News From the Federal Agencies

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U.S. Access Board

Access Board Issues Guidance on Toilet and Bathing Facilities and Drinking Fountains

The Access Board has released technical bulletins on accessibility to restrooms, bathing facilities, and drinking fountains. This material explains specifications for water closets, toilet compartments, showers, bathtubs, and drinking fountains in the ADA and ABA Accessibility Standards.

U.S. Equal Employment Opportunity Commission (EEOC)

FedEx Ground to Pay $3.3 Million to Settle EEOC Disability Discrimination Lawsuit

The U.S. Equal Employment Opportunity Commission (EEOC) charged that FedEx Ground denied deaf and hard-of-hearing package handlers reasonable accommodations and that it discriminated against deaf and hard-of-hearing applicants for the package handler position.

Acme Markets to Pay $60,000 to Resolve EEOC Disability Discrimination Charge

The U.S. Equal Employment Opportunity Commission (EEOC) found reasonable cause to believe that ACME Markets failed to provide a reasonable accommodation for the disability of a former employee at its Denver, Pa., facility. ACME Markets will pay monetary relief to the employee and revise its reasonable accommodation policies.

Wayne Farms to Pay $175,000 to Settle EEOC Lawsuit for Disability Discrimination

In its suit, the U.S. Equal Employment Opportunity Commission (EEOC) charged that Wayne Farms violated the rights of a class of workers with disabilities at its Decatur, AL., facilities by maintaining an attendance policy that capped the number of allowable absences regardless of whether the absence was due to a disability.

Spencer Gifts LLC to Pay $90,000 to Settle EEOC Disability Discrimination Suit

Spencer Gifts LLC company failed to Accommodate and Fired Employee Due to Disability, a Delaware corporation that operates novelty gift stores throughout the United States and Canada, will pay $90,000 and furnish other relief to settle a disability discrimination suit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced.

Rogers Memorial Hospital Settles EEOC Disability Discrimination Case

Following an investigation, the U.S. Equal Employment Opportunity Commission (EEOC) had found reasonable cause to believe that Rogers Memorial Hospital, Inc., discriminated against an employee because of her disability in violation of the Americans with Disabilities Act. Specifically, the EEOC determined that Rogers violated the ADA when it terminated an employee based on her disability after failing to provide her with a reasonable accommodation.

Horizontal Well Drillers to Pay $650,000 to Settle EEOC Age And Disability Discrimination Suit

Oklahoma Drilling Contractor refused to hire older rig hands and fired employee because of disability after conducting an unlawful Medical Exam. According to the U.S. Equal Employment Opportunity Commission’s lawsuit. Horizontal Well Drillers LLC (HWD) hired Wilbert Glover as a rig hand before forcing him to undergo an unlawful medical exam and then fired him based on health information it obtained from the exam. The agency also alleged HWD rejected rig hand applicants who were older than 40 because of their age.

Enlivant / Assisted Living Concepts to Pay $66,000 to Settle EEOC Disability Accommodation Suit

Assisted Living Concepts, LLC, doing business as Enlivant, a national owner and operator of senior living facilities, have agreed to pay a former chef $66,000 and is making significant changes to its human resources programs to enhance compliance with the Americans with Disabilities Act (ADA). These terms are part of a settlement of a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).

American Security Insurance Company Will Pay $49,000 to Settle EEOC Disability Discrimination Suit

Insurance company unlawfully fired a longtime employee based on her Diabetes. According to the EEOC’s lawsuit, Donna Stephens worked for the company as a senior processing clerk. As a result of complications with Type 2 diabetes, Stephens requested permission to work from home as an accommodation. Despite granting Stephens’s accommodation request, however, Stephens’s supervisor constantly chastised her for teleworking, criticized her performance without basis, and ultimately fired her.

Army Sustainment, LLC Sued by EEOC for Disability

Army Sustainment, LLC violated federal law when it required employees to discontinue taking medications prescribed by their physicians to treat their disabilities as a condition of maintaining their employment, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit.

Former Convenience Store Owner to Pay $160,000 to Resolve Disability Discrimination Suit

The U.S. Equal Employment Opportunity Commission (EEOC) charged Brown-Thompson General Partnership with Firing Employees with Disabilities. According to the EEOC’s lawsuit, Brown-Thompson General Partnership fired a warehouse worker and eight other employees with medical conditions who needed reasonable accommodations, including modified duty or an exception to the company’s practice of terminating employees who missed more than three days of work and didn’t qualify for other company leave.

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

HUD Allocates more than $75 Million in fourth Wave of Care Act funding to Assist People Living With Disabilities

Provided through the U.S. Department of Housing and Urban Development’s (HUD) Section 811 Mainstream Housing Choice Voucher Program, this wave of relief funds will provide affordable housing to non-elderly people living with disabilities.

