News From the Federal Agencies
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U.S. Access Board
Deborah A. Ryan Elected Chair of the Access Board – United States Access Board
The Access Board unanimously elected Board Member Deborah A. Ryan of Boston as its new Chair on. Ryan is head of Deborah A. Ryan & Associates, an accessibility consulting firm that she founded in 2002.
Read More about Deborah Ryan as Chair of the Access Board=
U.S. Equal Employment Opportunity Commission (EEOC)
EEOC Files Suit against Big Lots Stores for Disability Discrimination and Retaliation
National retailer Big Lots Stores, Inc. violated federal law by condoning disability harassment and punishing an employee without disabilities for her association with a co-worker with disabilities, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. In its lawsuit, the EEOC charged that a retail employee with hearing and speech disabilities was subjected to harassment by her co-workers.
Read More about the EEOC Lawsuit against Big Lots=
UPCO Will Pay $106,000 For Disability Discrimination
A Claremore, Okla.-based manufacturer of sucker rods and accessories for the oil and gas industry will pay $106,000 and furnish other relief to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC),. According to the EEOC lawsuit, Lydia Summers began working as a temporary receptionist and assisting in the accounting department. After five months, UPCO made Summers a conditional offer of full-time, permanent employment, conditioned on Summers passing a pre-employment medical exam conducted by a third-party vendor. Following the exam, the vendor’s physician, who never examined or questioned Summers, refused to approve her for employment with UPCO because of the supposed side effects of her prescription medications. Even after Summers provided UPCO with a letter from her personal physician stating that she was not impaired by her medications, UPCO rescinded its job offer, the EEOC alleged.
Read More about the Settlement between the EEOC and UPCO
EEOC Sues Asurion for Disability Discrimination
Asurion, LLC, a customer service support provider for electronic devices, violated federal law by refusing to hire an applicant at its former Meridian, Miss., location because she is a paraplegic, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. According to the EEOC lawsuit, Lakisha Person applied for a customer care representative position online. After reviewing her application, Asurion telephoned Person to discuss her interest in and avail¬ability for a position at its Meridian location. According to the EEOC, when the Asurion interviewer learned that Person was paralyzed from the waist down, the interviewer abruptly ended the interview without inquiring into her skills and relevant work experience.
Read More about the EEOC Lawsuit
EEOC Sues Impressions Incorporated for Disability Discrimination
Impressions, Incorporated, a St. Paul-based design, printing and packaging company, violated federal law by requiring unlawful medical exams and then firing an employee because of his disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed.
Read More about the EEOC Lawsuit against Impressions Incorporated
Medstar Harbor Hospital Will Pay $179,576 to Settle EEOC Disability Discrimination Lawsuit
Harbor Hospital Inc., trading as MedStar Harbor Hospital, will pay $179,576 and furnish other relief to resolve a federal disability discrimination lawsuit filed by the U.S. Equal Employ¬ment Opportunity Commission (EEOC), the agency announced. The EEOC said that MedStar Harbor Hospital violated federal law when it refused to provide a reasonable accommodation to and instead fired Jerome Alston, a respiratory therapist, because of his disability.
Read about the Settlement between Medstar Harbor Hospital and the EEOC
EEOC and Flying Star Transport Settle ADA Claims for $65,000
Amarillo, Texas-based fuel transport company has agreed to pay $65,000 and furnish other relief to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Oppor¬tunity Commission (EEOC), the federal agency announced. According to the EEOC lawsuit, Flying Star Transport violated federal law by denying hire to truck driver Robert Kallgren because he had had his arm amputated during his teenage years.
Read More about the Settlement between the EEOC and Flying Star Transport
EEOC Sues Tampa Massage Envy Franchise For Disability Discrimination
Massage Envy franchise in south Tampa, violated federal law prohibiting discrimination based on disability status by firing an employee for traveling to Ghana, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. According to the EEOC lawsuit, company officials insisted Kimberly Lowe cancel her approved vacation plans because they feared her travel would lead to a potentially catastrophic outbreak of Ebola in the United States, and fired her when she refused to do so.
