News From the Federal Agencies

| News | Docket | Question | Focus | Calendar |

Administration on Community Living (ACL)

Understanding Medicaid Buy-in: A Tool to Advance Employment for People with Disabilities

ACL, the Centers for Medicare & Medicaid Services (CMS), and the Department of Labor’s Office of Disability Employment Policy (ODEP) are releasing a new “question and answer” document to help grantees, stakeholders, and self-advocates better understand the “Medicaid buy-in” program.

Work is about more than a paycheck. It can offer a sense of purpose, community, and belonging. Unfortunately, people with disabilities often face barriers to employment and some even choose to suppress their income to gain or maintain access to critical community services. Medicaid Buy-In is an optional Medicaid eligibility group which allows workers with disabilities with income above traditional limits to access essential Medicaid community-based services.

The Q&A is being released as the country celebrates the 29th anniversary of the Americans with Disabilities Act (ADA) this week and reflects ACL’s ongoing commitment to advance policies and programs that promote and support successful employment outcomes for people with disabilities.

U.S. Equal Employment Opportunity Commission (EEOC)

Registration Is Now Open for EEOC’s Columbus EEO Training Seminar

The Cleveland Field Office of the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing laws against employment discrimination, announced that registration is now open for its one-day EEOC Technical Assistance Program Seminar (TAPS). The seminar will be held on Nov. 13, 2019 at Quest Conference Center in Columbus, Ohio.

EEOC Sues KTF Enterprises and Kirker Enterprises for Disability Discrimination

KTF Enterprises, Inc. and Kirker Enterprises, Inc., which operate a nail polish factory in Newburgh, New York, violated federal law when they denied reasonable accommodations to employees with disabilities, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced.

According to the EEOC’s suit, after acquiring the Newburgh factory in 2015, the companies withheld reasonable accommodations from employees who needed them.

ChenMed, LLC and PMR Virginia Holding, LLC. Pays $200,000 to Settle EEOC Disability Discrimination Lawsuit

ChenMed, LLC and PMR Virginia Holding, LLC, Delaware corporations operating medical centers for seniors, will pay $200,000 and provide other relief to settle a disability discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC), the agency announced. According to the EEOC’s lawsuit, Trudy Jelderks was hired in August 2013 as a market sales manager (MSM) for the Tidewater, VA market. In June 2014, Jelderks was also assigned to cover the Richmond, VA market. Approximately two months later, Jelderks informed her employers she had colon cancer. Shortly after disclosing her diagnosis, she was removed from the Richmond market. Jelderks was then hospitalized due to her colon cancer that October. During her hospitalization, Jelderks was pressured by the chief medical officer (CMO) to voluntarily give up her MSM duties, which she refused to do. Jelderks complained to the human resource office about the CMO’s request during her hospitalization. Approximately one month later, the companies fired Jelderks because of her disability

EEOC Sues American Security Insurance Company for Disability Discrimination

A for-profit insurance company and subsidiary of Assurant, Inc., violated federal disability discrimination law when it terminated an employee because of her diabetes, the U.S. Equal Employment Oppor¬tunity Commission (EEOC) charged in a lawsuit it recently filed. According to the EEOC’s suit, Donna Stephens worked for the company as a senior processing clerk for almost 23 years. As a result of complications with Type II diabetes, Stephens requested an accommodation – to work from home. After Stephens’ accommodation request was granted, her supervisor constantly chastised her for teleworking, criticized her performance without basis, and finally fired her.

EEOC Sues Medtronic for Disability Discrimination

Medtronic, Inc., a Minneapolis-based company that develops and manufactures medical devices, violated federal law when it terminated April Jackson, a temporary employee, from its Greenwood, S.C., facility because of her disability-related absences, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. The EEOC further charged that the company failed to provide a reasonable accommodation to Jackson and refused to directly hire Jackson because of her disability.

