The Docket
| News | Docket | Question | Focus | Calendar |
When does ADA leave become unreasonable? Courts & EEOC say …
Rachel Mucha December 4, 2017
Many questions spring up for employers when an employee exhausts their FMLA leave but still can’t return to work. Are you required to give them more leave under the ADA? If so, how much additional leave is too much? Can you fire them for needing too much time off? Employers have been faced with these questions a lot recently, and some answers are starting to emerge. This fall, it was the Seventh Circuit that decided (twice) that “a multi-month leave of absence is beyond the scope of a reasonable accommodation under the ADA.” More recently, the Eleventh Circuit came to the same decision.
But … while it may seem like a pro-employer pattern is emerging, additional ADA leave cases are still finding their way into the courtroom. Currently, the EEOC is suing the Blood Bank of Hawaii for firing three employees who were unable to return to work as soon as their FMLA leave ended instead of granting them more leave under the ADA. Is this case different than the others? Should a different outcome be expected? Seventh Circuit decisions
The Seventh Circuit (which covers IN, IL, and WI) ruled in favor of the employers in two separate lawsuits, which had a lot of similarities. In both cases, employees had medical conditions, and after exhausting their FMLA leave, requested more leave as an accommodation under the ADA. The employers denied these requests, stating they were unreasonable, and the court agreed.
Severson v. Heartland Woodcraft came first. Raymond Severson had a back condition that required surgery. After his FMLA leave was exhausted, Severson requested additional time off. Heartland Woodcraft terminated him, but encouraged Severson to reapply once he was better.
Severson took the company to court, claiming his employer failed to give him the accommodation he needed — more leave. Heartland Woodcraft argued that Severson had already been granted six months of leave and it just wasn’t reasonable to give him any more time off. The court ruled that Severson would not have been able to work if he had been granted this additional leave, which is an essential part of an ADA accommodation request. “Medical leave spanning multiple months does not permit the employee to perform the essential functions of his job,” the court said. It also added that long-term medical leave is what the FMLA is for, not the ADA.
The second Seventh Circuit ruling came in Golden v. Indianapolis Housing Agency. Marytza Golden was a police officer who was diagnosed with breast cancer. She exhausted her FMLA leave, and requested additional leave. Exactly how much leave she needed was unclear, but there was the potential that Golden would not return to work for six months. Her employer rejected the request and fired her. Golden sued, claiming the company violated the ADA. The court once again ruled that several months of additional leave was unreasonable — especially since Golden had no clear return date. The court said in order to be protected under the ADA, Golden needed to be able to work with or without an accommodation. Since she was not able to work either way, Golden wasn’t ADA-protected and the employer was within its rights to not grant her additional leave, it ruled. In both of these rulings, the Seventh Circuit made it clear that these long-term leave requests — above and beyond FMLA leave — were not reasonable accommodations. Also, the employees would not be able to do their jobs with these accommodations. “An extended leave of absence does not give a disabled individual the means to work; it excuses their not working,” the court said.
Eleventh circuit ruling
After Billups v. Emerald Coast Utilities Authority, the Seventh Circuit got some backup in deciding additional long-term leave wasn’t a reasonable accommodation.
Roderick Billups hurt his shoulder and took six months of leave, which he was entitled to because he was injured on the job. After exhausting his medical leave, he was still unable to return to work. Billups needed surgery, and as an accommodation under the ADA, requested six additional weeks off to recover. After the recovery time he said he’d be able to work without any limitations, but he was fired. In court, Billups argued that he had a projected return date, therefore his leave request was not open-ended. But the court said that Emerald Coast had already given him six months off, and Billups still was not able to perform his duties.
Not only that, but Billups could not think of any accommodations that would allow him to return to work before the six weeks of recovery time was up. The court said that the ADA prohibits employers from discriminating against “qualified individuals on the basis of disability,” but Billups was no longer qualified because he couldn’t perform the essential functions of his job.
The Eleventh Circuit (which covers AL, GA, and FL) ruled alongside the Seventh Circuit, stating long-term leave beyond FMLA leave isn’t a reasonable ADA accommodation.
That should pretty much settle things and give employers a clear picture of how to deal with the interaction between the ADA and FMLA, right? Not so fast. The EEOC has other ideas.
Still pushing the envelope
With these three rulings paving the way, the EEOC’s case against the Blood Bank of Hawaii might seem repetitive. But it’s clear that the EEOC believes — at least in some cases — that employees are entitled to additional leave once their FMLA leave is exhausted. One could assume this case will play out like its predecessors, but there are a few reasons it could go the other way.
