Welcome to the Center's newsletter!
This issue is devided into the following sections:
- News - News From the Federal Agencies
- Docket - Federal court rulings that relate to the ADA
- Question - Peter answers a frequently asked question
- Focus - Focusing in on news you may have missed
- Calendar - Trainings and Events
News From the Federal Agencies
| News | Docket | Question | Focus | Calendar |
U.S. Access Board
This month marks the 50th anniversary of the Architectural Barriers Act (ABA), the first federal law to address accessibility for people with disabilities. Passed unanimously by Congress in 1968, the law requires facilities funded by the federal government to be accessible. The Access Board was created to enforce the ABA, which it continues to do to this day. The Board also issues and maintains accessibility guidelines for facilities covered by the law.
The public is invited to join the Access Board for a celebration of the ABA on September 7 from 1:30 – 3:30 at the Board’s conference space. The event will feature Judith Heumann, Senior Fellow at the Ford Foundation, and other guest speakers, including representatives from federal agencies that issue accessibility standards under the ABA. The Board will also unveil an exhibit on the ABA and the first accessibility standards in the U.S. The event will be streamed live online. A complimentary reception will immediately follow.
Registration is not required. Direct any questions to Dave Yanchulis at yanchulis@access-board.gov or (202) 272-0026 (v), or (202) 272-0027 (TTY).
The U.S. Access Board has released an animation on accessible sales and service counters as part of its online guide to standards issued under the Americans with Disabilities Act (ADA) and the Architectural Barriers Act (ABA). The 12-minute animated film shows how access can be achieved to different types of counters, including sales counters and hotel check-in counters. It also covers access to teller and service windows, queues and waiting lines, check-out aisles, food service lines, self-service shelves, and food and beverage dispensers.
On September 6 the Access Board will hold a public forum on accessibility and assembly areas. The day-long event will focus on accessibility issues related to the design of such facilities, including movie theaters, dinner theaters, performing arts centers, lecture halls, grand stands, stadiums, arenas, and other assembly venues. It will offer an open dialogue to review design challenges and identify potential solutions.
“Our goal is to bring everyone together to find ways of resolving accessibility issues that are unique to different types of assembly spaces,” states Board Executive Director David Capozzi. “The Board will use this information to enhance the technical assistance and training it provides to the public.”
Persons with disabilities, advocacy groups, designers and architects, trade groups, codes organizations, industry, and other interested parties are welcome to attend.
Registration is not required. Additional details, including the agenda, will be posted in coming weeks. This event will be in-person only and will not be streamed online.
U.S. Equal Employment Opportunity Commission (EEOC)
Stanley Black & Decker Inc., a global diversified industrial company, violated federal law when it terminated an employee with cancer who took leave for medical treatment related to her cancer, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit.
According to the suit, an inside sales representative, who started working at Stanley Black & Decker’s Towson facility in March 2016, told her supervisor she had been treated for cancer and would have follow up doctor appointments throughout the year. In October 2016, when she needed further testing that included a biopsy, the employee spoke to the human resources representative about her options. The human resources representative told the inside sale representative that there were no available options since she had not been employed long enough to be eligible for medical leave under the Family Medical Leave Act (FMLA).
Home Depot, the large national home improvement retailer, has agreed to pay a former employee $100,000 and provide other relief to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC).
According to the EEOC, Home Depot failed to provide an emergency break to an employee with irritable bowel syndrome and fibromyalgia at its Peru, Ill., store. Instead of accommodating the employee, Home Depot fired her for allegedly violating company policy by leaving her post unattended.
Custom Fabrication & Engineering, doing business as Midwest Automation Custom Fabrication, Inc., located in Fort Smith, Ark., violated federal law when it refused to allow a long-time employee to return to work following a medical leave of absence, based on a perceived disability, the U.S. Equal Employment Opportunity Commission charged in a lawsuit it filed. The company then fired him because he filed an EEOC charge.
According to the EEOC’s lawsuit, the long-term employee suffered a stroke in October 2016. Following a recuperative period, the company refused to return the employee to work.
