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Redefining the Role of Government as it Affects the Lives of People with Disabilities
March 17, 2011

ADA

ADA Update: A Primer for Small Business

(Department of Justice)
An illustrated guide to help small businesses understand the new and updated requirements of the revised ADA regulations.

Google Apps Inaccessible to Blind Students, Group Argues

(PC Magazine)
The National Federation for the Blind on Tuesday requested that the Department of Justice investigate Google for what it considers to be the discriminatory nature of its Google Apps product. New York University and Northwestern University recently adopted Google Apps for Education, transitioning their e-mail systems and collaborative tools into the Google-based cloud. The NFB contends that Google Apps "contains significant accessibility barriers for blind people utilizing screen access technology, which converts what is on the computer screen into synthesized speech or Braille."

Research Report Wheeled Mobility Devices

(Access Board)
The results are in from a major study of people who use wheeled mobility aids sponsored by the Access Board and the Department of Education.

Surface Tolerances

(Access Board)
A report from an Access Board project on dimensional tolerances for accessible surfaces is now available

Concerns arise concerning pool accessibility


In 1990 the Americans with Disabilities Act (ADA) became law, seeking to ensure that people with a disability would have access to public space. Any building created after 1990 must adhere to its regulations. This past summer the College celebrated the completion of a spectacular new athletic center, including a 50-meter by 25-yard pool. Since the pool’s completion, however, questions have arisen about the pool’s compliance with the ADA.

Lawsuit challenges access to Adirondack wilderness for people with disabilities

(North Country Public Radio)
The state of New York plans to ask a Federal judge to throw out a lawsuit which claims that environmental laws and regulations in the Adirondack Park violate the Americans with Disabilities Act

USDOT and USDOJ Fines Omnibus Express $55,000 for Violating Americans with Disabilities Act Accessibility Requirements

(Department of Transportation)
The U.S. Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA) and the Civil Rights Division of the U.S. Department of Justice (DOJ) today announced $55,000 in fines against Omnibus Express, a commercial passenger bus company based in Houston, Texas, for operating buses not accessible to passengers with disabilities.

San Francisco accessibility lawsuit heads to trial

(San Francisco Examiner)
For 3½ years, San Francisco has been embroiled in a lawsuit brought by a wheelchair-bound woman who alleges that The City does not do enough to make its sidewalks, parks, libraries and pools accessible to the disabled. The class-action lawsuit is set to go to trial next month in a federal court in Oakland. The case does not seek monetary damages, but rather seeks to force The City to spend far more than it currently does on accessibility in its public right-of-ways and public parks. The suit could also cost The City millions in attorney fees, on top of the money already spent defending the case.

Hillsboro School District allows boy with autism to have his dog in class

(OregonLive.com)
After three years of fighting the Hillsboro School District, Scooter Givens will get to use his service dog in school. Hillsboro School District announced today that it has agreed to a request from the U.S. Department of Justice to allow Scooter, a fourth-grader with autism, to have his dog, Madison, in class for a trial period.

Family sues to get son's service dog in school

WCNC
Chatham is not the "service dog" most of us think of, leading a blind handler or assisting a person in a wheelchair. He is a service dog who is specially trained to help manage the behavioral disabilities 4-year-old Ayden Silva struggles with every day. His status, and the little boy he helps, are now at the center of a federal lawsuit filed this week against the Catawba County Board of Education. Ayden Silva's parents say the school district's decision not to allow Ayden's 80-pound service dog in his pre-K classroom violates the Americans with Disabilities Act, and seriously impedes the progress they've made in helping their adoptive son manage his disabilities.

ADA Employment

Creating a split with the Second Circuit, the Sixth Circuit approves sick leave policies that may reveal a disability to a supervisor

(Sixth Circuit Blog)
In Lee v City of Columbus, the Sixth Circuit reversed a grant of summary judgment to a class of employees at the Columbus police department. The police employees had challenged the city’s policy requiring employees returning from more than three days of sick leave, injury leave, or light duty to give their immediate supervisor a doctor’s note stating the “nature of the illness.” The district court found that this policy violated the Rehabilitation Act, 29 U.S.C. § 791 (which incorporates the standards from the Americans with Disabilities Act) because it was overly intrusive. Following the Second Circuit decision in Conroy v. New York State Dep’t of Correctional Services, 333 F.3d 88 (2d Cir. 2003), the district court held that the policy violated the statute because it could reveal a disability to supervisors that had no need for that knowledge, especially when the city had a human resources department that could handle the information.

Requiring doctor's note upon return from medical leave or restricted duty did not violate federal disability law

(Bricker)
This week, the U.S. Court of Appeals for the Sixth Circuit (encompassing Ohio, Michigan, Kentucky, and Tennessee) handed the City of Columbus, Ohio, a victory in a battle with employees over the City’s requirement that employees submit a doctor’s note disclosing the “nature” of their illness upon their return to work from sick leave or restricted duty. Disagreeing with a lower court that had ruled in favor of the employees, the court of appeals ruled that Columbus’ policy violated neither the employees’ rights under the applicable disability law nor their constitutional rights. Lee v. City of Columbus, Ohio, No. 09-3899 (6th Cir. Feb. 23, 2011).

Failed Drug Test Can Haunt Applicants Later

(PlansSponsor.com)
A federal appellate court has ruled in favor of an employer who used a failed drug test from several years prior to deny employment to a recovered drug user.