Read More about the EEOC Lawsuit against Massage Envy
U.S. Department of Justice (DOJ)
Justice Department Reaches Settlement with Dolgencorp, LLC
The Settlement agreement between the Justice Department and Dollar General resolves an investigation by the U.S. Attorney’s Office for the Southern District of Alabama. The agreement focuses on Dollar General Stores to maintain the accessible features of their facilities including accessible parking spaces and associated access aisle, accessible routes to the store entrance and accessible routes throughout the store.
Read the Settlement Agreement between DOJ and Dollar General Stores
Justice and Fill Building Associates, LLC Reach ADA Settlement Agreement
The United States Attorney’s Office for the Eastern District of Michigan initiated an investation following the receipt of a complaint. The complaint alleged that an office building owned and by Fill Building Associates, LLC was inaccessible to individuals that use mobility devices because of architectural barriers. The group will provide properly identified and striped operated vehicle and van parking spaces, install signage at inaccessible entrances directing individuals to the location of an accessible entrance and provide accessible exterior routes.
Read the Settlement Agreement between DOJ and Fill Building Associates, LLC
Settlement Agreement between the Board of Election Commissioners for the City of Chicago and the Justice Department
In February the Justice Department conducted a compliance review of polling places under the control of the Board of Election Commissioners for the City of Chicago. Based on polling-place reviews conducted during the March 2016 Primary Election, the Justice Department concluded that many of the Board’s “accessible” polling places as determined by rule of the State Board of Elections in fact contain, under the ADA, barriers to access for persons with mobility disabilities and persons who are blind or have other vision disabilities. The agreement in part requires that the Board shall maintain in operable working condition on Election Day and during Early Voting those features of facilities and equipment (including, but not limited to, permanent equipment such as lifts and elevators, and temporary equipment such as portable ramps, traffic cones, signs, wedges, and door stops) that are required to make polling places accessible to and usable by persons with disabilities. 28 C.F.R. § 35.133(a). If circumstances arise such that a polling place location that was previously accessible is no longer accessible because a feature of the facility or equipment is no longer operable, then the Board shall purchase new equipment or relocate the polling place to an alternative, accessible location in accordance with Paragraph 24 of this Agreement, notwithstanding any provision in State law.
Read the settlement agreement
The Docket
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In an Americans with Disabilities Act (ADA) case, the 8th Circuit Court of Appeals addressed whether employers must consider job positions that may become open in the future as possible accommodations. The question involved When an employer was evaluating an employee’s request for reassignment as an accommodation. The Court cited guidance on reassignment from the U.S. Equal Employment Opportunity Commission (EEOC) in its decision. The court said that employers must consider transfers to positions that the employer anticipates or knows will become vacant in the future.
The employee worked as a delivery driver for UPS and his work activity was limited following an injury to his back. He filed suit under the ADA after his employer failed to provide him another full time position. The employee provided information that indicated that UPS expected that feeder driver positions would become open in the near future .Based on his restrictions he would have been able to perform the feeder driver position.
ENFORCEMENT GUIDANCE: REASONABLE ACCOMMODATION AND UNDUE HARDSHIP UNDER THE AMERICANS WITH DISABILITIES ACT
Question
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Question:
Must employer find a reasonable accommodation for employee with an intellectual disability who can no longer perform his job?
Issue:
For five years, Jerry, a factory worker with an intellectual disability, operated a cutting tool by hand until the plant replaced the tool with a more complex automated machine. Although Jerry has received training, his functional limitations prevent him from learning how to operate the new equipment, and there are no reasonable accommodations that will enable him to do his job. He asked Lonnie, his supervisor, if there is some other job he can do at the plant. Lonnie wants to know if he can skip all that and just fire Jerry.
Answer:
No, Lonnie cannot just fire Jerry. The Americans with Disabilities Act (ADA) requires employers to reasonably accommodate applicants and employees with disabilities to enable them to enjoy equal employment opportunities unless doing so would be an undue hardship (i.e., a significant difficulty or expense). Accommodations vary depending on the needs of the individual with a disability.
The employer should work with Jerry to determine whether he can be reassigned to a vacant position for which he is qualified. The vacant position must be equivalent in terms of pay and status to the original job, or as close as possible if no equivalent position exists. The position need not be a promotion, although the employee should be able to compete for any promotion for which he is eligible. The employer should work with Jerry to determine whether he can be reassigned to a vacant position for which he is qualified. The vacant position must be equivalent in terms of pay and status to the original job, or as close as possible if no equivalent position exists. The position need not be a promotion, although the employee should be able to compete for any promotion for which he is eligible.