EEOC Sues Groendyke Transport / McKenzie Tank Lines for Disability Discrimination

Groendyke Transport, a trucking company formerly known as McKenzie Tank Lines, violated federal law when it applied its inflexible leave policy to fire two long-term employees with disabilities who had exhausted all medical leave, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. According to the EEOC’s suit, the two employees were terminated on July 26, 2017 by McKenzie Tank Lines, now owned by Groendyke Transport.

U.S. Department of Justice (DOJ)

Settlement Agreement between the United States and Divyalakshmi, Inc

A military veteran who suffers from post-traumatic stress disorder, which is a physical impairment that substantially limits one or more major life activities, filed an ADA complaint with the Department of Justice. The veteran uses a service animal to assist her with her disability. Staff at the Wildwood Inn in Florence, Kentucky, unlawfully requested paperwork for the veteran’s service animal and ultimately denied lodging to her and her husband. As part of the settlement, Wildwood Inn agreed to modify its policies, practices or procedures to permit the use of a service animal by a person with a disability.

U.S. Department of Housing and Urban Development (HUD)

HUD Announces $150 Million in Mainstream Housing Voucher Funding

The U.S. Department of Housing and Urban Development (HUD) has announced a notice of funding availability for Mainstream (Section 811) Vouchers. The funding will be awarded to public housing agencies (PHAs) to support vouchers that provide sustained community-based integrated housing opportunities to non-elderly people with disabilities. HUD expects to award $150 million to house approximately 18,000 families.

When reviewing funding applications, HUD will provide additional points for PHAs that target funds to assist non-elderly people with disabilities who:

• Are transitioning out of institutional or other segregated settings
• Are at serious risk of institutionalization
• Are currently experiencing homelessness
• Previously experienced homelessness and currently a client in a permanent supportive housing or rapid rehousing project
• Are at risk of experiencing homelessness.

In addition, points will be awarded for PHAs that formalize partnerships with, and leverage resources from, state Medicaid agencies and various health and human services partner agencies or organizations including community-based disability organizations. Applicants are encouraged to establish formal partnerships with agencies or organizations with a demonstrated capacity to coordinate voluntary services and supports to enable individuals to live independently in the community.

Vouchers must be used to assist non-elderly people with disabilities (ages 18 up to 62) and their families. The eligible household member does not have to be head of the household. Eligibility is determined at the time the voucher is first issued.

The funding announcement comes as ACL and the disability community celebrates the 20th anniversary of the Supreme Court’s landmark Olmstead v L.C. ruling stating that people with disabilities cannot be unnecessarily segregated into institutions and must receive services in the most integrated setting possible. Ensuring that people with disabilities have accessible and affordable housing options is essential to achieving Olmstead’s promise of community living.

Applications are due on Thursday, September 5, 2019.

The Docket

| News | Docket | Question | Focus | Calendar |

Finding No Article III Standing to Sue, 7th Circuit Upholds Dismissal of BlindPlaintiff’s Lawsuit Against Credit Union for Alleged ADA Violation

Finding that a blind plaintiff lacked standing to sue, the Seventh Circuit recently issued an opinion upholding a district court’s dismissal of a lawsuit against a credit union for violating the Americans with Disabilities Act (ADA).

The ADA prohibits discrimination on the basis of disability in places of public accommodation and requires “reasonable modifications” be made to ensure those with a disability can fully and equally enjoy the goods, services, facilities, etc., that are generally available to the public.

The plaintiff, who tests websites for ADA compliance, sued the credit union for injunctive relief because its website did not permit him to access its visual content using a “screen reader” software program. Notably, the credit union was chartered by a state credit union law that limits membership to particularized city and county employees.

In order to meet the injury-in-fact requirement to establish standing a plaintiff must establish that he/she suffered a concrete and particularized injury. Because the plaintiff here sought injunctive relief, he was also required to demonstrate a real and immediate threat of future injury. The court found that neither of the plaintiff’s alleged bases of injury – 1) harm to his dignity and 2) informational harm caused by his inability to access the website – qualified as injuries in fact because, as a legally ineligible, non-union member, he was legally barred from using the credit union’s services.