U.S. Department of Justice (DOJ)

Settlement Agreement Between the U.S. Department of Justice and Legacy Tours, LLC

A complaint filed with the United States Department of Justice against Legacy Tours alleging disability discrimination was resolved through a settlement. The parties agree that it is in their best interests, and the United States believes that it is in the public interest, to resolve this dispute without engaging in litigation.

Settlement Agreement between the United States of America and Save the Bay

This matter is based upon a complaint filed with the United States Attorney for the District of Rhode Island, alleging that Save The Bay discriminated against an individual with a disability in violation of Title III of the Americans with Disabilities Act (“ADA”). The Complainant alleged that Save The Bay denied her child the opportunity to participate in a summer camp program on the basis of his Type 1 Diabetes.

Colorado Rush Soccer Club to pay $11,000 to family of deaf player for violating ADA

Colorado Rush has agreed to pay $11,000 in compensatory damages to the family of a deaf soccer player whose family said the soccer club failed to provide proper accommodation for his disability.

Settlement Agreement Between The United States of America and The City of San Clemente, California

The City of San Clemente has entered into a settlement agreement with the United States to ensure that individuals with disabilities have equal access to its transportation program, the Department of Justice announced.

The Department of Justice Reaches Settlement With Lackawanna County Over Polling Place Access For Voters

The Justice Department announced a settlement with Lackawanna County under Title II of the Americans with Disabilities Act to improve physical accessibility at the county’s polling places for individuals who use wheelchairs and other mobility aids, and for individuals who are blind or have vision impairments.

U.S. Department of Transportation (DOT)

U.S. Department of Transportation Seeks Innovators for Inclusive Design Challenge

The U.S. Department of Transportation (DOT) opened Stage I of the Inclusive Design Challenge, a national prize competition seeking design solutions to make future Automated Vehicles (AVs) more accessible to people with disabilities.

The Docket

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Employee’s ‘unabated absenteeism’ ruled out ADA protection

Dive Brief:

• An employee’s “unabated absenteeism” rendered her unqualified for her job and Americans with Disabilities Act (ADA) protections, the 7th U.S. Circuit Court of Appeals ruled (Moens v. City of Chicago, No. 19-1913 (7th Cir. May 19, 2020)).

• The city of Chicago granted Elizabeth Moens schedule adjustments to accommodate impairments, but she continued to miss work, according to court documents; Moens was absent 50 times in one year. She was suspended twice and eventually fired. She sued, alleging, among other things, that the employer failed to accommodate her, in violation of the ADA. The employer argued that Moens’ absenteeism rendered her unqualified for her job — a prerequisite for ADA coverage. A federal district court agreed, noting that an employee whose disability prevents her from coming to work regularly cannot perform the essential functions of her job.

• On appeal, the 7th Circuit agreed, stating that “[a]fter the City offered Moens numerous accommodations — including extended leave, a shortened workday, and delayed start times — she still missed work hours over 50 times in her last year at the City. With that record of unabated absenteeism, a reasonable jury could not conclude that Moens was a qualified individual with a disability.”

Dive Insight:

The ADA protects applicants and workers with disabilities who, “with or without reasonable accommodation, can perform the essential functions” of the job, the Moens court noted. While the ADA requires that employers accommodate workers with disabilities, essential functions don’t have to be removed.

The question of whether in-person attendance is an essential function of a job can differ depending on the job and many courts have answered this question in fact-specific ways. The 9th Circuit held that regular attendance can be an essential function for supervisors. The 8th Circuit decided that a worker at an Iowa meat and processing facility who was absent 195 days was not qualified for ADA protection. And the 6th Circuit ruled last year that an employee who was absent nearly 60% of the time was unqualified under ADA and that allowing her to arrive late or leave early would not have “come close to solving her attendance problem.”

Of course, full-time attendance isn’t always required; the 6th Circuit ruled that full-time presence might not be essential for an HR generalist, for example.

Courts often examine job descriptions to determine the essential functions of a job, if they are up-to-date and accurately reflect an employee’s duties. According to guidance from the U.S. Equal Employment Opportunity Commission (EEOC), “a written job description prepared before advertising or interviewing for a job will be considered by EEOC as evidence of essential functions.”

Because courts often rely on employer determinations of essential functions, written, up-to-date job descriptions that spell out what is essential and what is not essential can be important in litigation. Experts recommend that HR conduct job description reviews at the same time as annual performance reviews and have employees sign off on them at that time.

© 2020 Industry Dive.

Question

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Q. May a business deny someone entry into their facility for failing to wear a facial covering?

Several weeks ago, we blogged about mask objectors presenting businesses with documents bearing the U.S. Department of Justice seal stating that they are not required to wear masks because of their disability. Last week, the DOJ issued a statement that “[t]he Department of Justice has been made aware of postings or flyers on the internet regarding the Americans with Disabilities Act (ADA) and the use of face masks due to the COVID-19 pandemic, many of which include the Department of Justice’s seal. These postings were not issued by the Department and are not endorsed by the Department.” This statement makes clear that the DOJ has not taken a position on whether businesses can lawfully deny entry to people who refuse to wear masks because of a claimed disability, but provides no guidance to business presented with this thorny issue.

