News From the Federal Agencies
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Letter from the U.S. Department of Education: Accommodations to ensure safe in-person learning for students with disabilities
The letter addresses ways that schools and parents can work together to ensure that students with disabilities, who are at higher risk of severe complications due to COVID-19, can safely attend school in-person. The letter also makes clear that, depending on the circumstances, Section 504 of the Rehab Act and the ADA’s reasonable modification obligation could require some degree of masking of students and staff when necessary to ensure that students with disabilities have equal access to in-person learning.
EEOC Sues Carolina Title Loans / Community Loans of America for Race Harassment and Disability Discrimination
Georgia-based Community Loans of America, Inc. and its subsidiary, Carolina Title Loans, Inc., violated federal law by subjecting an employee to a racially hostile work environment, by failing to accommodate her disability, and by firing her because of that disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. According to the EEOC’s complaint, the employer refused to allow Jenkins to return to work following unpaid leave for a disability-related surgery
Stevens Transport Settles EEOC Disability Discrimination Suit
Stevens Transport, the largest refrigerated trucking company in Texas, will pay $75,000 and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced. According to the EEOC’s lawsuit, an applicant applied to work for Stevens Transport in the Mesquite, Texas facility in August 2019. He was contacted by a recruiter and brought in for interview. During his interview, the applicant was asked whether a gap in his employment reflected on his resume was related to a medical reason. The applicant disclosed that he had been diagnosed with hypertension for which he was required to use some medical leave while working at a previous job. The EEOC’s suit alleged that the recruiter later told the applicant that he would not be hired by Stevens Transport because he utilized medical leave with his prior employer.
EEOC Releases Information about Employment Discrimination Against Caregivers
The U.S. Equal Employment Opportunity Commission (EEOC) released a technical assistance document, “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Law,” and an update to its COVID-19 “What You Should Know” explaining discrimination against employees and job seekers with family caregiving responsibilities.
Saint Clare’s Health to Pay $77,550 to Settle EEOC Disability Discrimination Lawsuit
Saint Clare’s Health, a division of Prime Healthcare Services that operates two hospitals in Morris County, New Jersey, will pay $77,550 and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced. According the EEOC’s lawsuit, Saint Clare’s Health hired a pregnant candidate to file a per diem EMS dispatcher position at its Dover, New Jersey facility. A few days before her start date, however, the employee was hospitalized and diagnosed with preeclampsia, a pregnancy-related impairment affecting the circulatory system. The employee then contacted Saint Clare’s human resources department about her diagnosis and asked what steps she needed to take next. Saint Clare’s Health responded by withdrawing her job offer, even though she only needed the minor accommodation of delaying her start date by several weeks.
Justice Department Finds that Indiana State Nursing Board Discriminates Against People with Opioid Use Disorder
The Justice Department issued a letter of finding stating the Indiana State Board of Nursing (Nursing Board) violated the Americans with Disabilities Act (ADA) by prohibiting nurses who take medication to treat Opioid Use Disorder (OUD) from participating in the Indiana State Nursing Assistance Program. The letter of findings asks the Nursing Board to work with the Justice Department to resolve the civil rights violations identified during the course of its investigation.
Justice Department Finds that Colorado Violates the Americans with Disabilities Act
The Justice Department has concluded that Colorado unnecessarily segregates people with physical disabilities in nursing facilities, in violation of the Americans with Disabilities Act (ADA) and the Supreme Court’s decision in Olmstead v. L.C. The department’s findings follow a thorough and multi-year investigation into the state’s system of care for people with physical disabilities.
Justice Department Secures Settlement to Resolve Disability Discrimination Against People with Opioid Use Disorder
The Justice Department has reached a settlement agreement with Ready to Work, a not-for-profit residential, work, and social services program for individuals who are homeless, with facilities in Aurora and Boulder, Colorado. The agreement resolves a complaint under Title III of the Americans with Disabilities Act (ADA) that Ready to Work discriminated against an individual with opioid use disorder (OUD) by denying her admission to its residential, work, and social services program because she uses a prescribed medication to treat her OUD. Under the agreement, Ready to Work will not deny services on the basis of disability, including OUD, or apply standards or criteria that screen out individuals with disabilities. The agreement also requires Ready to Work to adopt non-discrimination policies, train staff on its non-discrimination obligations, and report on compliance. Ready to Work will also pay damages to the Complainant.
