Disabilities Offer a Challenge for Job Seekers and the Workplace
Workforce Management
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Brookdale Faces First-Of-Its-Kind ADA Lawsuit
Senior Housing News
Brookdale Senior Living (NYSE: BKD) is the target of what might be the first-ever class action lawsuit against an assisted living provider brought under the Americans with Disabilities Act of 1990 (ADA).
The lawsuit, filed July 13 in U.S. District Court in California, accuses the nation’s largest senior housing provider of violating the ADA, as well as committing financial abuse. The lawsuit was brought by four seniors currently living in Brookdale communities in California.
Specifically, Brookdale communities in California are reportedly refusing to offer residents who have mobility disabilities equal and full access to transportation services. Additionally, Brookdale is allegedly failing to provide its disabled residents with an emergency evacuation plan that is designed to guarantee their “prompt and effective evacuation of in the event of an emergency.”
Both of these failings violate the ADA, according to the lawsuit.
Brookdale, for its part, is “defending [itself] vigorously” against the allegations.
“We were notified that California attorneys representing four residents filed a lawsuit trying to create a class action,” Brookdale Senior Public Relations Specialist Heather Hunter told Senior Housing News. “We believe this lawsuit is without merit.”
It is critical that assisted living providers comply with the ADA, as most residents in assisted living communities have some form of disability, Gay Grunfeld, a partner with Rosen Bien Galvan & Grunfeld LLP in San Francisco who’s representing the defendants in the lawsuit, explained to SHN.
When asked why more lawsuits against assisted living providers haven’t been brought under the ADA, Grunfeld said she didn’t know.
EEOC Sues Capstone Logistics For Disability Discrimination
Capstone Logistics LLC, a leading provider of outsourced supply chain solutions to distribution centers in the grocery, food service, retail and other industries, violated federal law when it refused to hire an applicant because of his deafness, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced today.
According to the EEOC's suit, George Harris, who is deaf, applied for a warehouse position with Capstone and the site manager at Capstone's warehouse in Jessup, Md., emailed Harris to schedule an interview. When Harris arrived for the interview on May 6, 2016, the site manager canceled the interview and said they would reschedule so that human resources and an interpreter could be present.
However, Capstone did not contact Harris, the EEOC said. When Harris called using a video relay, the site manager said the human resources department was working to contact an interpreter and that it would take another week or two to schedule an interview.
Physical Exams as a Condition of Employment: Are They Permissible?
Lexology
Q. My Company would like to have all applicants for employment submit to a pre-employment physical examination to ensure that they are fit for the position. Is this allowable?
A. Employers may require an applicant to submit to a pre-employment physical examination, but only after a conditional offer of employment has been made, and even then only under the following conditions:
- All other candidates in the job category must also be required to submit to the physical;
- The candidate’s medical history is kept separate from other employment-related records and is treated confidentially; and
- The results are not used to discriminate against the applicant under the Americans with Disabilities Act (“ADA”) or other discrimination laws.
To ensure that there is no ADA violation, the physical examination should be limited to an assessment of whether the applicant is able to perform the duties of the position, with or without an accommodation. To avoid a claim under the Genetic Information Nondiscrimination Act (“GINA”), the physician should not request information about the applicant’s family medical history.
It would be helpful to provide the physician with a copy of the job description prior to the examination so that the physician is familiar with the responsibilities expected of the position.
Employers will want to tread carefully in making an adverse employment decision based on the results of a physical exam. The applicant’s offer may not be rescinded unless the issue is job-related and consistent with business necessity, or creates a direct threat to health and safety of the applicant or others, and the condition cannot be reasonably accommodated. Moreover, the company could violate discrimination laws if it rescinds an offer based on non-medical information learned as a result of the physical (for example, the applicant’s age, religion, etc.) Likewise, employers could land in hot water if they rescind an offer after learning about an employee’s pregnant condition as the result of the exam.
An Employer's Guide On Service Animals And The ADA
JD Supra
Under the Americans with Disabilities Act (ADA) it is unlawful for an employer to discriminate against a qualified individual on the basis of disability, and this includes not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual. A qualified individual is a person with a disability who can perform the essential functions on the job with or without a reasonable accommodation. A reasonable accommodation includes making existing facilities used by employees readily accessible to individuals with disabilities. If an employee with a disability can perform the essential functions of the job utilizing a reasonable accommodation, they fall within the protections of the ADA.
There are no bright-line limitations on what is reasonable or what is not. What if your employee asks to bring a service animal to the worksite? Must an employer allow dogs or other animals on the premises alongside their employees if an employee claims the animal is needed to assist them in maintaining their employment? Perhaps. Although uncommon, requests for service animals have been litigated, and the courts often allow the issue to proceed through a jury trial, a very expensive process for any employer. Examples include a paraplegic physician utilizing her dog to pull her wheel chair, open and close doors, and retrieve items, and a mechanic with PTSD utilizing a service dog around the shop.
It is important to remember that Title I of the ADA governs employment, while Title II and Title III of the ADA govern places of public accommodation. A reasonable accommodation under Title I is not necessarily limited to a service animal as defined for Titles II & III. If an employee with a disability requests a reasonable accommodation to assist in the performance of his or her job, an employer should engage in a good faith interactive dialogue with the employee about his or her request. Failure to do so is a violation of the ADA. The employer should analyze the job purpose and essential functions, and consult with the employee to ascertain the precise job-related limitations caused by his or her disability and how those limitations would be overcome with a reasonable accommodation, such as the service animal or other alternatives. If the disability or need for the animal is non-obvious, an employer can request reliable documentation verifying the employee’s disability and the relationship of the animal to that disability.
Issues to consider include the nature of the worksite (i.e., office setting versus production facility), the relationship between the animal’s function and the employee’s disability, how well the service animal will improve the employee’s ability to perform his or her job, and the temperament and behavior of the animal. If an employee shows their request is reasonable, the employer is required to provide a reasonable accommodation unless the accommodation would impose an undue hardship on the operation of the business. It is important to keep an open mind and evaluate every request on a case-by-case basis. Although the employee’s preference should always be considered, an employer is not required to grant the specific request simply because it is the employee’s preference. The employer should implement the accommodation that is most appropriate for both the employee and the workplace.
For a refresher on the obligations of a business to accommodate its customers’ needs for services animals, read this article on service animals and the ADA.