News From the Federal Agencies
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U.S. Access Board Meeting and Webcast in May
All are welcome to attend the next public bimonthly meeting of the U.S. Access Board, which will take place virtually on Wednesday, May 11 from 1:00 – 2:15 p.m. (ET). The agenda for the meeting includes recognition of outgoing Board members, introduction of new Board member appointees, brief reports from standing and ad hoc Board committees and the Executive Director, and remarks from Assistant Attorney General Kristen Clarke of the U.S. Department of Justice.
The U.S. Access Board will hold a virtual public information meeting on accessible medical diagnostic equipment (MDE) and the adjustability of transfer surfaces for patients who use wheelchairs on May 12, 2022 from 2:00 – 4:00 p.m. (ET). The Board is hosting this meeting to gather information on the minimum heights that MDE with transfer surfaces, including examination tables, chairs, and diagnostic imaging medical equipment with tables, can be adjusted to accommodate the broadest range of users.
North Memorial Health violated the Americans with Disabilities Act (ADA) when it failed to hire an applicant who is deaf because of her disability and failed to provide her a reasonable accommodation, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit. According to the EEOC’s lawsuit, the individual was a qualified applicant for the greeter position and could perform the essential functions of the job.
Heart of CarDon to Pay $115,000 to Settle EEOC Disability Discrimination Lawsuit
(released 4-4-22)
Heart of CarDon, Indiana-based senior living community, will pay $115,000 and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). According to the lawsuit, the senior living community determined an employee could no longer perform the essential functions of her certified nursing assistant job due to lifting restrictions resulting from a work injury. Though the employee expressed interest in several jobs she could have performed without violating her lifting restrictions, Heart of CarDon refused to accommodate her by transferring her to a vacant position for which she was qualified.
EEOC Sues International Paper for Disability Discrimination (released 4-11-22)
International Paper, Co., one of the world’s largest producers of fiber-based products such as packaging materials and fiber pulp, violated federal law by discriminating against an applicant based on his disability, ADHD (attention-deficit/hyperactivity disorder. The EEOC said that International Paper discriminated by rescinding the applicant’s conditional job offer, and by failing or refusing to provide the applicant a reasonable accommodation as part of the hiring process.
Agropur Agrees to Pay $79,000 to Resolve EEOC Disability Discrimination Suit (released 4-19-22)
Agropur, Inc., a dairy processor and U.S. subsidiary of Canadian-based Agropur Cooperative, will pay $79,000 and provide other relief to settle a federal disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced. The EEOC charged that Agropur violated federal law at its Grand Rapids, Michigan plant by failing to provide an employee with a disability with a reasonable accommodation, which resulted in her discharge.
S&C Electric Company to Pay $315,000 to Settle EEOC Disability Discrimination Lawsuit
(released 4-21-22)
S&C Electric Company, a designer and manufacturer of switching and control products for power transmission and distribution, will pay $315,000 and furnish other relief to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC) the federal agency announced. The Electric Company refused to permit a qualified employee with a disability to return to his position following Medical Leave.
DOJ and Port of Edmonds Resolve Complaint Regarding Violations of the Americans with Disabilities Act (released 4-7-22)
The U.S. Department of Justice and the Port of Edmonds have resolved a complaint that the Port violated the Americans with Disabilities Act (ADA) when it altered the parking lot at the Port marina and failed to provide appropriate accessible parking spaces. As part of the settlement, the Port of Edmonds will pay a complainant $3,522 for discrimination and inability to use the marina.
Justice Department Expands Arizona Lawsuit Alleging Disability Discrimination in Access to Surgical Care (released 4-18-22)
The Justice Department filed an amended complaint in the U.S. District Court for the District of Arizona to add American Vision Partners (AVP) as a co-defendant in the department’s lawsuit against Barnet Dulaney Perkins Eye Center (BDP). The amended complaint alleges that AVP and BDP discriminate against patients who, because of their disabilities, need assistance transferring from their wheelchairs for eye surgery. In the original complaint, the department alleged that BDP required patients with disabilities who need transfer assistance to use and pay for third party medical transport and transfer assistance as a condition of surgery, in violation of the Americans with Disabilities Act (ADA). The amended complaint adds allegations that AVP and BDP have also denied eye surgery outright to patients who need transfer assistance.
Justice Department Secures Agreement with CVS Pharmacy Inc., to Make Online COVID-19 Vaccine Registration Accessible for People with Disabilities ( released 4-11-22)
The Justice Department and the U.S. Attorney’s Office for the District of Rhode Island announced a settlement agreement with CVS Pharmacy Inc., under the Americans with Disabilities Act (ADA) that will eliminate barriers preventing people with certain disabilities from getting information about COVID-19 vaccinations and booking vaccination appointments online.
In Focus
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The Department of Justice has published guidance on Opioid Use Disorder (OUD) and the Americans with Disabilities Act (ADA). This guidance explains the protections available to people with OUD under the ADA and provides guidance to entities covered by the ADA about how to comply with the law. The guidance discusses a range of topics, including when OUD is considered a disability, the protections available to individuals taking legally prescribed medication to treat their OUD, and how to file a complaint should individuals believe that they have been discriminated against because of their OUD.
The Docket
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On April 7, 2022, a U.S. Court of Appeals for the Ninth Circuit panel held that two related employers may be treated as one integrated employer to meet the 15-employee headcount threshold under the Americans with Disabilities Act (ADA).
