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
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U.S. Access Board
The Access Board is accepting applications for the position of Executive Director (SES). The vacancy is posted on the USAJobs website:Vacancy Announcement #20-AB-2-SES
Applications are due May 1st, 2020.
For further information, contact the Applicant Call Center at (304) 480-7300 or by email at ACCESSBOARDINQUIRIES@fiscal.treasury.gov
The Access Board is initiating rulemaking to update its accessibility guidelines for rail cars covered by the Americans with Disabilities Act (ADA) and seeks public comment on this effort. As indicated in an Advance Notice of Proposed Rulemaking it published, the Board plans to update provisions in the ADA Accessibility Guidelines for Transportation Vehicles that apply to vehicles used in fixed guideway systems, including rapid, light, commuter, and intercity rail. The Board requests information from the public for its use in developing a proposed rule.
U.S. Department of Education
The Office for Civil Rights (OCR) at the U.S. Department of Education released a webinar on ensuring web accessibility for students with disabilities for schools utilizing online learning during the Coronavirus (COVID-19) outbreak. In addition, OCR published a fact sheet for education leaders on how to protect students’ civil rights as school leaders take steps to keep students safe and secure. These resources will assist education leaders in making distance learning accessible to students with disabilities and in preventing discrimination during this Administration-wide response effort.
Department of Education webinar on ensuring web accessibility for students with disabilities for schools utilizing online learning
Fact Sheet on insuring the Civil Rights of Students with Disabilities (PDF)
U.S. Equal Employment Opportunity Commission (EEOC)
The U.S. Equal Employment Opportunity Commission (EEOC) wants the public to know that the agency is continuing to enforce the nation’s employment non-discrimination laws while ensuring that all of its activities are consistent with public health guidelines.
The EEOC has closed its physical offices to the public and implemented agency-wide expanded telework. But The EEOC’s work continues remotely, across the private and federal sectors, and in its efforts to educate the public about their workplace rights and responsibilities. The EEOC’s private sector litigation continues, in accordance with the rules of the courts where the cases are filed.
The U.S. Equal Employment Opportunity Commission (EEOC) posted a webinar addressing questions arising under any of the Federal Equal Employment Opportunity Laws and the COVID-19 pandemic. The webinar answers questions submitted by the public about how to respond to the COVID-19 pandemic in light of the federal employment nondiscrimination laws the EEOC enforces – including the American’s with Disabilities Act, the Age Discrimination in Employment Act, Title VII, and GINA.
The U.S. Equal Employment Opportunity Commission (EEOC) has issued updated guidance on “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.” It addresses what you should know about the ADA, the Rehabilitation Act, and COVID-19.
Minnesota-based Target Corporation will pay $45,000 and make changes to its hiring and training practices to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced. According to the EEOC’s suit, during hiring for the holiday season at a Target in Antioch, Calif., a deaf applicant submitted his resume on line. Target determined he met the minimum qualifications for various open positions. Target called him twice to schedule an interview and each time the hiring staff hung up without leaving a message, realizing that he is deaf because he used a Video Relay Service (VRS). The applicant returned both calls from Target within minutes of learning through his VRS that he had missed their calls. Even though he called Target four more times, Target never scheduled him for an interview and rejected him for hire, the EEOC said.
Blue Sky Vision, L.L.C., a Delaware-based management services organ¬ization that provides support to eye care providers, violated federal law when it subjected an employee to an unlawful medical inquiry and then fired him because it perceived him to be disabled, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced.
Bloomington, Ind.-based senior living community operator Heart of CarDon, LLC violated federal law by refusing to accommodate a qualified employee with a disability, resulting in her losing her job, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. According to the EEOC’s lawsuit, Heart of CarDon determined that an employee at its Rawlins House facility, in Pendleton, Ind., could no longer perform the essential functions of her certified nursing assistant job after a work injury resulted in lifting restrictions.
Agri-AFC, LLC, a Poplarville, Miss., agriculture retailer, violated federal law when it fired an employee with a pre-existing back condition, the U.S. Equal Employment Oppor¬tunity Commission (EEOC) charged in a lawsuit it announced. According to the EEOC’s lawsuit, the employee worked at Agri-AFC’s Poplarville facility as a driver / warehouse worker. When Agri-AFC’s district manager learned that the employee was taking medication for a back injury he had suffered during military service, Agri-AFC demanded a list of his medications. Less than a week after he provided the list, Agri-AFC fired him and told him the district manager felt he was a liability to the company because of his back injury and feared he would injure himself further.