Here, the court found the plaintiff did not suffer dignitary harm because of the “legal barrier” created by the state credit union law: he was not an employee of the city or county for which the credit union was established to serve. The court thus characterized the plaintiff’s injury as “abstract, amounting to mere indignation” that the credit union’s website did not accommodate his disability. Despite the indignation, the plaintiff’s injury is not particularized enough to affect him individually because, by law, there can be no connection between the plaintiff and the credit union, rendering his position no different from any other member of the public who is also unable to access the credit union’s services.

As to the informational harm alleged, the court found the plaintiff did not claim the credit union withheld information from him. Rather, he alleged that the website’s failure to support his visual reader software was a basis of informational injury and the reason he sought an accommodation from the credit union. The court found that seeking injunctive relief for the software accommodation on the credit union website did not constitute an informational harm for the purposes of establishing injury in fact.

Question

| News | Docket | Question | Focus | Calendar |

Is attendance an essential job function?

Employer’s Good Deed Goes Unpunished-Reliable Attendance Is Essential Function Despite Prior Accommodation of Employee’s Absences

While it’s true that acts of generosity sometimes backfire on those who offer them, the Court’s ruling in Higgins v. Union Pac. R.R. Co., No. 18-1902 (8th Cir. July 24, 2019) shows this is not always the case. In Higgins, the Eighth Circuit affirmed summary judgment for Union Pacific-holding that regular, reliable attendance was an essential function of Higgins’ position despite the fact that Union Pacific accommodated Higgins’ poor attendance for over a decade.

Background

Higgins began working as a locomotive engineer for Union Pacific in 1976. Between 1989 and 1992, he suffered spine injuries while performing his job, which led to chronic back pain. In 1992, Higgins entered into a settlement agreement with Union Pacific in which he released his personal injury claims in exchange for payment and “the right to lay off whenever his back bothered him.”

For over a decade, Higgins had a high number of missed shifts-referred to as lay-offs-due to his chronic back pain. Between 2004 and 2014, Union Pacific sent Higgins multiple letters admonishing him for his poor attendance. Despite these warnings, Higgins’ poor attendance continued.

In 2014, Higgins’ doctor submitted information providing that Higgins’ back condition was the same as it was when he returned to work in the early 1990s and recommended that Union Pacific continue “providing at least 24 hours off between shifts.” In December 2014, Union Pacific determined that Higgins’ restrictions prevented him from performing his essential job functions, and Higgins was not allowed to return to work.

Higgins then sued Union Pacific for disparate treatment and failure to accommodate under the Americans with Disabilities Act (“ADA”).

Eighth Circuit Decision

Affirming summary judgment for Union Pacific, the Eighth Circuit ruled that Higgins’ ADA claims failed because regular attendance was an essential function of the engineer position, and Higgins was unable to perform that essential function with or without a reasonable accommodation.

The Court explained that “regular and reliable attendance is a necessary element of most jobs,” and found ample evidence it was essential in this case, including (1) Union Pacific’s job description for the engineer position that listed reliable attendance as an essential job function; (2) Union Pacific’s attendance policy, which required employees to be available to work their assignment when scheduled; and (3) Union Pacific’s repeated warnings to Higgins that his attendance was unacceptable.

The fact that Union Pacific previously accommodated Higgins’ back problems by allowing him to miss a large percentage of his shifts did not create a material question of fact regarding whether job attendance was an essential function. The Court rejected Higgins’argument that his 1992 settlement agreement, which allowed him to lay off as necessary, superseded Union Pacific’s attendance policy, at least as applied to him. The Court explained the agreement is “best characterized as an agreement to accommodate Higgins’ chronic back pain rather than an admission that job attendance is not an essential function.”

The Court also rejected Higgins’ argument that his proposed accommodations-laying off as necessary and receiving 24 hours of rest between shifts-were reasonable. The fact that Union Pacific previously accommodated Higgins’ back pain by allowing him to miss a large percentage of his shifts did not create a material question of fact as to the reasonableness of these requested accommodations. The Court explained that if an employer “bends over backwards to accommodate a disabled worker,” the employer “must not be punished for its generosity.”