The one key difference in this case is that the blood bank had a very strict maximum leave policy. Once employees’ 12 weeks of FMLA leave were up, they were expected to return to work, free of any limitations, the EEOC says. It claims three employees were not medically cleared to go back to work after their FMLA leave was over, and they were fired. While two of the employees were requesting additional leave as an accommodation, one said she could return to work with an accommodation. The blood bank still fired her, according to the agency’s claim.
The fact that these employees were automatically fired is what’s fueling the EEOC’s case. “Employers have a duty to engage in the interactive process and provide reasonable accommodations to employees with disabilities,” EEOC regional attorney Anna Park said. “Employees should never be terminated simply because they need additional leave for their disabilities.”
The EEOC condemns the blood bank’s rigid leave policy, stating that each employee’s disability is unique, which is why it’s so important that employers work with that individual.
If you have an additional ADA leave case in the Seventh or Eleventh Circuit, the odds of being able to deny additional long-term leave under the ADA appear to be in your favor. If you are located outside of these two circuits, things are still pretty murky, but you could still use these rulings as a blueprint for how to justify denying added leave.
When it comes down to it, the most important thing you can do is engage with the employee making an accommodation request. Just having discussions about possible accommodations — up to and including additional leave — with the employee can go a long way in court, as seen in the Seventh and Eleventh Circuit rulings. Not having the discussion at all, like in the blood bank’s case, can land you in hot water.
Intermittent leave
Where does all of this put intermittent leave? When it comes to handling requests for that, the jury’s still out. The Seventh Circuit did say that intermittent time off (i.e., a few days here and there) may be reasonable — as they’re often equivalent to a modified work schedule and, thus, may be required under the ADA.
In Focus
| News | Docket | Question | Focus | Calendar |
Meetings and Events Technology Alone Can’t Solve Accessibility Challenges – Skift
Sheryll Poe, Skift
Skift Take
People with disabilities are often overlooked by event spaces and meeting planners. A new wave of innovation and technology can help make meetings and events more accessible, but lasting change needs to start with a focus on increasing accessibility during the planning process.
Hospitality professionals are well-versed on the various components that make up a great meeting, conference, or event. These can include a thoughtful keynote speaker, a well thought-out menu, or a one-of-a-kind interactive experience, along with pervasive Wi-Fi access and copious meeting areas. But what about event accessibility and inclusiveness?
There were nearly 40 million Americans living with a disability in 2015, making up 12.6 percent of the total population, according to the U.S. Census Bureau, which defines disability as a spectrum of “limitations of activities and restrictions to full participation at school, at work, at home, or in the community.” These can be hearing or vision difficulty, cognitive difficulty, ambulatory difficulty, self-care, or independent-living difficulty.
People with disabilities are also active members of the workforce with approximately 21 percent employed, according to the Department of Labor Office of Disability Employment Policy.
They often need to participate in offsite meetings and conventions, so meeting and event planners must ensure they are accommodated, said David Dikter, CEO of Assistive Technology Industry Association, an organization representing manufacturers, sellers, and providers of assistive technology for people with disabilities.
“It’s incumbent on the meeting planner to be asking all the right kind of questions about accessibility,” Dikter said. “They need to make sure that a hotel or a convention facility is equipped to deal with their entire customer base, not just a certain customer base.” Hotels, convention centers, and meeting facilities need to make understanding the range of customers they’re serving a bigger focus, as well.
“Hotels and convention centers tend to forget the range of disabilities. They tend to think of mobility, which is important because that’s their physical space, but then there are things like people who are blind,” Dikter continued. “Hotels need motivation from the meeting planning industry, from the people who are organizing their meeting to kind of say, ‘Hey, have you thought about all these other things?’”
Technology can smooth over some of the challenges faced by disabled attendees, but a wider shift in perspective is needed to truly address these issues. “Technology solves aspects of it, but it still doesn’t solve the social challenges,” said Peter Slatin, founder and president of Slatin Group, which consults with businesses about special-needs customers. “People with various disabilities can get to events more easily, can be aware of them, can travel to and from them more independently than ever before. But navigating your way around a hotel if you’re blind or a wheelchair user, or understanding what happens in an event if you are deaf or hard of hearing, [is a separate challenge].”