The U.S. Equal Employment Opportunity Commission (EEOC) and the California Prison Industry Authority (CALPIA) announced the successful conciliation of a charge filed with the agency under the Americans with Disabilities Act (ADA). The EEOC reached a voluntary agreement with the employer through the agency’s conciliation process following its investigative findings. CALPIA has not admitted to any wrongdoing or fault in violation of the statute. Following an investigation by the Fresno EEOC office, the EEOC found that the state agency violated the Americans with Disabilities Act (ADA) by failing to hire the complainant for a permanent full-time position because of his disability or perceived disability.
Interconnect Cable Technology Corporation (ICTC), an electronics manufacturer in Brooksville, Fla., violated federal law by demoting and later discharging an employee after she was hospitalized for a mental illness, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed.
U.S. Department of Housing and Urban Development (HUD)
The U.S. Department of Housing and Urban Development (HUD) announced the publication of guidance clarifying how housing providers can comply with the Fair Housing Act when assessing a person’s request to have an animal in housing to provide assistance because of a disability. The Fair Housing Act prohibits discrimination in housing against individuals who have disabilities that affect a major life activity. The Act requires housing providers to permit a change or exception to a rule, policy, practice, or service that may be necessary to provide people with disabilities that affect a major life activity an equal opportunity to use and enjoy their home. In most circumstances, a refusal to make such a change or exception, known as a reasonable accommodation, is unlawful. A common reasonable accommodation is an exception to a no pet policy.
U.S. Department of Justice (DOJ)
The Justice Department announced a settlement agreement with the Walgreen Company (Walgreens), a national retail store and pharmacy chain. The settlement agreement resolves a complaint under the Americans with Disabilities Act (ADA) that alleges that at a Las Vegas, Nevada, pharmacy Walgreens refused to give a customer an influenza vaccination (flu shot) because he has a human immunodeficiency virus (HIV) diagnosis. Under the agreement, Walgreens will ensure its annual immunization policy training of pharmacists covers nondiscrimination and the importance of a flu shot for individuals living with HIV. In addition, Walgreens will pay $24,000 in damages to the complainant and a $15,000 civil penalty.
The Justice Department entered into two settlement agreements today to resolve allegations that two child care providers violated the Americans with Disabilities Act (ADA) by failing to reasonably modify its program to accommodate the needs of young children with Type 1 diabetes and disenrolling them on the basis of their disabilities.
These agreements protect and advance equal access for children with Types 1 diabetes and their parents or guardians. One agreement is with Lil’ Einstein’s Learning Academy (LELA), which operates child care facilities in Bear and Newark, Delaware and Chesapeake City and Elkton, Maryland. The second agreement is with the Community First School Corp. (CFS), which operates a child care facility in Sunnyvale, California. These settlements resolve allegations that two child care centers discriminated against children and their parents on the basis of their children’s disabilities shortly after each child was diagnosed with Type 1 diabetes.
The Department of Justice entered into a settlement agreement that resolved an allegation that an Illinois tattoo parlor denied tattoo services to a customer with HIV. The agreement includes the adoption of a non-discrimination policy, annual training of staff, review by the Department of any relevant policies or procedures, written notification of future complaints, and $10,000 in compensatory damages for the individual.
The Justice Department filed a lawsuit against the Caroline County, Virginia Commissioner of the Revenue alleging disability discrimination in violation of the Americans with Disabilities Act (ADA). The lawsuit alleges that the Commissioner of the Revenue failed to provide a long-time employee with a disability with reasonable accommodations she needed to perform her job, then fired her based on her disability. The employee has a respiratory impairment that causes shortness of breath and hoarseness.
The Justice Department entered into a settlement agreement with Tufts Medical Center under Title III of the Americans with Disabilities Act to improve physical access to Tufts’ facilities for individuals with disabilities and improve effective communication for patients and companions who are deaf and hard of hearing. Under the three-year agreement, Tufts will take remedial actions to remove barriers at Public and Common use areas, provide one or more accessible patients rooms on every medical service, and improve the hospital’s policies, practices and procedures for ensuring effective communication with patients and companions who are deaf or hard of hearing.