U.S. Attorney’s Office Reaches ADA Settlement with Jefferson Partners L.P. dba Jefferson Lines
Interim United States Attorney Nicholas W. Chase announced today that the U.S. Attorney’s Office for the District of North Dakota entered into a settlement agreement with Jefferson Partners L.P. dba Jefferson Lines to resolve an allegation that the transportation company violated the Americans with Disabilities Act of 1990 (“ADA”).
The settlement agreement resolves an ADA complaint alleging that a Jefferson Lines bus driver refused to allow a passenger, who used a walker to assist with mobility, to use the bus’s lift, located at the rear of the bus, to exit the bus. The complaint alleged that the bus driver instead required the passenger to walk from a seat at the back of the bus to the front of the bus and then use the stairs to get off the bus, all without the assistance of the walker.
U.S. Attorney’s Office Enforces Americans with Disabilities Act Against Airport Parking Company
Canopy Parking operates a 4,500-space parking lot near the Denver International Airport. As part of its airport-parking service, Canopy provides a shuttle service to the airport. A complaint was filed with the U.S. Attorney’s Office against Canopy by a customer who uses a wheelchair because of a disability.
The complainant and his wife alleged that in December 2018, Canopy was unable to provide wheelchair-accessible shuttle service from its parking lot to the Denver International Airport. The complainant had called and e-mailed ahead. Canopy represented that a wheelchair-accessible shuttle would be available. But when the complainant and his wife arrived at Canopy, they discovered that the only wheelchair-accessible shuttle had been out of service for weeks. The couple had to park elsewhere and risked missing their flight as a result of Canopy’s failure to ensure wheelchair-accessible shuttle service.
U.S. Attorney’s Office Settles Disability Discrimination Allegations
United States Attorney Rachael S. Rollins announced today that an agreement has been reached with the Massachusetts Trial Court to resolve allegations that its drug court violated the Americans with Disabilities Act (ADA) by discriminating against individuals with Opioid Use Disorder (OUD).
According to the complaint, as a condition of participating in drug court, participants were ordered or pressured to stop taking their lawfully prescribed MOUD, without an individualized assessment by a medical professional. In addition, drug court personnel – with no medical training – required or pressured drug court participants to specifically and exclusively take Vivitrol as a condition of participation in drug court, without regard to whether a health professional recommended that specific treatment option over others.
Virtual reality event company resolves ADA complaint
Infinity Experiences Inc. has reached an agreement under Title III of the Americans with Disabilities Act (ADA) to improve communication regarding physical accessibility, announced U.S. Attorney Jennifer B. Lowery.
The Infinite is a unique 3-D immersive virtual reality space exploration experience. Infinity Experiences Inc. designed The Infinite based on various NASA missions. The event embarked on a world tour starting in December 2021. It will make stops in three cities per year until 2026, the first of which was in Houston.
The investigation began after an individual with a disability complained that the exhibit was inaccessible. The Infinite’s website did not fully disclose to the public how the exhibit was accessible to individuals with disabilities. This potentially deterred them from attending the exhibit. However, Infinity Experiences cooperated and promptly addressed the issue, immediately agreeing to revise their website to include a detailed FAQ regarding accessibility and the logistics of attending the event.
U.S. Department of Transportation Announces Proposed Rule to Improve Accessibility of Lavatories on Single-Aisle Aircraft
The DOT announced that it is publishing a Notice of Proposed Rulemaking (NPRM) that would improve the accessibility of lavatories for people with disabilities traveling on new single-aisle aircraft. Comments must be received by May 27th, 2022.
In Focus
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The Department of Justice has published guidance on web accessibility and the Americans with Disabilities Act (ADA). It explains how state and local governments (entities covered by ADA Title II) and businesses open to the public (entities covered by ADA Title III) can make sure their websites are accessible to people with disabilities as required by the ADA.
The guidance discusses a range of topics, including the importance of web accessibility, barriers that inaccessible websites can create for people with disabilities, when the ADA requires web content to be accessible, and tips on making web content accessible.
The Docket
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Julie Manganis, The Salem News, Beverly, Mass.
A judge has sided with the city of Beverly in a dispute over whether a Lothrop Street family can keep a coop of chickens as emotional support animals for their 8-year-old daughter.
In an 18-page decision Monday, Judge Kathleen McCarthy-Neyman concluded that while there was evidence presented by her family that the chickens had helped the girl cope with anxiety and learning disabilities, there was also evidence presented by the city that the chickens and coop have been causing harm to nearby residents by drawing rodents and creating odors.