Employers should ask an employee with an intellectual disability, or the person acting on his or her behalf, what the employee needs to help him or her do the job. Also, extensive public and private resources are available to help employers identify reasonable accommodations.
For additional information regarding the employment provisions of the ADA contact the Great Lakes Center by calling (800) 949-4232 (V/TTY) or via our Online Contact Form.
Source:
In Focus
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A Cautionary Tale for Healthcare Providers: Are You Actually Providing Effective Communication Under the ADA and the Rehabilitation Act?
Lexology
The Eleventh Circuit, in Silva v. Baptist Health South Florida, Inc., recently addressed a healthcare provider’s obligation to provide effective communication, through appropriate auxiliary aids and services, to persons with disabilities pursuant to the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (RA).[1] The lessons from this opinion are instructive to healthcare providers around the country who may find themselves in the shoes of the defendants.
The Facts and Procedural History
The plaintiffs in Silva, who are hearing-impaired, alleged that the defendants, two nonprofit hospitals and their nonprofit parent company, failed to provide an in-person interpreter for American Sign Language but relied instead on video remote interpreting (VRI), which was allegedly ineffective in violation of the ADA and the RA.[2] The district court awarded summary judgment to the defendants on the basis that the plaintiffs lacked Article III standing to seek injunctive relief under the ADA or the RA because they did not show that they were likely to return to the healthcare facilities in the future.[3] The district court also dismissed plaintiffs’ claims under the RA because they failed to establish any damages, i.e., they failed to demonstrate instances where communication difficulties resulted in actual adverse medical consequences to them.[4]
The Standard for an Effective Communication Claim Under the ADA and RA
A unanimous Eleventh Circuit panel, however, reversed the lower court’s ruling. While the court recognized that it is ultimately up to the healthcare provider to determine the appropriate auxiliary aid to supply and that it is not required to supply any and all auxiliary aids demanded, the court stressed that the auxiliary aid furnished must provide effective communication.[5] The court held that “the relevant inquiry is whether the hospitals’ failure to offer an appropriate auxiliary aid impaired the patient’s ability to exchange medically relevant information with hospital staff.”[6] It explained that hospitals must “afford a level of communication to a deaf patient about medically relevant information that is substantially equal to that afforded to non-disabled patients.”[7] The court further recognized that whether appropriate auxiliary aids have been provided is “inherently fact-intensive.”[8]
The court rejected the requirement that, to make out an effective communication claim, a plaintiff must establish actual deficient treatment or recount specifically what the plaintiff did not understand.[9] It explained that the “focus is on the effectiveness of the communication, not on the medical success of the outcome.”[10] The court also rejected the notion that a defendant could defeat such a claim by showing that a plaintiff was able to participate in the “most basic elements of the doctor-patient exchange.”[11]
The Plaintiffs Offered Sufficient Evidence to Defeat Summary Judgment
The Eleventh Circuit held that the plaintiffs set forth sufficient evidence to overcome summary judgment. The court found that the plaintiffs offered enough evidence for a jury to conclude that the defendants’ failure to offer an appropriate auxiliary aid impaired their ability to exchange medically relevant information with hospital staff. One plaintiff explained that “[o]n some occasions . . . the [VRI] machine was inoperable or unusable” and “it appeared the hospital staff could not figure out how to operate the machine[;] [o]ther times, the picture would be blocked, frozen, or degraded.”[12] She also alleged that she “requested an interpreter many times” but “wait[ed] for so long” before the interpreter arrived.[13] In the meantime, while hospital staff attempted to communicate with the plaintiff through written notes and gestures, the plaintiff attested that she was “unable to understand most of what they attempted to communicate through these means” and that she was made to sign forms consenting to treatment and medications that she “did not fully understand or even have the opportunity to ask questions about.”[14]