The Docket
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Accommodation Of Unpredictable And Unplanned Absences
by Emily A. McNee and Peter Petesch
Although much of the U.S. workforce is increasingly teleworking in the midst of the Covid-19 pandemic, when employers return to business as usual, handling employee absences and leaves will continue to be a challenging issue. Regardless of setting, reliability almost always matters. In recent years, the EEOC has scrutinized and challenged employers’ leave and attendance policies, and ADA issues continue to be an enforcement priority for the agency.
Many employers implement “no fault” attendance policies to manage attendance in the workplace. Under these policies, employees receive “points” or “occurrences” for absences, and employment is terminated after employees exceed the maximum allotted absences, regardless of the reason for the absence. Employers must be cautious, however, to consider exceptions that may be warranted under the ADA, the FMLA, or other state and local law. The EEOC takes the position that such policies violate the ADA, and has repeatedly challenged these policies by bringing charges of discrimination and lawsuits against employers.
This month, an employer prevailed on summary judgment over claims brought by the EEOC alleging that the company violated the ADA after terminating the employment of an individual with too many absences under the company’s no-fault attendance policy. The “absence” of a compelling argument in favor of accommodating this employee’s unreliability doomed the EEOC’s case.
EEOC v. Austal: Factual Background
In EEOC v. Austal USA, LLC,1 the charging party employee began working for the company in 2007 in a logistics position. The position required him to inspect inventory and deliver materials – all work necessitating physical presence at the facility. The employee was diagnosed with diabetes, and his condition caused him to miss work on an unpredictable and intermittent basis.
Under the company’s attendance policy, employees who had eight “occurrences” in a rolling 12-month period were terminated from employment. The policy also contained a progressive discipline system: a verbal warning (four occurrences), written warning (six occurrences), and final warning (seven occurrences). The policy also provided that an employee could use up to five doctors’ notes to excuse absences due to personal illness, and those absences would not count as occurrences under the policy. The company also did not count absences covered under the Family and Medical Leave Act (FMLA).
The employee’s job ended after he had exhausted FMLA leave and paid time off (pursuant to company policy), and then exceeded the number of absences he was allotted under the attendance policy.
The Court’s Ruling: Employer Prevails
The EEOC sued on the former employee’s behalf, and the company moved for summary judgment. In that motion, the company argued that the employee was no longer a qualified individual with a disability because he could not perform the essential job function of attending work regularly. It was undisputed that the employee had to be at work to perform his job; the court therefore agreed that attendance was an essential function of the position.
In response, the EEOC contended that the company should have provided additional medical leave to the employee as a reasonable accommodation. The court rejected this argument, explaining that additional leave would not resolve the issue. The employee’s absences were unpredictable in nature, and he could not follow any work schedule on a regular basis. For that reason, modifying his hours or reducing them would not be effective in allowing him to perform the essential functions of the job. In addition, the employee’s unpredictable absences were likely to be permanent. If he had been capable of returning to work on a regular basis after a definite amount of time, a different result may have occurred. Accordingly, the court granted summary judgment for the employer.
Takeaways for Employers
Do rulings of this nature mean that employers need not worry about challenges to their attendance policies?
No.
Although there is a trend in courts favoring employers in cases involving no-fault or points-based attendance policies, and pushing back against the concept of “indefinite” or unpredictable leave as an accommodation, the EEOC (and private plaintiffs) will continue to challenge these policies in discrimination charges and, potentially, litigation. Rulings of this nature have not stopped the EEOC from moving forward and finding cause against employers or filing new lawsuits. The Commission has persevered even in the face of this recent loss. While employers have prevailed in obtaining dismissal in some of these cases, other lawsuits have resulted in consent decrees with affirmative requirements and/or financial settlement.
A no-fault attendance policy can simplify attendance discipline, but it carries some risk for employers when it comes to absences that arguably may be protected by the ADA, FMLA, and/or state and local law. This remains an issue where individualized assessment is required to determine if a modification to a no-fault attendance policy would be a reasonable accommodation before discipline is assessed. Employers should closely review their policies and the actual implementation of those policies to ensure compliance with current legal obligations, and should review discipline terminations under these policies on a case-by-case basis – paying special attention to the question of how much unreliability is too much unreliability. It will vary based on the job requirements, the individual’s attendance record and prognosis for improving reliability, and the possibility of alternative accommodations.