The judge denied the family of William Wilson and Irene Tsirozidou and their daughter Raffaele an injunction that would have prohibited the city from enforcing an order to remove the chickens.
Based on what the judge was presented by the couple’s attorney, Jeremy Cohen, and the city during a hearing last month, McCarthy-Neyman concluded that the two federal laws cited by the family, the Americans With Disabilities Act and the Fair Housing Act, did not apply in their case.
The judge found the family had not shown that the chickens were “indispensable” to their daughter’s “use and enjoyment” of the home, which is required by the Fair Housing Act. “The plaintiffs submit documentation detailing (Raffaele’s) educational challenges, her struggles with anxiety, and her difficulties in social situations,” McCarthy-Neyman wrote. “This documentation, as well as (Dr.) Wilson’s affidavit, indicate that interacting with and caring for the chickens has helped to alleviate some of these struggles. The court does not discount the positive impact caring for, and spending time with, the chickens has had on (Raffaele’s) educational progress and overall well-being,” she continued.
However, the family did not provide sufficient evidence to show that the chickens had an effect on the girl’s ability to use and enjoy her home, the judge concluded.
The judge also pointed to guidance put out by the federal Department of Housing and Urban Development in determining whether an animal is a reasonable accommodation called for under federal law. That HUD guidance states that if an animal is not one typically kept in a home, such as barn animals, a monkey or other non-domesticated animals, the applicant has the burden to show the need for that specific type of animal.
Beyond that, HUD also advises that a request for an assistance animal can be denied if the animal poses a threat of harm.
The judge concluded that while the Wilson family disagrees, there is evidence submitted by the city showing the potential for live chickens to carry germs, and that there have been reports of more rats coming to the area by neighbors.
“In the court’s view, on balance, it is the public, most particularly, the neighbors and abutters in close proximity to the premises (who have legitimate concerns regarding odors, germs and rats) that will suffer, if the court issues the plaintiff’s requested injunction.
Cohen wasn’t immediately available to comment on the decision Tuesday. Courts reporter Julie Manganis can be reached at 978-338-2521, or by email at jmanganis@salemnews.com
Copyright 2022 The Salem News (Beverly, Mass.) Distributed by Tribune Content Agency
Question
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Q. I work for a non-profit and we are presenting a conference next week. We are charging just enough to cover our costs and may even end up taking a loss so that health care professionals can afford to attend and get Continuing Education Credits. Just as we were closing registration someone registered for the conference needing an American Sign Language interpreter. Must we pay the cost for this accommodation? What if we can’t locate anyone to interpret with such short notice?
A. The Americans with Disabilities Act (ADA) requires businesses, both for profit and non-profit, to provide the same access to information to persons with disabilities as is provided to persons without disabilities. In some instances, this may require that the business provide auxiliary aids and services. Examples of auxiliary aids and services used to communicate with some one that is deaf or hard of hearing include: qualified interpreters, closed or open captioning, real-time text captioning, TTY machine, writing notes and use of a computer terminal.
It is not always necessary to provide a qualified interpreter to communicate with some one that is deaf or hard of hearing. If the information being exchanged is brief and not complicated writing notes may be effective. In instances where the information is of a complex nature and the exchange of information will be of a long duration then it is likely an interpreter would be needed. The decision on what will be provided needs to be determined on a case-by-case basis.
It would be reasonable to place a notice on materials publicizing future events requesting that individuals needing any accommodations to participate contact you by a date prior to the event. This notice should have the contact information for a staff member including their name, phone number and email address.
A business is never required to provide an auxiliary aid or service that would result in a fundamental alteration in the goods or services being provided or that would pose an undue administrative or financial burden. The fact that an organization is non-profit or that the organization may lose money on a particular event does not automatically mean that providing a qualified interpreter will result in an undue financial burden. The overall resources of the organization must be taken into consideration to determine if it poses an undue burden. A late request for a qualified interpreter may pose an undue burden because it may be difficult to locate enough qualified interpreters at the last moment. The organization should make the effort to fill a late request for a qualified interpreter.
If you have additional questions you may contact the Great Lakes ADA Center by calling (800) 949-4232 (V/TTY) or via the online, contact form.
Resources
ADA UPDATE: A PRIMER FOR SMALL BUSINESS
ADA Requirements: Effective Communication
