Settlement Agreement: Omaha Performing Arts Society
No need to offer indefinite leave as disability accommodation
Business Management Daily
Sometimes, all a disabled employee needs in order to return to her job is a little bit of additional leave. Courts consistently rule that under the ADA, additional leave beyond sick leave or FMLA leave can be a reasonable disability accommodation as long as it is not indefinite.
The employee must provide some sort of estimated date of return to work. That return can either be without restrictions or with additional reasonable accommodations.
Recent case: Jasmine worked as a registered nurse at Houston Methodist San Jacinto Hospital. She had direct patient contact, as did every other registered nurse the hospital employed. Pursuant to a policy that required employees to undergo standard immunizations, Jasmine received a regular flu shot.
Unfortunately, after one flu shot, Jasmine developed physical problems, including severe swelling, pain and numbness that restricted her ability to walk and stand for long periods of time. She was diagnosed with unspecified connective tissue disease, which her doctors attributed to the vaccination.
When her condition worsened and began to interfere with her ability to care for patients, she took a medical leave of absence and applied for short-term disability leave through the hospital’s disability insurer. Her doctors said that she could not perform her job.
But her short-term disability application was rejected after the insurer’s doctors claimed there was no medical evidence she could not perform her job. Jasmine appealed.
Jasmine also asked for more time off as a reasonable accommodation; otherwise, she sought permission to telecommute from home.
HR told her she was limited to six months’ leave, but that it would provide her with an additional time off while her disability leave appeal was pending. HR said she would not be permitted to work from home, as all registered nurses had essential functions that included direct patient care.
Jasmine was terminated when she lost the disability appeal.
She sued, alleging that her employer should have allowed her to take even more leave so she could recover enough to do her job.
The hospital argued that Jasmine’s doctors had never provided an estimated return date, making her accommodation request unreasonable.
The court agreed. It said that additional time off can be a reasonable accommodation, but only if the employee can provide an anticipated return date. Jasmine never did. Her lawsuit was dismissed. (Dark v. Houston Methodist San Jacinto Hospital, No. H-14-3540, SD, TX 2016)
Final note: If you have a workplace rule that states employees will be automatically terminated once they use up all available paid and unpaid leave, make sure you clearly let employees know that they should request a reasonable accommodation if they need additional time off in order to return to work.
In this case, the hospital leave policy clearly stated that employees should contact HR before exhausting available leave if they were interested in an extension. Jasmine did that and the hospital began the interactive accommodations process. It provided her with additional leave while her disability application was under review. But it did not have to extend that leave indefinitely.
Deaf Atlantic City woman sues Taco Bell for discrimination
Press of Atlantic City
An Atlantic City woman filed a lawsuit Wednesday against Taco Bell after she said she was treated differently at the drive-through window at two area locations.
Gina Cirrincione, 36, who is hearing-impaired, alleges in the lawsuit that a Taco Bell on Atlantic Avenue in Atlantic City refused her surface in March because she wrote her order on a note and passed it to an employee. The complaint said no employee at the chain store communicated to Cirrincione in any way.
In a separate incident, Cirrincione claims she was “berated” by a manager at a Taco Bell on the Black Horse Pike in Pleasantville for ordering the same way at a drive-through window in January. The chain restaurant eventually filled her order, the complaint said, but she was told to order at the counter instead of the drive-through window next time.
The complaint alleges the employees’ behavior violated the Americans with Disabilities Act.
“Defendants’ discriminatory conduct caused Plaintiff to suffer emotional distress, including humiliation and frustration,” the complaint stated.
Cirrincione is suing for compensatory and punitive damages, and for Taco Bell to change its policies in handling deaf customers.
Cancer Survivor Not Qualified for Job Lacks ADA Claim
Bloomberg BNA
A transportation company didn't violate the Americans with Disabilities Act by not hiring a truck driver applicant who is a cancer survivor because he wasn't qualified for the job, the U.S. Court of Appeals for the Tenth Circuit ruled ( Kilcrease v. Domenico Transp. Co., 2016 BL 222689, 10th Cir., No. 15-1320, 7/12/16 ).
The ADA doesn't “turn on” until an individual with a disability can show he is “otherwise qualified” for the job, said Paul Godec, a Denver lawyer who represented Domenico Transportation Co.
The court's decision provides helpful clarification on what standards apply in an ADA failure to hire case, Godec told Bloomberg BNA July 12.
The appeals court affirmed summary judgment for Domenico on Mark Kilcrease's ADA discrimination and retaliation claims.
Kilcrease, a survivor of acute myeloid leukemia, contended Domenico violated the ADA by rejecting his 2009 application for a truck driver job in Colorado. The company said it denied Kilcrease employment because he couldn't meet a requirement of three years of mountain-driving experience.
An ADA plaintiff must produce “credible evidence” he possesses the objective qualifications for the job, the Tenth Circuit said.