To further complicate matters, jurisdictions such as New York City, Virginia, and Pennsylvania that have issued executive orders mandating the wearing of masks in public all differ slightly on how businesses should respond to people who cannot wear masks because of a disability or medical condition.

The New York City guidance suggests that a business may be able to exclude people who refuse to wear masks because of a medical condition or disability as long as the business offers alternatives to access the business’ goods and services. The NYC guidance states:

Where a customer declines to wear a face covering due to a medical condition or disability, you cannot require the individual to provide medical documentation verifying the health issue. In addition, you must discuss with the individual whether there is a way you can provide a reasonable accommodation that will not cause you an undue hardship. You should try to provide alternative arrangements that are workable for your store, your staff, and your other customers. These arrangements will vary considerably based on each store’s ability to make accommodations without creating a hardship on the business.

Depending on the staffing and layout of the retail store, some examples of accommodations that may be reasonable and not cause undue hardship to you are:

1. Have an employee bring the individual the items they want to buy and allow the individual to pay for them at the front of the store.

2. Have the individual leave a list of items with the store and then deliver the items to their home.

3. Inform the individual that they may order by telephone or online and have items delivered to their home.

4. Suggest that the individual have a friend or family member do their shopping.

The Pennsylvania guidance, on the other hand, says “individuals who cannot wear a mask due to a medical condition (including children under the age of 2 years per CDC guidance) may enter the premises and are not required to provide documentation of such medical condition.”

The Virginia guidance takes an approach similar to Pennsylvania, stating:

Nothing in this Order shall require the use of a face covering by any person for whom doing so would be contrary to his or her health or safety because of a medical condition. Any person who declines to wear a face covering because of a medical condition shall not be required to produce or carry medical documentation verifying the stated condition nor shall the person be required to identify the precise underlying medical condition.

All of these orders prohibit a business from asking a customer about his or her medical condition or disability once the customer has informed the business of the existence of the condition or disability that prevents them from wearing a mask. The orders differ as on whether a business can lawfully exclude such individuals from the premises.

The fact that a jurisdiction exempts individuals with disabilities and/or medical conditions from its mask mandate does not necessarily mean that private businesses cannot impose more stringent mask requirements to protect their employees and customers. However, such requirements may be challenged as unlawful under Title III of the ADA. In fact, just last week, nine such lawsuits were filed in federal court claiming a retailer’s mask policy violated the ADA. A business defending such a challenge would have to show that requiring masks to be worn by all individuals inside a facility is a legitimate safety requirement, and that making an exception for people with claimed disabilities is not a reasonable modification of the policy. While it is difficult to predict how courts will rule on this novel issue, businesses can better position themselves for such a challenge by documenting the reasons for the policy at the time the business enacts the policy (e.g., governmental mandate, CDC guidance, etc.), as well as the business’ inability to modify the policy (including all possibilities for modifications considered), put in place alternative measures for providing goods and services to businesses that do not require entry into a facility, and train employees on the existence and appropriate communication of those alternatives.

Of course, businesses could avoid this litigation risk by allowing people claiming a disability or medical condition to enter their premises without a mask, although this heightens the risk of COVID-19 exposure for employees and customers and other potential liability outside of Title III of the ADA. A rock and a hard place indeed.

Copyright © 2020 JD Supra, LL

In Focus

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Minimizing Employer Liability in Remote Workplaces

Almost overnight, the COVID-19 epidemic made remote work commonplace in many occupations across the country. While it has been challenging and stressful at times, employers have been surprised to see that the work is getting done, often sooner and at less expense.

Nationwide, an insurance and financial services company with more than 27,000 employees, embraced remote-work arrangements before the COVID-19 epidemic struck. Today the Ohio-based company is accelerating its push for remote work, announcing plans to transition from 20 office buildings to just four. According to CEO Kirt Walker, Nationwide will realize substantial cost savings while retaining effective management over its workforce as a result.

Tech giants Google and Facebook both recently announced that most of their workforce will be allowed to work remotely through the end of 2020.

Within the legal profession, the necessity of serving clients—online and outside the office—during weeks of government-imposed social distancing measures has proven that remote lawyering is more feasible than once believed. Attorneys who have participated in remote court hearings and remote depositions, argued in front of the Supreme Court of the United States, conferred with clients via Zoom conferences, closed deals, managed office staff, and taken on new clients entirely online have a new appreciation of the ability of technology to transform the profession.

It’s a fair bet that the newly interconnected legal system will not return to its old ways when the COVID-19 epidemic passes.

Finally, many employees are understandably reticent to return to commuting on public transportation and working in crowded metropolitan office buildings. If remote work is possible, they may insist upon it, thereby creating talent management challenges for law firms and other white-collar employers.

For many businesses, the transition to remote work materially impacts key aspects of the employer-employee relationship that could, if not handled wisely, create legal liability for the employer.

Copyright © 2020 JD Supra, LL

Trainings and Events

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