Grand Hyatt New York, Inc., which operates a large hotel in New York City, violated federal civil right law by refusing to accommodate an employee with a chronic back impairment, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit. According to the EEOC’s complaint, prolonged standing as a front desk agent aggravated the employee’s back impairment and caused him severe pain.
Citgo Petroleum Corporation violated federal law when it withdrew a job offer from an applicant after discovering he had permanent vision loss in one eye, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed.
Murphy Oil USA, Inc., which operates Murphy USA retail gasoline stores typically located in Walmart parking lots in over 20 states, will pay a former store manager $100,000 to settle a disability discrimination and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced. According to EEOC’s lawsuit, Murphy Oil required a 10-year employee with a serious back impairment to perform duties that violated work restrictions imposed by his treating physician.
U.S. Department of Justice (DOJ)
The Justice Department’s complaint alleges that a veteran was not hired by the Minneapolis Police Department in violation of the Americans with Disabilities Act (ADA) because of his disability of post-traumatic stress disorder. The complaint also alleges that Minneapolis engaged in a pattern or practice of discrimination in violation of Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) by routinely requesting and obtaining genetic information from applicants for police officer positions during the pre-employment examination process. This is the department’s first lawsuit challenging discrimination under Title II of GINA.
Under the agreement, Minneapolis will pay $189,338.89 in damages to the complainant, and will implement policies, practices, and procedures to ensure that it does not discriminate in its hiring practices on the basis of disability, and does not request, require, or unlawfully obtain information in violation of the ADA or GINA. Minneapolis will also train applicable Police Department employees.
The Justice Department reached an agreement under the Americans with Disabilities Act (ADA) with The Pawn Shop and Tax Service, Inc., (The Pawn Shop) in Pensacola, Florida to resolve a complaint under title III of the ADA. The Department’s investigation found that the manager of The Pawn Shop asked a veteran who uses a service dog to leave because the manager mistakenly believed the dog was a pet, not a service dog. Public accommodations must permit Individuals who use service dogs, including veterans with disabilities who use service dogs for disabilities such as post-traumatic stress disorder, anxiety, or mobility disabilities, into their establishments.
The settlement agreement requires The Pawn Shop to adopt and implement a service dog policy consistent with the ADA; provide training on the service dog policy to employees and managers; and post the service dog policy in the Shop and on social media. The Pawn Shop cooperated with the Department throughout the investigation.
The Justice Department reached a Settlement Agreement with Teachers Test Prep., Inc. to resolve allegations that it violated Title III of the Americans with Disabilities Act by not providing its online courses and its one-on-one tutoring sessions in a manner accessible to individuals who are deaf or hard of hearing.
The Docket
| News | Docket | Question | Focus | Calendar |
Aug. 10, 2018
By Lisa Burden
Dive Brief:
- UPS Freight violated federal law with its policy of paying drivers with disabilities 90% of what it pays non-disabled drivers when they temporarily move to non-driving jobs for medical reasons, a federal district court has ruled (EEOC v. UPS Ground Freight, No. 2:17-cv-02453 (D. Kan., July 27, 2018)).
- The U.S. Equal Employment Opportunity Commission sued on behalf of a driver who suffered a minor stroke and sought non-driving work. According to UPS policy and a collective bargaining agreement, drivers assigned to non-driving work for medical reasons were to receive 90% of their pay. Those reassigned for non-medical reasons, including convictions for driving while intoxicated, received 100%.
- The district court judge said the policy and union contract violates the Americans with Disabilities Act (ADA) and issued a permanent injunction preventing the union and employer from adopting contracts that discriminate based on disability.
Dive Insight:The judge said the company’s practice violated the ADA because it limited, segregated or classified drivers because of disability, adversely affecting the opportunities or status of drivers with disabilities. It also used standards, criteria, or methods of administration that had the effect of discrimination on the basis of ability. “Paying employees less because of their disability is discriminatory under any circumstance,” the court said.
In a statement announcing the order, a lawyer for EEOC said that UPS’ argument that it was simply following the terms of its union contract was not a valid defense. According to law firm Arkady Itkin’s blog, this case is a “good example of how various policies and agreements cannot supersede the law.”