Did Employer 'Reasonably Accommodate' Disability? - complete article (HR.BLR.com)
An Illinois salesman had injured his back before he joined his employer in 1998. The employer acknowledged knowing of the injury by 2002 at the latest. But the salesman repeatedly testified that the employer refused to accommodate the restrictions his doctor had imposed. Plaintiff and defendants have spent much time in court, and will have to spend more.

What happened. AutoZone promoted “Sampson” to the position of auto parts manager at its Macomb store in 1999. Sampson explained to several courts that the back injury led to what his doctor called “myofascial tenderness”: Following certain kinds of physical activity, especially twisting his trunk, his muscles would spasm, causing debilitating pain, swelling and sweating, and sometimes headaches and vomiting. Following a medical leave in April 2003, he submitted a letter from his doctor saying that he could not mop or buff the store floor—ever. AutoZone apparently threatened to fire him, so the doctor loosened the restriction to “only occasionally.” But when the store manager required him to mop the floor, Sampson was thrown into extreme pain and required another medical leave.

He needed to return with the more stringent restrictions, but AutoZone refused. Sampson was put on involuntary medical leave for a year and then fired. He filed a complaint with the Equal Employment Opportunity Commission (EEOC) that his rights under the Americans with Disabilities Act (ADA) had been violated. EEOC went to federal district court on his behalf, where a judge rejected the failure to accommodate claim but sent a further retaliation claim to a jury. The jury ruled in AutoZone’s favor, and EEOC appealed only the failure to accommodate charge to the 7th Circuit, which covers Illinois, Indiana, and Wisconsin.

What the court said. Sampson and his wife testified that 4 or 5 days a week, she had to help him bathe and dress. AutoZone argued that Sampson had never submitted medical documentation of those limits. Appellate judges noted that the ADA Amendments Act that was effective at the start of 2009 did not apply retroactively to Sampson’s claims of 2003 through 2005. But they also ruled that the employer should have accepted testimony that he was “substantially limited in the major life activity of caring for himself.” He therefore deserved accommodation, and his claim was sent back to the district court for reconsideration. EEOC v. AutoZone, U.S. Court of Appeals for the 7th Circuit, No. 10-1353 (2010).

Point to remember. Employees need not submit medical documentation of substantial limitations; employers must accept what the employees themselves say about their limits.

ADAAA Case Highlights Broadened Definition of "Disability" - complete article (McQuirewoods)
Since the U.S. Supreme Court’s 2002 decision in Toyota v. Williams, employers have enjoyed a period of relative low risk in determining whether an employee is disabled under the Americans with Disabilities Act (ADA). Using Toyota, federal courts created a body of case law that made it difficult for an employee to qualify as disabled under the ADA. Further, when an employee did satisfy the “disabled” prong of the ADA analysis, the disability was often so severe that even with a reasonable accommodation, the employee was not considered “qualified” for the position in question. This ended in 2008, when the ADA was amended to broaden the definition of “disability” to address what some viewed as an overly restrictive view of the statute. The result is a new and growing body of federal case law that grants disability status to conditions that would not have qualified as disabilities a few years ago, thereby triggering the duty for employers to engage in the collaborative process of determining whether they can provide a reasonable accommodation.

Hoffman v. Carefirst
An example of this broadened disability definition is Hoffman v. Carefirst of Fort Wayne, Inc. d/b/a Advanced Healthcare. In Hoffman, an employee who worked as a service technician traveled by van to supply homebound patients with oxygen machines and wheelchairs, and otherwise worked from home when not seeing patients. He was diagnosed with and treated for stage III kidney cancer in 2007. In 2008, after having the cancerous kidney removed, he returned to work without medical restrictions. In early 2009, Carefirst told the employee that he would be required to work extra hours up to 70 hours per week due to a new contract the company received.

The employee asked for a reasonable accommodation of a limited work week of 8 hours per day, 5 days per week and provided a note from his doctor supporting his request. The diagnosis remained stage III kidney cancer. Initially, the employee’s line supervisor summarily terminated him. Discussions ensued, and the company retracted the termination and offered the employee a choice between working 40 hours a week from another office (other than his home) or discharge. The employee rejected the company’s offer and his discharge stood.The employee then sued, claiming he was improperly denied a reasonable accommodation under the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The employer sought to dismiss the suit, claiming that the employee’s cancer was in remission. Thus, it asserted he did not have a condition that substantially limited a major life activity – the definition of disability set forth in the ADAAA. The U.S. District Court disagreed. It held, “[t]his Court is bound by the clear language of the ADAAA. Because it clearly provides that ‘an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active,’ and neither side disputes that Stage III Renal Cancer, when active, constitutes a disability, this Court must find that Hoffman was ‘disabled’ under the ADAAA.”

Employer Take-Aways
The Hoffman decision is in keeping with other federal court decisions broadly construing the expanded definition of disability under the ADAAA. Employers should expect that courts to find more conditions, even episodic conditions, to be disabilities, and should take seriously their duty to engage in the collaborative process of determining whether and what reasonable accommodations may be available. Other action items include:
- Training managers that conditions formerly thought not to be disabilities may be considered such under the ADAAA.
- Having managers refer all requests for accommodations to a central clearing point so they can be uniformly addressed.
- Being conscious that episodic conditions and conditions in remission or corrected with medication / medical devises may still be defined disabilities under the ADAAA.

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