News From the Federal Agencies
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The U.S. Department of Education Office for Civil Rights (OCR) Announces Intent to Strengthen and Protect Rights for Students with Disabilities by Amending Regulations Implementing Section 504
The Department’s Office for Civil Rights is seeking public comments to help decide how to best improve current regulations to assist America’s students with disabilities. Interested in submitting a comment? Comments can be submitted at www2.ed.gov/policy/rights/reg/ocr/. The Department will also hold listening sessions in the coming months.
151 Coffee to Pay $70,000 to Settle EEOC Disability Discrimination Lawsuit (Released 5-9-22)
151 Coffee fired two employees with disabilities who requested reasonable accommodations.
As a result of the pandemic, 151 Coffee closed all its locations in April 2020. The company sent an email to all employees announcing the reopening of stores in May and asking employees to confirm whether they would like to return. Two employees with disabilities said that they were ready to return to work but requested reasonable accommodations because their disabilities placed them at higher risk of serious illness from COVID-19. 151 Coffee denied both employees’ requests for reasonable accommodation, and instead told the two employees they could not return to work until a vaccine for COVID-19 had been developed.
RCC Partners to Pay $30,000 to Settle EEOC Disability Discrimination Lawsuit (Released 5-10-22)
A Subway Franchise did not accommodate a worker with autism and then fired him because of his disability. The worker’s mother explained to the restaurant that he needed accommodations because of his autism and ADHD. Subway 701 knew that the applicant would need specific instructions for tasks, redirection, and someone to follow up to make sure he understood the task. But Subway did not provide those accommodations when the new hire started work. Instead, Subway 701 fired him after only four shifts because of his disability and/or his need for accommodation.
EEOC Report Analyzes Situation of Workers with Disabilities in the Federal Workforce
The U.S. Equal Employment Opportunity Commission (EEOC) has issued a report that shows:
- Opportunities for persons with disabilities in the federal workforce are improving
- Advancements are needed for keeping and representing people with disabilities in employment leadership positions
Justice Department Secures Agreement with Hotel in Columbus, Ohio, to Ensure Access for People with Disabilities(Released 5-4-22)
The Justice Department entered into an agreement under the Americans with Disabilities Act (ADA) with the Holiday Inn Express Hotel & Suites in Columbus, Ohio. The agreement requires a list of modifications to provide better access for customers with disabilities, including those who use wheelchairs.
An investigation started after a complaint was received from a couple who claimed that they reserved accessible rooms after being told by hotel staff that the rooms had accessible “roll-in” showers fitted for wheelchairs. When the couple arrived, neither of the bathrooms had a roll-in shower and they were forced to find a different hotel.
U.S. Department of Justice Fact Sheet: Accessibility of COVID-19 Vaccine Websites and the ADA (Released 5-11-22)
The Justice Department released a fact sheet about Accessibility of COVID-19 Vaccine Websites and the Americans with Disabilities Act (ADA). The Department quotes, “As businesses and state and local governments increasingly rely on websites to offer their goods, services, and programs, it is especially important that the online world is usable by all people, regardless of disability”.
Justice Department Launches Civil Rights Investigation into Kentucky’s Mental Health Service System (Released 5-24-22)
The Department of Justice opened an investigation under the Americans with Disabilities Act (ADA) to determine whether the Commonwealth of Kentucky puts adults with serious mental illness living in the Louisville/Jefferson County Metro area through unnecessary institutionalization, and serious risk of institutionalization, in psychiatric hospitals. The investigation will look at whether Kentucky unnecessarily segregates people with serious mental illness in psychiatric hospitals and places them at risk of police encounters by not providing integrated community-based mental health services needed to avoid these results.
DOJ and Vancouver Police Department resolve alleged violations of Americans with Disabilities Act (Released 5-24-22)
The Vancouver Police Department in Vancouver, Washington, and the U.S. Department of Justice reached a settlement agreement to ensure equal access to services for all individuals who are deaf or hard of hearing. The investigation and settlement resulted from the complaint of a Vancouver resident who is deaf and was denied auxiliary aids or services during her interview and arrest.
Justice Department Secures Agreement to Provide Community-Based Services to Children with Disabilities in Rhode Island (Released 5-18-22)
The parents of a child with autism filed a complaint with the Justice Department, claiming that Rhode Island did not provide community-based Medicaid services that the state had approved for their minor son. These services allow children with disabilities to stay in their homes and communities instead of entering residential treatment facilities. The parents claimed that while the state authorized their son to receive 25-34 hours per week of community-based services, their son only received about half of the weekly authorized hours. As a result, the parents feared that their son would have to leave their home and move to an institution. After the United States opened an investigation of this complaint, the child entered an out-of-state residential treatment facility for several months.
U.S. Attorney’s Office Reaches ADA Settlement with Milnor Public School District (Released 5-6-22)
Interim United States Attorney Nicholas W. Chase announced that the U.S. Attorney’s Office for the District of North Dakota reached a settlement agreement with the Milnor Public School District to resolve a claim that the School District violated the Americans with Disabilities Act (ADA).