The plaintiff in Buchannan brought discrimination and retaliation claims against her employer, W&L Nevada, for allegedly failing to accommodate her medical conditions by requiring her to work over 20 hours per week and retaliating after a request for time off by placing her on indefinite leave.
The plaintiff alleged that the employer’s actions violated the ADA and argued that although W&L Nevada did not have 15 employees, the ADA nevertheless applied since the managing partners of the firm also managed and controlled Watkins & Letofsky, a California limited liability partnership (W&L California), and together the two entities had over 15 employees.
Analyzing the entities of W&L Nevada and W&L California, the panel found that the two W&L offices shared many administrative operations, including a shared website, email template footer, toll-free phone number, Internal Revenue Service (IRS) taxpayer identification number, and employee roster. The two managing partners owned both offices which raised “a clear inference of common financial control.” Accordingly, the panel found that “all four factors suggest an integrated enterprise.”
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Question
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Q: My office has been working from home during the COVID-19 pandemic and my employer is now transitioning everyone back to the office to work in person. I’m recovering from Long-COVID and asked if I could continue to work from home for 6 more months to recover as I am experiencing fatigue and migraine headaches. My employer is asking for documentation from my doctor. What should I have my doctor provide?
A: When the disability or need for accommodation is not obvious, an employer may require an employee to provide documentation that establishes that s/he has an ADA disability and needs the reasonable accommodation requested. The employer can request documentation come from an appropriate health care professional. The employer may only require medical documentation related to the specific disability or medical condition for the accommodation being requested.
Acceptable medical documentation should describe the:
• Nature, severity, and duration of the impairment (in this situation Long-COVID)
• Job related activity or activities that the impairment limits
• Extent to which the impairment limits the employee’s ability to perform the job related activity or activities
• Recommended reasonable accommodations (in this situation telework for 6 months) as well as substantiate why the reasonable accommodation is needed.
Resources
Job Accommodation Network (JAN) – Requests For Medical Documentation and the ADA
U.S. Equal Employment Opportunity Commission (EEOC)- Requesting Reasonable Accommodations
“May an employer ask an individual for documentation when the individual requests reasonable accommodation?
Yes. When the disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his/her disability and functional limitations. The employer is entitled to know that the individual has a covered disability for which s/he needs a reasonable accommodation.
Reasonable documentation means that the employer may require only the documentation that is needed to establish that a person has an ADA disability, and that the disability necessitates a reasonable accommodation. Thus, an employer, in response to a request for reasonable accommodation, cannot ask for documentation that is unrelated to determining the existence of a disability and the necessity for an accommodation. This means that in most situations an employer cannot request a person’s complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation. If an individual has more than one disability, an employer can request information pertaining only to the disability that requires a reasonable accommodation.
An employer may require that the documentation about the disability and the functional limitations come from an appropriate health care or rehabilitation professional. The appropriate professional in any particular situation will depend on the disability and the type of functional limitation it imposes. Appropriate professionals include, but are not limited to, doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals.
In requesting documentation, employers should specify what types of information they are seeking regarding the disability, its functional limitations, and the need for reasonable accommodation. The individual can be asked to sign a limited release allowing the employer to submit a list of specific questions to the health care or vocational professional.
As an alternative to requesting documentation, an employer may simply discuss with the person the nature of his/her disability and functional limitations. It would be useful for the employer to make clear to the individual why it is requesting information, i.e., to verify the existence of an ADA disability and the need for a reasonable accommodation.
Example A: An employee says to an employer, “I’m having trouble reaching tools because of my shoulder injury.” The employer may ask the employee for documentation describing the impairment; the nature, severity, and duration of the impairment; the activity or activities that the impairment limits; and the extent to which the impairment limits the employee’s ability to perform the activity or activities (i.e., the employer is seeking information as to whether the employee has an ADA disability).
Example B: A marketing employee has a severe learning disability. He attends numerous meetings to plan marketing strategies. In order to remember what is discussed at these meetings he must take detailed notes but, due to his disability, he has great difficulty writing. The employee tells his supervisor about his disability and requests a laptop computer to use in the meetings. Since neither the disability nor the need for accommodation are obvious, the supervisor may ask the employee for reasonable documentation about his impairment; the nature, severity, and duration of the impairment; the activity or activities that the impairment limits; and the extent to which the impairment limits the employee’s ability to perform the activity or activities. The employer also may ask why the disability necessitates use of a laptop computer (or any other type of reasonable accommodation, such as a tape recorder) to help the employee retain the information from the meetings.
Example C: An employee’s spouse phones the employee’s supervisor on Monday morning to inform her that the employee had a medical emergency due to multiple sclerosis, needed to be hospitalized, and thus requires time off. The supervisor can ask the spouse to send in documentation from the employee’s treating physician that confirms that the hospitalization was related to the multiple sclerosis and provides information on how long an absence may be required from work.
If an individual’s disability or need for reasonable accommodation is not obvious, and s/he refuses to provide the reasonable documentation requested by the employer, then s/he is not entitled to reasonable accommodation. On the other hand, failure by the employer to initiate or participate in an informal dialogue with the individual after receiving a request for reasonable accommodation could result in liability for failure to provide a reasonable accommodation.”