Still, a Fair Labor Standards Act provision that, in limited circumstances, allows employers to pay workers with disabilities a subminimum wage remains on the books. Section 14(c) authorizes employers, after receiving a certificate from the U.S. Department of Labor pay workers who have disabilities less than the minimum wage.
Question
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August 6 2018
Article
Seyfarth Synopsis: Is it a service animal or an emotional support animal? Do I have to allow both? How to tell one from the other, and the rules that apply.
We get a lot of questions about service and emotional support animals. It’s obvious that there is a lot of confusion out there. Here is how to tell one from the other, and the rules that apply to both.
Public Accommodations. Under Title III of the federal Americans with Disabilities Act (ADA) and virtually all state laws, a service animal is an animal that has been trained to perform work or tasks for the benefit of a person with a disability. Emotional support animals—also called therapy or comfort animals—have not been trained to perform work or tasks. Instead, they provide a benefit just by being present. Public accommodations (e.g. restaurants, theatres, stores, health care facilities), are allowed to ask only two questions to determine if an animal is a service animal: (1) Do you need the animal because of a disability? and (2) What work or tasks has this animal been trained to perform? The second question is the key: If the person is unable to identify the work or tasks that the animal has been trained to perform, then the animal is not a service animal.
Under the ADA, only a dog or miniature horse (no, we are not joking) can serve as service animals. The ADA requires public accommodations to allow service animals to accompany their owners anywhere the owners can go, although the Department of Justice made clear a few years ago that they can be prohibited from swimming pools (in the water) as well as shopping carts. The ADA provides no protection for emotional support animals in public accommodations. The Department of Justice has a very helpful FAQ about service animals, and the Washington Post recently published a story that is also useful.
When developing policies, public accommodations must comply with both federal and state law, and some states provide greater protections. For example, in some states, any type of animal (not limited to dogs and miniature horses) can be a service animal provided it has been trained to perform work or tasks. Some states may provide protection for emotional support animals as well. Virtually all states protect service animals in training, which are not addressed by the ADA. Thus, public accommodations must tailor their policies to account for state requirements, or adopt a policy that will comport with the broadest of all state laws nationwide.
Housing. The federal Fair Housing Act (FHA) applies to residential facilities and provides protection for emotional support animals in addition to service animals. Thus, property managers, condo associations, co-op boards, and homeowners associations need to keep this in mind when dealing with requests from homeowners and tenants relating to these types of animals. The Department of Housing and Urban Development’s most recent guidance on this topic is here.
Airplanes. The Air Carrier Access Act (ACAA), not the ADA, governs accommodations for people with disabilities on airplanes. The Department of Transportation (DOT) is responsible for enforcing the ACAA rules. Historically, the rules have required accommodations for emotional support animals, but recent abuses of the rules by passengers seeking to bring all manner of animals such as peacocks and pigs onto planes has caused the DOT to revisit this issue in a pending rulemaking.
Compliance Strategy. All businesses should have a written policy concerning service and emotional support animals that takes into account federal law, state law, the nature of the business, and the ability of employees to make decisions about whether an animal should be allowed onto the premises. Having a written policy and training employees on the policy is key to ensuring that they know how to respond when one of these animals shows up on the premises.
In Focus
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Danette Washum
August 09 2018
Service animals can be trained to assist owners with conditions ranging from visual and hearing impairments to PTSD and diabetes. While these animals undoubtedly provide real assistance to their owners, workplace policies aren’t always clearly defined when it comes to accommodating workers with service animals.
Under the Americans with Disabilities Act, a service animal is defined as an animal — most often a dog — that has been individually trained to do work or perform tasks for an individual with a disability. The tasks performed by the animal must be directly related to the person’s disability. For example, a person with epilepsy may have a dog that’s trained to detect the onset of a seizure and help the person stay safe during the seizure. Or someone with posttraumatic stress disorder may have a dog who warns its handler of someone approaching from behind, as not to startle them or trigger an episode.