Since Kilcrease couldn't show he had the requisite mountain-driving experience or that it wasn't an essential job function, the district court properly dismissed his ADA claim, Judge Carolyn B. McHugh wrote.
Judges Paul J. Kelly and Scott M. Matheson joined in the decision.
Plasma donor rejected for schizophrenia can sue under ADA: 10th Circuit
Reuters
A man with borderline schizophrenia can sue Octapharma Plasma under the Americans with Disabilities Act for refusing to buy his plasma, a federal appeals court held on Tuesday.
A divided panel of the 10th U.S. Circuit Court of Appeals found that plasma donation centers (PDCs) are "service establishments" covered by Title III of the ADA, which bans disability discrimination by places of public accommodation, reversing a federal magistrate judge in Utah.
Serial Plaintiffs Are Filing Waves of Title III Disability Cases
JD Supra
Hotels, restaurants and retail establishments have been flooded with new lawsuits filed by serial plaintiffs that allege that a property (a place of public accommodation) is in violation of Title III of the Americans with Disabilities Act (ADA) or the equivalent state law, such as the Arizonans with Disabilities Act (AzDA).
Nearly identical allegations are filed against businesses throughout the state, and they usually allege that an individual with a disability either visited a business or attempted to visit a business, but was unable to do so due to a barrier on the property. In other words, the plaintiff is alleging that the company/defendant failed to comply with some aspect of the ADA Accessibility Guidelines (ADAAG). Examples of common barriers that are raised in these lawsuits are: (1) that a parking lot does not have a sufficient number of disabled or van accessible spaces or parking signs (or the signs are not high enough); (2) some part of the exterior of the property or the front door is inaccessible or improperly sloped; or (3) the restroom is not accessible—perhaps a stall is not wide enough or there is no disabled restroom at all. Typically, the plaintiff requests that the court provide it with injunctive relief (i.e., the defendant has to fix the property), compensatory damages (not available under federal law but, in limited circumstances, damages may be available under state law), and attorneys’ fees and costs.
The premise of these lawsuits is simple enough, but the complexity becomes apparent as businesses realize there is no one-size-fits-all response.
New Colorado Laws Grant Employees Access to Personnel Files, Right to Pregnancy Accommodations
JD Supra
The Colorado General Assembly ended the 2016 session by passing significant employment legislation. In June 2016, Colorado Governor John Hickenlooper signed into law House Bill 16-1432, granting employees access to personnel files upon request, and House Bill 16-1438 expanding protections for pregnant employees. As outlined in this Client Alert, all Colorado employers should familiarize themselves with these new laws and update related policies before they take effect.
Employee Care: What Your Business Needs To Do To Comply With ADA & Massachusetts Law
CBS Local
What businesses are required to comply with provisions of the ADA?
Since July 26, 1994, the ADA has applied to all employers, including state and local governments employing 15 or more employees. Many states have a similar statute with lower employee coverage thresholds.
What types of disabilities are covered under the act?
All types of physical or mental impairments are covered if they substantially limit a major life activity, such as, according to the ADA, “hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for oneself, learning or working.” In addition to having covered disability, it is important to remember that the employee or applicant still must meet the employer’s requirements for the job, such as “education, employment experience, skills or licenses,” and he or she must be able to perform the essential functions of the position with or without the help of a reasonable accommodation.
What accommodations are employers required to provide for disabled workers?
Regrettably, there is no simple answer to this question. What is reasonable to the employee may not be reasonable to the employer. The legal answer is any change or adjustment to a job or work environment that will permit a qualified applicant or employee to participate in the application process, perform the essential functions of a job or enjoy the privileges or benefits of employment just the same as employees without disabilities. Examples of accommodations, as provided by the ADA, include:
Providing or modifying equipment or devices.
Restructuring the job. This does not include eliminating essential functions.
Adjustment to the work schedule.
Reassignment to a vacant position.
Adjusting or modifying examinations, training materials or policies.
Providing readers and interpreters.
Making the workplace readily accessible to and usable by people with disabilities.
How does the ADA define ‘undue hardships’ when determining if an employer must provide accommodations for a disabled employee?
Undue hardship focuses on undue difficulty or expense to the employer in making the accommodation. However, a number of factors go into this analysis, including the nature and cost of the accommodation in relation to the size, resources, nature and structure of the employer’s operation. Generally, it will be more difficult for larger employers to show that a proposed accommodation is too costly or burdensome.
In addition to the federal law, are there any city or state laws concerning disabled employees that small business owners in Boston should be aware of?
Yes! As mentioned above, there are state employment laws that cover disabilities and, in Massachusetts, the statute is M.G.L. Ch. 151B. An employer only needs to have six employees to be subject to the law’s requirements. The key part of the reasonable accommodation process under state and federal law is the dialogue that needs to happen between the employee and the employer. This process should be documented and must truly involve an interactive process. If an employer is faced with a claim, it will want to show that it tried to work with the employee rather than just concluding the person couldn’t do the job.