The settlement agreement resolves a complaint claiming that the newly constructed playground at the Milnor Public School is not accessible to students with disabilities, and that the School District did not provide accessible transportation to a student with a disability for a field trip.
In Focus
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The U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) each released a technical assistance document about disability discrimination when employers use artificial intelligence (AI) and other software tools to make employment decisions.
AI and other software tools are used to help employers select new employees, track performance, and determine pay or promotions. Employers may give computer-based tests to applicants or use computer software to score applicants’ resumes. Many of these tools use algorithms or AI. These tools may result in unlawful discrimination against people with disabilities in violation of the Americans with Disabilities Act (ADA).
The EEOC technical assistance document, “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees,” focuses on three main concerns under the ADA:
- Employers should have a process in place to provide reasonable accommodations when using algorithmic decision-making tools;
- Without proper safeguards, workers with disabilities may be “screened out” from consideration in a job or promotion even if they can do the job with or without a reasonable accommodation; and
- If the use of AI or algorithms results in applicants or employees having to provide information about disabilities or medical conditions, it may result in prohibited disability-related inquiries or medical exams.
The DOJ’s guidance document, “Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring,”:
- Provides examples of the types of technological tools that employers are using;
- Clarifies that, when designing or choosing technological tools, employers must consider how their tools could impact different disabilities;
- Explains employers’ obligations under the ADA when using algorithmic decision-making tools, including when an employer must provide a reasonable accommodation; and
Provides information for employees on what to do if they believe they have experienced discrimination.
The Docket
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The Ninth Circuit Court of Appeals held that even temporary health conditions without long-term effects may qualify as disabilities protected by the Americans with Disabilities Act (ADA).
In Shields v. Credit One Bank, Kate Shields sued her employer for discharging her from her human resources position instead of allowing her the additional eight weeks of unpaid leave that her doctor recommended for further recovery from a surgery. Her employer claimed her position had been eliminated and declined to consider further leave beyond what she had already received. The U.S. District Court of Nevada dismissed the case before trial, saying that Shields failed to plead any permanent or long-term impairments from her condition.
The Court of Appeals reversed, relying on the ADA Amendments Act of 2008 (ADAAA) and its 2011 regulations to conclude that the duration of the limitation is only one factor to consider in determining if an impairment “substantially limits a major life activity” warranting protection under the ADA.
Because of the severity of Ms. Shield’s restrictions, the Court of Appeals determined that she was sufficiently “disabled” to trigger the ADA’s protections and move on to trial.
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Question
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Is working from home/telework considered a reasonable accommodation under the ADA?
Yes, it can be. Changing the location where work is performed may fall under the ADA’s reasonable accommodation requirement of modifying workplace policies, even if the employer does not allow other employees to telework.
Remote work can address the following work-related barriers:
- Exposure to viruses and bacteria
- Workplace distractions affecting concentration
- Lack of privacy to manage personal/medical needs, like using the restroom, taking medication, or receiving treatment
- Difficulty commuting to and from work due to disability-related reasons
- Limited access to accessible parking
- Limited worksite or workstation accessibility
- Environmental issues (e.g., construction activities, exposure to chemicals/irritants, temperature sensitivity, problematic lighting, etc.)
- Rigid work schedule
Answering the following questions may be useful when exploring remote work as a reasonable accommodation:
- Can the essential job functions of the position be performed outside of the traditional work environment?
- Does the work require in-person interaction with colleagues, clients, or customers, and can communication occur in an alternative way?
- How frequently will telework be needed, and for what duration?
- Will the employee have access to the equipment needed to perform the essential duties of the position?
- How will the employee be supervised, and performance be measured? (Did the employee work remotely during the COVID-19 pandemic and where any performance reviews completed during that time?)
- Are other employees in the same position permitted to work at home?
- May an employer provide accommodations that enable an employee to work full-time in the workplace rather than granting a request to work at home?
As part of the interactive process, the employer should discuss with the individual whether the disability requires working at home full-time or part-time. For some people, that may mean one day a week, two half-days, or every day for a specific period of time (e.g., for three months while an employee recovers from treatment or surgery related to a disability).
In other instances, the nature of a disability may make it difficult to estimate exactly when it will be necessary for an employee to work at home. For example, sometimes the effects of a disability become very severe on a recurring but irregular basis. When these flare-ups occur, they sometimes prevent an individual from getting to the workplace. In these instances, an employee might need to work at home on an “as needed” basis, if this can be done without undue hardship.
If the disability requires working at home part-time, then the employer and employee should develop a schedule that meets both of their needs.
Work at Home/Telework as a Reasonable Accommodation | U.S. Equal Employment Opportunity Commission (eeoc.gov)
Telework (askjan.org)
Resources
Did you know that Congress created a system of protection and advocacy agencies, also known as P&As, to protect and advocate for the rights of people with disabilities? P&As are federally mandated and work to improve the lives of people with disabilities by guarding against abuse; advocating for basic rights; and ensuring access and accountability in health care, education, employment, housing, transportation, voting, and within the juvenile and criminal justice systems. As part of that mandate, the P&A network includes agencies in every state and U.S. territory, working to provide legal protection and advocacy services for people with disabilities. Find your local P&A agency here.
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