Contrast this with an emotional support, therapy, comfort or companion animal — animals that provide comfort by being with a person. While they can certainly help the handler feel safe and supported, they aren’t trained to perform a specific job or task and do not qualify as service animals under the ADA.
While the ADA’s employment provisions do define a service animal, it doesn’t provide guidelines for employers to follow when an employee requests to bring a service animal to work. Therefore, a request from an employee to bring a service animal to work can be processed as any other request for reasonable accommodation.
In recent years, more people have started using service animals so employers are starting to see more requests for accommodation. Here are some recommendations for employers.
Check your policies. If you have a no-animals policy in your workplace, the request for a service animal is a request to modify that policy. This should be done on a case-by-case basis and take into consideration other employees who may have a fear of or be allergic to dogs. If you allow other employees to bring animals, you must accommodate the service animal.
Request documentation. As the employer, you have the right under ADA to request documentation or demonstration of the need for the service animal, along with proof that the animal is properly trained. Keep in mind that while the employee’s medical documentation will come from a physician, proof of training likely will not. You can ask for a letter from the animal’s trainer to demonstrate what service it provides and that it will not be disruptive in the workplace environment. If the employee doesn’t have this documentation, suggest a trial period during which the employee brings the service animal to the workplace to demonstrate it is not disruptive.
Inform other employees. Because the ADA has confidentiality rules restricting disclosure of disability and accommodations, you want to be careful how you inform employees there will be a service animal in the workplace. I recommend having an open dialogue with the employee at the time of request about how they prefer to educate their colleagues. Most times, they’ll be more than willing to communicate this directly. Additionally, service animals are working, so the employee will want to educate his or her colleagues not to pet, play with or interfere with the animal’s work. This will assure a smooth transition of the service animal into the workplace and allow it to perform the job it was trained to do.
Make sure the animal is cared for. The employee is responsible for taking care of his or her service animal, including potty breaks, keeping it groomed and free of parasites, and assuring it’s not disruptive in the workplace. I suggest working with the employee at the time of request to identify where the animal will relieve itself, the number of breaks it will require daily, and any feeding schedules. Also set expectations with the employee about picking up and disposing of the animal’s waste. Most workplaces will have an easy-to-access outdoor area with grass, but if you do not, it is probably worth the investment to create a small area for the animal as to minimize time disruptions.
Consider other employees with allergies or phobias of animals. The clear majority of employees will be supportive of having a service animal in the workplace, but you may run into the occasional issue of allergies or a phobia. Once you’ve agreed to accommodate the service animal, there are some basic tips to minimizing allergic or phobic disruption.
- Move employees to different parts of the workplace
- Provide one or both of the employees with an enclosed workspace
- If possible, allow one or both to telecommute
- Install air purifiers at workstations to minimize dander
- Regularly clean carpets
Emotional support animals If you have a no-animals policy, an employee asking to bring an emotional support animal to the workplace is essentially a modification of that policy. The ability to modify often depends on the workplace. A fast food restaurant, dangerous factory floor or emergency room will pose some obvious challenges. But if you can modify the no-animals policy, you should then ask for medical documentation of the disability and need for the animal. Once the need is established, talk to the employee about training of the animal, that it will be under their control at all times, and not cause hardship to other employees. Finally, set up a trial period for the employee to bring in the emotional support animal. If the animal is aggressive or disruptive, you have the right to deny the request.
These tips are meant to provide some guidance, but always check your state regulatory guidelines. As with many HR policies, those related to service animals are changing on a regular basis at a state, and even municipality, level.
A great resource of information on this topic and others related to labor issues is the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP). ODEP sponsors several policy development and technical assistance resources, which can be found here.
Trainings and Events
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Accessible Technology Webinar Series
Online Video Accessibility
September 20th, 2018 1-2:30 CT.
For video to be fully accessible, its audio content must be accessible to people who are unable to hear (solution: captions), its visual content must be accessible to people who are unable to see (solution: audio description), and both audio and visual content must be accessible to people who are deaf/blind or unable to access the video for technical reasons (solution: transcript). The video must also be provided in a media player that is fully accessible to people using keyboard alone or assistive technologies. This webinar will explore each of these issues and their solutions in depth, including tools, services, and strategies for addressing video accessibility needs throughout large organizations, with a particularly focus on video accessibility in higher education.
