wolf Lodge refused to consider Robyn’s request and terminated her instead.
Robyn sued, alleging that the resort should at least have considered an accommodation.
Great Wolf Lodge argued she wasn’t disabled, but the court disagreed. It said being unable to stand and bend her knees was a substantial impairment entitling her to ADA protection. (Maley v. Great Wolf Lodge, No. 3:15-CV-379, MD PA, 2016)
Advocates for the disabled find fault in many realty websites
Washington Post
It hasn’t gotten much public attention, but here’s something that has the real estate brokerage industry upset: a sudden wave of potentially costly and embarrassing legal challenges to companies’ websites, alleging violations of the Americans With Disabilities Act, or ADA.
Small businesses get protection against some disability lawsuits
Central Valley Business Times
California has a new law, effective immediately, that is expected to block the practice of suing small businesses over minor infractions of the state’s laws protecting the disabled.
The first significant reform to California’s disability access regulations since 2012, the law reduces the employee ceiling for qualifying businesses from 100 to 50 employees, and makes other clarifying changes.
“This is a major victory for all Californians,” says state Sen. Richard Roth, D-Riverside, author of the law that he calls a “bipartisan, commonsense solution that will guarantee access for disabled Californians by providing small businesses with the tools and resources necessary to comply with state and federal disability access regulations.”
The Legislature has attempted to reform ADA access laws and regulations over the past decade, with the most recent and substantial measure being Senate Bill 1186 (2012) by former Senate President pro Tem Darrell Steinberg, D-Sacramento, and former Sen. Robert Dutton, R-Rancho Cucamonga.
While SB 1186 created important policies regarding Certified Access Specialists (CASPs) and compliance notification, there remain significant barriers to ensuring small businesses have the resources and tools necessary to maintain compliance with state and federal disability access laws.
As a result, many businesses throughout California have found themselves out of compliance with state and federal disability access laws, Mr. Roth says. This situation also has prevented Californians in the disability community from having full and equal access to facilities and services.
SB 269, jointly authored by Sen. Andy Vidak, R-Hanford, did not receive a single “no” vote throughout the legislative process. It is a narrowly crafted provision to provide businesses with disability access education, resources and training, and allows small businesses that have been proactive in identifying access issues a reasonable amount of time to fix any problems identified before a lawsuit arises.
New state law eases penalty for minor ADA violations
Stockton Record
Legislation to protect small businesses against costly lawsuits and fines over minor violations of disabled access laws, while helping increase access, was signed into law Tuesday by Gov. Jerry Brown.
The reform of the state’s Americans with Disabilities Act rules gives a small business, one with 50 or fewer employees, 120 days to correct any violations found by an access specialist and protect it from any claims during that period.
It also would protect a small business from certain minor ADA violations, giving it 15 days to make corrections without any penalties. Those violations involve outside and interior signage; parking lot striping color and visibility; and detectable warning surfaces (bumpy ground strips).
State Sen. Cathleen Galgiani, D-Stockton, a principal co-author of the new law, said it will help reduce predatory lawsuits and steep statutory fines of $4,000 for any violation.
Flurry of ADA lawsuits anger business owners
WOWT
A flurry of lawsuits has caught dozens of Omaha businesses off guard. Most of them are "mom and pop stores" or restaurants. All are accused of violating the Americans’ With Disabilities Act, or ADA.
The Changing Role of Closed Captioning for PEG Channels
Government Video
In recent years, the FCC has been adding new rules expanding closed captioning requirements to online video. To understand the implications of these new rules and how they affect various markets, Government Video recently spoke with Carol Studenmund owner of LNS Captioning in Portland, Ore. and chair of the Mount Hood Cable Regulatory Commission in Oregon. This is Part I of the interview.
EEOC Issues New Guidance on Leaves of Absence Under the ADA
Workforce Management (blog)
What does the EEOC want you know about your treatment of employees’ leaves of absence under the ADA? A whole bunch, according to this guidance, published yesterday by the agency.
The guidance, aptly titled Employer-Provided Leave and the Americans with Disabilities Act, addresses, according to the EEOC, “the prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation,” which the agency believes “serve as systemic barriers to the employment of workers with disabilities.”
Time Off as an ADA Accommodation? You Better Be-Leave It!
Lexology
Many employers maintain policies that restrict the amount of time an employee can take off from work, or that prohibit employees who are ineligible for leave under the Family and Medical Leave Act to take time off from work at all even when ill or injured. But a new resource document issued by the EEOC reminds employers that leave can be a reasonable accommodation under the Americans with Disabilities Act (“ADA”), and that arbitrary limits on leave may be a violation of the law.
Judge: Franklin Institute violated ADA by charging disabled man's caregiver
PhillyVoice.com
Museum charged disabled man and his 24-7 caregiver for admission under membership plan
Lexology (registration)
On April 17, 2016, Pennsylvania Governor Tom Wolf signed legislation authorizing the use of medical marijuana (the Medical Marijuana Act or MMA) in Pennsylvania. The new law - effective May 17, 2016 - allows patients suffering from a variety of ailments, including HIV/AIDS, autism, cancer, and post-traumatic stress disorder, to use marijuana to treat their conditions. Smoking marijuana is still illegal under the MMA, and marijuana may only be dispensed using alternative delivery systems such as pills, oils, topical gels, creams or ointments. Under the new law, medical marijuana will be dispensed only to an individual (or a caregiver of an individual) who receives a certification from a medical provider and an identification card issued by the Pennsylvania Department of Health.
The MMA poses challenges for employers intending to enforce drug-free workplace policies, especially considering the new law directly conflicts with federal law prohibiting the use of marijuana.
EEOC Addresses Issue of Leave as ADA Accommodation
Bloomberg BNA
The EEOC has provided employers with a new source of information on the use of employer-provided leave as an accommodation under the Americans with Disabilities Act.
According to a resource document issued May 9 by the Equal Employment Opportunity Commission, employers must provide workers with disabilities access to leave on the same basis as similarly situated nondisabled workers.
So when an employee requests leave for reasons related to a disability and the leave falls within the company's existing leave policy, the employer must treat the request the same as a request for leave for reasons unrelated to a disability, the EEOC says.
The document should provide clarity to employers and employees on an issue the EEOC has been preparing guidance on for a numbers of years, an effort spearheaded by Commissioners Chai Feldblum (D) and Victoria Lipnic (R) (233 DLR A-1, 12/5/11).
In June 2012, Feldblum indicated that she and Lipnic had been working steadily on proposed guidance up until March 2012, when the effort took a back seat to other items on the EEOC's agenda (123 DLR C-1, 6/26/12).
“The purpose of the ADA's reasonable accommodation obligation is to require employers to change the way things are customarily done to enable employees with disabilities to work,” the agency says in the document. “Leave as a reasonable accommodation is consistent with this purpose when it enables an employee to return to work following the period of leave.”
The document states that the ADA's accommodation provisions don't require employers to provide paid leave beyond what they provide under a paid-leave policy and that employers may deny requests for disability-related leave when it can be shown that granting the accommodation would impose an undue hardship on its business.