Takeaway

Higgins reinforces the Eighth Circuit’s position that regular, reliable attendance is an essential function of most jobs. This decision illustrates that a job description identifying attendance as essential, an attendance policy, and enforcement of the attendance policy are strong evidence that attendance is an essential function.

While the Court did not “punish” Union Pacific for its prior efforts to accommodate Higgins, employers should tread carefully in such situations because, depending on the circumstances, a pattern of excusing absences could be viewed as evidence that regular attendance is not an essential job function.

In Focus

| News | Docket | Question | Focus | Calendar |

ACL Blog: Celebrating 29 Years of the Americans with Disabilities Act

By Lance Robertson, Assistant Secretary for Aging and Administrator, ACL

July 26, 2019

Twenty nine years ago today, our country took an important step toward affirming the dignity and civil right of people with disabilities when President George H.W. Bush signed the Americans with Disabilities Act (ADA) into law.

Today, an entire generation of people with disabilities has grown up with the protections, rights, and higher expectations offered by the ADA, including many who are now leaders within the disability networks ACL funds. Millions more who have acquired disabilities over the course of their lives have also benefited from the more accessible and inclusive world created by the ADA. Their experiences serve as living proof that with the right services, supports, accommodations, and expectations community living can work for all who seek it. Their experiences have also shown us how much our communities and workplaces can benefit when we include people with diverse abilities and perspectives.

The past 29 years have also taught us that fostering communities where people of all ages and abilities are included requires us to work on many fronts at once. This is why ACL funds such a diverse network of grantees which at any given moment are working to protect rights, conduct rigorous research, develop innovative new technology, reform systems, coordinate services, train self-advocates and family-advocates and much more. It is also why we are so committed to engaging our partners across federal, state, and local government.

One area of particular interest for ACL and our federal partners is promoting competitive integrated employment for people with disabilities. Work is about more than a paycheck. It also is a source of dignity, economic independence, and pride. This is why we are so excited to be leading a first-of-its-kind multi-agency task force for the employment of people with disabilities that will harness each agency’s expertise and resources as part of a coordinated effort to improve employment outcomes for peoples with disabilities.

ACL has also been working with the Centers for Medicare & Medicaid Services and states around the country to promote person-centered thinking and practice and to help states comply with the Home and Community-Based Settings rule. And our partners at the U.S. Department of Justice have been enforcing the Supreme Court’s landmark Olmstead v. L.C. ruling clarifying that under the ADA, people with disabilities cannot be unnecessarily segregated and must receive services in the most integrated setting possible.

Speaking of Olmstead, last month ACL hosted a celebration of the twentieth anniversary of that decision. We heard from many important people that day, but for me the most important voices were those of the people with disabilities who have experienced the ADA’s impact first hand.

These voices included Kayla McKeon, the manager of grassroots advocacy for the National Down Syndrome Society and the first registered lobbyist with Down syndrome; Liz Weintraub, senior advocacy specialist for the Association of University Centers on Disabilities; and Kimberly Tissot, CEO of the Able SC Center for Independent Living. If you haven’t already, I would encourage you to watch the full video of the event.

McKeon told us that living in the community gives her a voice and independence.

“Community living is so crucial in today’s society,” she said. “Being independent lets me work on my life goals such as grocery shopping, going to the bank … finding recipes that allow me to maintain a healthy lifestyle, and making a meal for my family,”

ACL was formed around the belief that all people with disabilities should be able to live where they choose, with the people they choose, and participate fully in their communities. The ADA has helped make this vision of community living possible for McKeon and millions of other Americans of all ages with disabilities.

As we celebrate this progress, we also look forward to the future and knocking down the remaining barriers to community living encountered by Americans with disabilities.

Trainings and Events

| News | Docket | Question | Focus | Calendar |