Speakers:
For more information visit
Accessible Technology at http://www.accessibilityonline.org/ada-tech or call (877) 232-1990
ADA Audio Webinar Series
Opioid Use Disorders and the Americans with Disabilities Act: Eliminating Discriminatory Barriers to Treatment and Recovery
September 25, 2018, 2018 1:00-2:30 CT.
In 2017 the U.S. Department of Health and Human Services (HHS) declared a public health emergency and announced a 5-Point Strategy To Combat the Opioid Crisis. Join us for this session as Attorneys from the U.S. Department of Justice, Office of Civil Rights, and Disability Rights Section discuss issues impacting persons with Opioid disorders and the Americans with Disabilities Act (ADA). The speakers will discuss Justice Department efforts to insure access to treatment and recovery programs.
Speakers:
Stephanie Berger Attorney Advisor, U.S. Department of Justice, Disability Rights Section
Savannah Weston Attorney Advisor, U.S. Department of Justice, Disability Rights Section
For more information visit
ADA Audio at https://www.accessibilityonline.org/ADA-Audio/ or call (877) 232-1990
Section 508 Best Practices Webinar Series
Incorporation of Accessibility into the IT Lifecycle: Identifying the Needs Users with Disabilities, Best Practices, and Agile Development
September 25, 2018, 2018 12:00-1:30 CT.
What does it mean to incorporate accessibility into the IT lifecycle? What is the Agile Development process, and how can agencies deploy it while addressing their agency’s accessibility needs? Attend this webinar presented by Mark Urban, HHS Section 508 Operations Board Co-Chair and CDC Section 508 Coordinator, also serving as the Section 508 technical expert and as a critical partner in the HHS Enterprise IT Lifecycle Process.
Mr. Urban will share how his agency integrates accessibility into the IT lifecycle. Drawing from his experience at the CDC, Mr. Urban will explain how to incorporate accessibility into an agency IT development program that creates, designs, acquires, uses, and deploys IT. This webinar will provide an insider’s assessment of how one agency successfully incorporates accessibility into the engineering and deployment of large systems; meets challenges presented by such products as Agile; and, the tradeoffs with large customizable off the shelf software packages.
Speakers:
Mark D. Urban HHS Program Team Co-Chair and CDC Section 508 Coordinator, CDC
AccessibilityOnline Webinar Series
Accessible Polling Places
October 4, 2018 1:30-3:00 CT.
Voting is a fundamental right for everyone, including citizens with disabilities. This timely webinar will cover access to polling places, from arrival onto the site to the casting of ballots, as required under laws such as the Americans with Disabilities Act (ADA) and the Help America Vote Act (HAVA). Presenters will review design requirements for accessible routes, parking, entrances, and voting equipment to ensure that polling places and the voting process are inclusive of all. This includes the Voluntary Voting Systems Guidelines (VVSG) promulgated by the Election Assistance Commission (EAC). HAVA requires that at least one voting machine in every precinct, all across the nation, be accessible to people who are blind, have low vision, or have limited hand dexterity. This webinar will include discussion and examples of the technologies used by accessible voting machines.
Speakers:
Bruce Bailey Accessibility Specialist/Information Technology Specialist, US Access Board
Paul Beatty Accessibility Specialist, Office of Technical and Information Services, U.S. Access Board
For more information visit
AccessibilityOnline at http://www.accessibilityonline.org or call (877) 232-1990
Accessible Technology Webinar Series
Creating Accessible Documents with Adobe InDesign
November 15th, 2018 1-2:30 CT.
Adobe InDesign is a wonderful tool for producing creative documents; however, InDesign can be challenging when it comes to creating a document that is attractive and accessible. This webinar will take you step by step when it comes to making an accessible document in InDesign. Helpful tips and tools will also be shared along the way to help you create an accessible PDF beginning in InDesign
Speakers:
For more information visit
Accessible Technology at http://www.accessibilityonline.org/ada-tech or call (877) 232-1990