The other plaintiff recounted that because the defendants did not have VRI machines at its outpatient facilities, the medical team relied on his wife’s interpretative assistance.[15] The court noted that, with limited exceptions, reliance on companions for communication is not permitted under the ADA.[16] This plaintiff also testified in his deposition that “[i]t was all day long I had a bad experience with that VRI; [e]very staff member tried to get it going and nobody could.”[17] As such, he thereafter declined the VRI because he did not “even want to waste all that time” with a device that often malfunctioned.[18]
The Eleventh Circuit also concluded that the plaintiffs had standing to seek injunctive relief under both acts.[19] Their affidavits set forth that the plaintiffs had a history of prior care and treatment at the hospitals and would likely return to the hospitals for future care.[20] The defendants also maintained the plaintiffs’ medical records, and their facilities were located close to the plaintiffs’ homes.[21]
The Corporate Parent Is a Proper Defendant
The Eleventh Circuit also rejected the defendants’ argument that the parent entity of the hospitals was an improper party to the dispute because it was not a medical facility where the plaintiffs had received medical services. The court rejected this argument because “[t]here is no rule that a covered entity under the ADA or RA must be the direct service provider — in fact the ADA addresses itself to those who own, lease, or operate a place of public accommodation.”[22] It explained that the corporate parent “owns and operates the hospitals at which Plaintiffs presented, it houses the network to which the VRI machines are connected, and applies its various policies and procedures to [the hospitals] and affiliated outpatient facilities.”[23]
Takeaways
The Eleventh Circuit’s opinion in Silva highlights the importance of a healthcare facility having the appropriate resources, policies, and practices in place to provide effective communication to persons with disabilities. Several healthcare facilities (and other public accommodations) have moved toward retaining VRI services given the revised ADA regulations on their use, as well as the convenience and cost savings afforded from such services. It is imperative, however, that healthcare facilities ensure that VRI equipment functions properly and that staff are trained on how to use such equipment and troubleshoot issues that may arise. Healthcare providers may also want to have arrangements in place so that live interpreters can be timely provided when necessary.
While this opinion involves patients with hearing impairments, there are a variety of other disabilities (e.g., vision, mobility, cognitive) that healthcare facilities need also to consider when assessing whether they have the appropriate auxiliary aids and services in place to ensure effective communication with patients with disabilities.
Moreover, healthcare facilities often face greater exposure to disability discrimination claims as compared to other private businesses because many receive federal funding, which makes them subject to the RA. In addition to injunctive relief, the ADA and the RA allow for the recovery of attorney’s fees and costs, and the RA further allows for recovery of damages.
K&L Gates – Carol C. Lumpkin and Stephanie N. Moot
Source: Lexology
Trainings and Events
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AccessibilityOnline Webinar Series
Accessible Courthouses (A refresher)
July 6th, 2017 1:30-3:00 CT.
This session will provide a refresher on requirements in the ADA and ABA Accessibility Standards for courthouses and courtrooms. Presenters will review provisions in the standards for secured entrances, judges’ benches, jury boxes, witness stands, clerk and bailiff stations, spectator seating, holding cells, and other courthouse spaces and elements.
Speakers:
Dave YanchulisSenior Accessibility Specialist/Coordinator of Public Affairs, US Access Board, Office of Technical and Information Services
For more information visit
AccessibilityOnline at http://www.accessibilityonline.org or call (877) 232-1990
Accessible Technology Webinar Series
Planning & Producing Accessible Videos for Web, Social Media & eLearning
July 20th, 2017 1-2:30 CT.
Want to create accessible videos? It all comes down to planning. Regardless of the final location (web, social media, eLearning…) videos require key components to enable everyone to access them. Learn about best practices for captioning and audio description; accessibility issues with video players; and what to consider as you plan your project.
Speakers:
Jay Wyant Chief Information Acessibility Officer,Minnesota State CIO Office
For more information visit
Accessible Technology at http://www.accessibilityonline.org/ada-tech or call (877) 232-1990
Section 508 Webinar Series
Revised Section 508 Chapter 4 Hardware (including Mobile)
July 26th, 2017
The revised Section 508 Standards and Section 255 Guidelines address many changes to technology that have occurred since 2000. Among the most significant changes are the widespread use of mobile technology and the increasing use of mobile devices to perform a variety of ICT functions.