From Low-Tech to High-Tech
A lot of the solutions for accommodating people with disabilities at an event are decidedly low-tech: ensuring there are ramps and wheelchair-accessible restroom stalls, arranging Braille or large print options, and providing American Sign Language interpreters, Communication Access Realtime Translation, or captioning services.
Technology, however, can only do so much if meeting planners aren’t approaching their job with the awareness of challenges faced by the disabled
“Meeting planners know today that they’ve got to ask how many people are vegan, pescatarian, kosher, or whatever, but don’t generally think about how many people are wheelchair users or blind,” said Slatin. “That, I think, is starting to change…. It’s not really being driven by a group of event planners with disabilities. There isn’t an advocacy group for that, not yet anyway.”
New technologies such as automated image captioning technology, connected home devices, tablets, and wearables are allowing people with disabilities to expand their meeting options. Many of these technologies aren’t created with accessibility in mind, though.
“The unfortunate part is that… companies are not thinking about how they are going to be available to people with all abilities from the onset,” said Thomas Logan, CEO of technology consulting firm Equal Entry. “As a result, new tech very often comes out not being very accessible.”
There have been some recent examples of consumer-facing technologies that incorporate accessibility features, Logan noted, a corporate trend he hopes continues. The Apple Watch for example, had built-in accessibility features from launch including VoiceOver, vibration alerts, an extra-large watch face, and a built-in magnifier for text.
In addition, new technologies involving beacons, Bluetooth, and wayfinding are making it easier for people with disabilities to attend meetings, conferences, and events.
When ATIA puts on its own annual conference, they want to go beyond Americans With Disability Act (ADA) requirements by using new technology to assist disabled attendees.
“How do we get the hotel to add on some features that aren’t just baseline ADA requirements?” Dikter said.
Mobility for Everyone Through Technology
One emerging option is ClickAndGo Wayfinding, which offers products for people with visual disabilities, including tactile maps, low-vision maps, and virtual kiosks. But the company is best-known for its audio navigation directions.
Unlike GPS, which can only provide directions outdoors, ClickAndGo Wayfinding works both indoors and outdoors. ClickAndGo uses beacons to provide guided, audio directions for people with disabilities. The results, which can be delivered online or via a mobile app, can confirm one’s location, identify landmarks, announce potential hazards (such as changes in carpet and flooring materials), and provide useful location-specific orientation cues.
Although beacons are still relatively new in the blind wayfinding experience, ClickAndGo is delivering beacon support to Comcast Corporation, the Washington, D.C. transit system, the NYC Department of Transportation, Columbia University, Swarthmore College, and several other venues.
“If an organization or association is bringing a convention or conference to a hotel, those people coming in are not just the customer of the association, they then become the customer of the hotel and the convention itself,” said Joe Cioffi, ClickAndGo’s CEO. “It’s time that facilities take a bigger step at understanding the range of customers they’re serving, and people with disabilities are part of the range of customers they’re serving.”
Trainings and Events
| News | Docket | Question | Focus | Calendar |
AccessibilityOnline Webinar Series
Accessible Alterations (A Refresher)
January 4, 2018, 1:30-300 CT.
Determining what is required to be accessible when a facility is altered or expanded can be a challenge.This session will review and provide a refresher on how the ADA and ABA Accessibility Standards apply to planned alterations and additions.It will cover what type of work constitutes an “alteration,” how the scope of work determines application, provisions for primary function areas and accessible paths of travel, historic facilities, technical infeasibility and other topics.
Speakers:
Dave Yanchulis Senior Accessibility Specialist/Coordinator of Public Affairs, US Access Board, Office of Technical and Information Services
For more information visit
AccessibilityOnline at http://www.accessibilityonline.org or call (877) 232-1990
Outdoor Developed Areas (A Refresher)
February 1, 2018 1:30-3:00 CT.
Achieving accessibility in outdoor environments has long been a source of inquiry due to challenges and constraints posed by terrain, the degree of development, construction practices and materials, and other factors. In 2013, the Access Board issued new accessibility standards for outdoor developed areas, including trails, beach access routes, picnic and camping areas, on federal sites covered by the Architectural Barriers Act (ABA). The Board also published a guide to assist designers, owners, and operators in the use of these standards. This session will provide an overview of the standards for federal outdoor developed areas, highlighting some of the material in the guide. Participants are encouraged to submit questions in advance.
Speakers:
Bill Botten Accessibility Specialist/Office of Technical and Information Services, US Access Board
