Sometimes, accommodating disability just isn't possible
Business Management Daily
When an employee is disabled, the ADA requires employers to try to find accommodations that will help her perform her job’s essential functions.
However, sometimes, that’s just not possible. There may be no practical way to accommodate some disabilities. If that’s the case, termination may the only reasonable option.
Recent case: Jodie, a call-center customer service rep for Amazon, scored far lower than other associates on customer satisfaction surveys. She received many complaints about her “tone of voice.”
Jodie took frequent medical leaves for painful ailments including migraine headaches.
She was eventually fired. She sued, alleging she was that she was disabled and should have been accommodated. She argued that her constant pain affected her ability to converse with customers, leading to the “tone of voice” complaints.
The court dismissed Jodie’s case, noting that she had provided no medical evidence that more time off, or any other accommodation, would help with the tone problem. Nor could she point to another Amazon job within her skill set that would not require her to communicate with customers. Therefore, there was no possible accommodation for her disability. (Kelley v. Amazon, No. 13-36114, 9th Cir., 2016)
Lexology
On June 29, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit heard the National Federation of the Blind’s (NFB) challenge to a Department of Transportation (DOT) Final Rule regarding air carriers’ duty to provide blind-accessible kiosks at domestic airports. The NFB’s complaint alleged, among other reasons, that the DOT’s Final Rule constituted discrimination against disabled individuals, since it does not require air carriers to make all airport kiosks accessible to the blind. Though the D.C. Circuit did not address the NFB’s arguments on the merits and dismissed the challenge, this case is a strong indication of increased attention on ensuring that public accommodations are accessible to blind and visually impaired individuals, especially in the realm of technology.
ADA accommodation: There's an app for that
Business Management Daily
That clunky, expensive magnifier attachment that allows visually-impaired employees to read their computer screens is about to go the way of the floppy disk. For a fraction of the cost, employers can download software apps that read screen contents in a human-sounding voice.
Other apps allow people readout transcripts of telephone conversations in real time.
From creating custom keyboards to interpreting garbled phone conversations, apps can now quickly, and inexpensively, help employers accommodate disabled workers. Employers that remain unaware of these innovations, however, risk real liability.
The ADA requires employers to accommodate an employee’s disability as long as it does not create an undue hardship for the employer. Courts examine hardship relative to the employer’s resources. In other words, larger employers are expected to pony up more for accommodations than small, family-owned, businesses.
The cost of accommodation continues to fall with every hardware and software innovation—which means fewer employers will be able to claim undue hardship.
The best approach is to at least be familiar with the most common apps available, such as those that assist visually and hearing impaired employees. A simple Google search for “low vision apps” and “hearing enhancement apps” will get you started.
Advice: Feel free to ask disabled employees for accommodation suggestions. There is no legal requirement for you to accept an employee’s desired accommodation. However, people with disabilities often know about the latest helping apps.
For less common disabilities, don’t deny requests too quickly. Instead, get all the details about the request including the nature of the employee’s disability and how it affects his or her ability to perform the job’s essential functions.
Then, do some research, find out what options are available and determine the total cost, including any workplace disruption the accommodation may create.
Choose the lowest-cost option that allows the employee to perform the job’s essential function. In many cases, new technology will provide the most economical solution, allowing you to retain productive employees without risking litigation.
ADA Allows Employer to Reduce Employee to Part-Time Status After Return from Medical Leave
JD Supra
Here is a common human resource scenario: An employee goes out of work on medical leave. While she is away from work, the managers or co-workers who cover her duties discover that the work can be readily accomplished without the need for a full-time employee in that position. When the employee returns from medical leave, the employer wants to eliminate the position or change her status to part-time. Can the employer make these changes without violating the reasonable accommodation requirements of the Americans with Disabilities Act?
According to a recent decision from the Ninth Circuit Court of Appeals, this discovery serves as a legitimate business reason for changing the employee’s status, at least under the ADA alone. In Mendoza v. Roman Catholic Archbishop of L.A., the plaintiff was a bookkeeper for a small parish church. During her sick leave, the pastor was able to complete her job duties along with his own, and upon her return offered her a part-time position. She sued, claiming that she had not been offered reasonable accommodation under the ADA because she was not reinstated to her prior position.
The Ninth Circuit Court of Appeals affirmed dismissal of the claim on summary judgment. The court found no evidence offered by the plaintiff that the business reasons given by the church for its decision involved her medical condition or any perceived disability. The ADA does not automatically require that the employee granted a medical leave be reinstated to her prior position.
Of course, this decision might have been different had the employer been subject to the terms of the Family and Medical Leave Act. The FMLA contains a specific requirement that the employee returning from leave be reinstated to her former position or one that is equivalent in terms of things like full-time status. Employers can demonstrate that a job was eliminated for reasons unrelated to the employee’s FMLA leave, but basing this decision on an evaluation of that employee’s value while out on leave risks an FMLA interference claim. While this case provides a good exit strategy for employers, its usefulness may be limited to those situations where FMLA leave rights do not apply.
Lexology
Employment is generally presumed to be “at will” absent contract terms to the contrary. Such a presumption enables both the employer and the employee to terminate the work relationship at any time, for any reason. “Employment at Will” allows employees to take employment without an obligation to stay for a specific duration of time, unless a contract expressly states a minimum employment period. Because employees are free to leave a job whenever they please, employers are also permitted to terminate employees whenever they desire, so long as the law does not prohibit the termination. But termination of an at-will employee may be prohibited by statute or by public policy and thus become wrongful.
NJ Pork Roll Plant Worker's Disability Suit Gets Trimmed
Law.com
A plaintiff who claimed she suffered discrimination by association because she worked in the same pork roll factory as her obese husband has had her suit trimmed by a federal judge in Trenton.
Louann Clem raised discrimination claims for hostile work environment and constructive discharge because her supervisors allegedly commented to her about the gastric distresses her husband, who worked at the same company, experienced after undergoing gastric bypass surgery. But U.S. District Judge Freda Wolfson of the District of New Jersey dismissed without prejudice the plaintiff’s associational discrimination claim under the Americans With Disabilities Act.
Metro moving forward with plan to use Uber, Lyft for paratransit services
Washington Post
This fall Metro will officially open the bidding process for contractors to provide paratransit services, providing an alternative to MetroAccess, its door-to-door service for the elderly and people with disabilities.
Find middle ground between vouchers, ADA
WiscNews
U.S. Sen. Ron Johnson is seeking to prohibit Department of Justice officials from enforcing parts of the Americans with Disabilities Act at private voucher schools, the Wisconsin State Journal reported July 5.
Celebrating 26th anniversary of Americans with Disabilities Act
The Lake Country Echo
July 26 marks the 26th anniversary of the Americans with Disabilities Act (ADA). Celebrations of the signing of the ADA by President George H.W. Bush on July 26, 1990, are taking place across the nation.
The ADA and the ADA Amendments Act of 2008 (ADAAA) give civil rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age and religion. The ADA and ADAAA also assure equal opportunity for individuals with disabilities for access to businesses, employment, transportation, state and local government programs and services, and telecommunications.