Join us for this session where the presenters will focus on Chapter 4 Hardware. The presenters will discuss Closed Functionality, the new requirements for speech-output for ICT with display screens, privacy, operable parts, ICT with two-way voice communication, closed caption and audio description processing technologies and user controls and others. The presenters will also discuss sources for technical assistance and provide examples of how the hardware provisions may be implemented.
WHO SHOULD ATTEND: The intended audience for this training includes developers, federal procurement officials and everyone involved with implementing Section 508.
Speakers:
Bruce Bailey,Accessibility Specialist/Information Technology Specialist,US Access Board
Timothy Creagan ,Senior Accessibility Specialist/Information Technology, U.S. Architectural and Transportation Barriers Compliance Board (the Access Board)
For more information visit
Section 508 at https://www.accessibilityonline.org/cioc-508/ or call (877) 232-1990
ADA Legal Webinar Series
Readily Achievable Barrier Removal Issues – focusing on small to mid-sized businesses
Removing barriers in existing facilities is an ongoing responsibility for many business owners. However, in recent years we have seen a steady increase in the number of Title III Lawsuits in the U.S. aimed at small businesses. At the heart of many cases are issues involving readily achievable barrier removal. Attorney Diego Demaya with the Southwest ADA Center will discuss readily achievable barrier removal requirements for businesses under ADA Title III. This session will review recent cases and how those decisions affect businesses and consumers as well as provide recommendations for how business owners can comply without much difficulty or expense. A legal update addressing so-called drive-by lawsuits will be provided including a look at developments such as the 99 drive-by lawsuits recently dismissed in the state of New Mexico.
Speakers:
Diego Demaya , JD, Legal Specialist, Southwest ADA Center at ILRU
For more information visit
ADA Legal at http://www.ada-legal.org/ or call (877) 232-1990
AccessibilityOnline Webinar Series
Surface Roughness and Rollability Research
August 3rd, 2017 1:30-3:00 CT.
Rough and uneven surfaces can be uncomfortable, even painful, for people who use wheeled mobility aids. While there are ways to measure and analyze surface roughness for roadways, none are appropriate for pedestrian pathways. The Access Board funded a study that used subject testing to examine how the roughness of pathway surfaces impacts wheelchair travel. Conducted by the Human Engineering Research Laboratories at the University of Pittsburgh, the project measured body vibrations resulting from travel across various types of bumpy or uneven surfaces, including existing sidewalks and simulated surfaces. Results from this research were used in the development of a new ASTM standard on pedestrian surfaces. This session will discuss the research findings and the new ASTM standard.
Speakers:
Jon Pearlman Senior Accessibility Specialist/Coordinator of Public Affairs, US Access Board, Office of Technical and Information Services
Scott Windley Accessibility Specialist, Office of Technical and Information Services
For more information visit
AccessibilityOnline at http://www.accessibilityonline.org or call (877) 232-1990
AccessibilityOnline Webinar Series
Open Q & A
September 7th, 2017
This is a regular session in our webinar series that provides an opportunity to ask questions on any topic related to the Board’s work and activities. Questions are welcome on the Board’s accessibility requirements and rulemaking activities, including the ADA and ABA Accessibility Standards, new standards being developed for medical diagnostic equipment, and other topics related to the Board’s work. Accessibility specialists will answer questions submitted in advance during the first half of the session, leaving time in the second half to answer questions in the live session.
Speakers:
Marsha Mazz Director, Office of Technical and Information Services, US Access Board
Rex Pace Senior Accessibility Specialist and Technical Assistance Coordinator,US Access Board
For more information visit
AccessibilityOnline at http://www.accessibilityonline.org or call (877) 232-1990
ADA Legal Webinar Series
Readily Achievable Barrier Removal Issues – focusing on small to mid-sized businesses
Reasonable Accommodation Update
Providing reasonable accommodations so that employees with disabilities can perform the essential functions of the job is one of the cornerstones of the ADA. However, the process for obtaining and providing reasonable accommodations can be confusing for employees and employers. This session will review the latest reasonable accommodation court decisions so that all stakeholders can better understand their rights and responsibilities.
Speakers:
Barry Taylor , Director of Legal Services,Equip for Equality
For more information visit
ADA Legal at http://www.ada-legal.org/ or call (877) 232-1990