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Question
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David Raizman
Ogletree Deakins
While many traditional places of public accommodation, such as theaters, stadiums, restaurants, amusement parks, and retail stores, have shut down their operations in response to “shelter in place” and “social distancing” orders issued to prevent the spread of COVID-19, many businesses deemed “essential” by government orders or otherwise continuing operations have adopted sound safety rules designed to keep their employees safe.
For the most part, these safety rules are both recommended and lawful, but they are subject to obligations under Title III of the Americans with Disabilities Act (ADA) (42 U.S.C. § 12182(b)(2)(A)(ii) & (iii)) to provide “reasonable modifications” of policies, practices and procedures, or “auxiliary aids and services,” where necessary to provide equal access to persons with disabilities against the regulatory right to implement neutral policies where it would be a “direct threat” to health or safety to modify the practice. In other words, neutral rules must still be weighed against these ADA obligations.
Below are answers to some frequently asked questions (FAQs) that businesses have been asking.
FAQs for Businesses’ Treatment of Customers During COVID-19 Pandemic
Q1: What laws govern how a business treats its customer during the pandemic?
A1: In addition to any federal, state, or local orders, such as the many “shelter in place” or lockdown orders, businesses should be mindful of their obligations under the ADA and Title II of the Civil Rights Act of 1964, which prohibit discrimination in places of public accommodation, and analogous state and local laws that prohibit discrimination based on gender, religion, ethnicity, sexual orientation, disability, or other protected statuses by private businesses open to the public.
Q2: Can a business screen customers for symptoms of COVID-19 and exclude those with such symptoms?
A2: Unfortunately, because there is no precedent for this situation or anything like it, the answer is far from clear. For the reasons explained briefly below, we think that screening for COVID-19 symptoms, or excluding those with such symptoms, is potentially problematic and could expose a business to a claim of discrimination. Section 202(b)(2)(A)(i) (42 U.S.C. § 12182(b)(2)(A)(i)) of the ADA precludes a place of public accommodation from using “eligibility criteria” to determine entry to that place, or participation in its services or activities, unless the public accommodation can establish that it is “necessary” to the conduct of the services or activities of that business. In addition, under Section 208 the ADA regulations (28 C.F.R. § 36.208), a public accommodation can take actions that would otherwise be discriminatory if there is a “direct threat” to the health or safety of others.
One may initially think that the various declarations of emergencies by various government bodies and the Centers for Disease Control and Prevention (CDC) would be sufficient to declare it “necessary” to protect employees and other customers, or, alternatively, that permitting someone with COVID-19 symptoms to enter and participate in a business’s services and activities would present a “direct threat” to others sufficient to warrant protective action. In fact, the Equal Employment Opportunity Commission (EEOC), which has no jurisdiction over the relationships between businesses and their customers, has declared COVID-19 to be a “direct threat” under Section 1630.15(b)(2) (29 C.F.R. § 1630.15(b)(2)), a nearly identical provision in the regulations under Title I of the ADA
Nonetheless, screening for symptoms would probably fail to meet these legal standards because screening for any particular symptom (such as checking for high temperatures, the most commonly suggested screening mechanism) would still permit many asymptomatic individuals with COVID-19, or those merely carrying the virus, to enter and present the same risk to employees and other customers. In other words, the protective measures would not be considered “necessary” because they would not effectively meet the threat.
Q3: Can a customer be excluded if he or she self-identifies as having the COVID-19 virus?
A3: Although there is no clear precedent at this time, in a circumstance where a customer has self-identified as having the COVID-19 virus, yes, he or she may likely be excluded from the business as presenting a “direct threat” to the health or safety of others. The decision would likely turn on whether the threat present could somehow be mitigated by preventive measures taken either by the business or the customer.
Q4: Can a business exclude or remove someone from the premises who is coughing, sneezing, or exhibiting other activity associated with spreading a virus?
A4: A business can certainly insist on customers maintaining safe and reasonable conduct while using the business. During this pandemic and in light of CDC and other agency pronouncements, certain conduct, such as coughing into one’s elbow, or coughing or sneezing into a tissue can be made compulsory. If the observed activity involves uncontrolled coughing or sneezing, or the customer is unwilling or unable to abide by reasonable safety rules while using the business, the customer can be removed from the business. As in all such actions, it is likely safer if the business provides advance notice to take steps to exclude a customer after a warning has been issued, but one could imagine that observation of uncontrolled sneezing or coughing may merit immediate exclusion.
Q5: Must a business modify its neutral safety policies to accommodate customers with disabilities, such as a “contactless delivery” policy, or other practices designed to keep its employees safe from contracting the virus?
A5: Like so many questions in these times, there is no clear answer to this question, but certain reasonable and justified neutral policies may nonetheless result in denied service to the disabled population, such as a policy to cease deliveries of goods to individuals whose disabilities make it impossible to travel, or a policy for delivery personnel not to accept credit card, cash, or food stamp payments transactions that would require close contact between employee and customer. The answer requires us to weigh or reconcile the competing statutory obligation to provide “reasonable modifications” to policies, practices and procedures, or “auxiliary aids and services,” where necessary to provide equal access to persons with disabilities against the regulatory right to implement neutral policies where it would be a “direct threat” to health or safety to modify the practice.
Given that the EEOC has recognized that COVID-19 presents a “direct threat” to health or safety, a business need not modify its neutral safety policies that protect workers unless reasonable measures could be taken to mitigate the threat. So, using the examples provided above, if a business could take credit card or food stamp information through glass that does not require unprotected contact with the customer, it should consider that possibility. Or, if a customer who uses a wheelchair and typically has a delivery handed to her cannot pick up a food or other delivery that is left on the ground, the business can work with the customer to see if the delivered items can be placed on a folding chair, or an end table, that is within the recognized vertical reach range of 15 inches to 48 inches above the floor or ground. In general, businesses can exercise their creativity and engage the customer with a disability in an interactive process to see if the competing concerns can be reconciled. If not, a “safety first” policy will likely win out, but at the very least the customer should feel heard and also understand that the business was looking for a way to accommodate the disabled customer.
Q6: What other measures may a business take to protect its employees and customers from other customers who may spread the virus?
A6: Businesses have imposed a variety of methods and rules to promote “social distancing” and other CDC-recommended behaviors, including: restricting entry to the business so that the overall capacity permits customers to engage in appropriate distancing (six feet apart) while using the business; policing queue lines at check-out and for entry into the business so that customers are safely using the queue with appropriate distancing; requiring customers who bring their own bags to handle and bag their own merchandise; and eliminating self-serve options.
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In Focus
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Coronavirus (COVID-19)
The Great Lakes ADA Center is working to provide updated information regarding Coronavirus (COVID-19) and persons with disabilities. As new information becomes available the Center’s web site is being updated. National resources as well as regional resources for the six states (IL, IN, MI, MN, OH & WI) served by the Center have been created. Links to these pages are provided below here along with information on topics on which the Center has been receiving the most questions regarding persons with disabilities.
For additional information contact the Great Lakes Center by calling (800) 949-4232.
Employement
Employement
Education
Trainings and Events
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Audio Conference Series
Accessible Parking, What Does that Mean?
Tuesday, April 21, 2020 1:00 PM – 2:30 PM Central Time
Accessible parking continues to be an area of confusion for people with disabilities and businesses. How many spaces must be accessible? Where should the accessible spaces be located? Who qualifies to park in accessible spaces? Who enforces parking laws? Join this session as we explore the complex issues of location, type, size, number and how all of this is enforced. The session will include the requirements for accessible parking in the 2010 ADA standards for accessible design. Participants will have an opportunity to ask questions of our speaker.
Speaker:
For more information visit
ADA Audio at https://www.accessibilityonline.org/ADA-Audio/ or call (877) 232-1990
ADA Legal Webinar Series
Food Service Providers and the ADA
Wednesday, May 20, 2020 1:00 PM – 2:30 PM Central Time
As the ADA reaches its 30th year prohibiting discrimination on the basis of disability in the business sector, we are witnessing a dramatic nationwide increase of ADA lawsuits brought against restaurants and other food and beverage providers. The ADA Centers are here to help. Join us on a webinar in our legal series as we address major ADA issues affecting food service providers. We will highlight key ADA obligations, review major court decisions, and introduce a new comprehensive technical assistance publication that addresses just about every issue that food service providers face in regard to ADA compliance. Diego Demaya, JD, Legal specialist with the Southwest ADA Center will review major issues and entertain your related questions.
Speaker:
For more information visit
ADA Legal at https://www.accessibilityonline.org/ADA-Audio/ or call (877) 232-1990
