ADA
Federal report blasts NH's mental health system
(Boston Globe)
A new report from the federal government confirms what New Hampshire officials have acknowledged for years: The state's mental health system is broken, failing and in crisis. The U.S. Department of Justice's civil rights division recently investigated the state for possible violations of the Americans with Disabilities Act. It concluded that the state is violating the federal law by failing to provide adequate community-based services to people with mental illness, leading to needless and prolonged stays at New Hampshire Hospital, the state mental hospital, and Glencliff Home, its nursing home for those with serious mental illness or developmental disabilities.
Justice Department Reaches ADA Settlement to Make Law School Application Processes Accessible to Blind Applicants
(Department of Justice)
The Justice Department announced two related settlement agreements involving the accessibility of the Law School Admission Council’s (LSAC) online application service, which is used by law schools nationwide for their application processes. As a result of these agreements, LSAC’s online application service, and the online application process of the nation's law schools, will be accessible to individuals who are blind.
Settlement Agreements:
National Federation of the Blind v. Law School Admission Council
Atlanta's John Marshall Law School
Consent Decree: HCA Health Services of New Hampshire (Portsmouth Regional Hospital)
(Department of Justice)
The United States alleges that the Hospital discriminated against Rosalie Varley on the basis of her disability by failing to provide qualified sign language interpreters and appropriate auxiliary aids and services during her hospitalizations at the Hospital in July of 2005 and in December of 2008. The United States further alleges that the Hospital discriminated against Donald Varley on the basis of his association with an individual with a disability by requiring him to serve as a communication facilitator on those same occasions.
DOA disputes capitol out of compliance with ADA
(WXOW)
A spokesperson for the Department of Administration disputed a state senator's claim the capitol building's access leaves it out of compliance with requirements of the federal Americans With Disabilities Act.
Banks updating ATMs to meet ADA requirements
(McPherson Sentinel)
Bryce Brewer has his work cut out for him. The Peoples Bank and Trust Vice President for Technology is in charge of retrofitting or replacing nine ATMs for the bank before March 2012. He has one complete and eight more to go. Brewer and employees at nearly every bank and credit union across the country realized a heft to-do list following the adoption of new rules and regulations for ATMs from the 2010 Americans with Disabilities Act.
ADA Employment
Court of Appeal Upholds Disability Bias Verdict for LAPD Officer
(Metropolitan News-Enterprise)
This district’s Court of Appeal on Friday upheld a $1.5 million judgment against the City of Los Angeles for failing to grant accommodation to a disabled police officer and terminating his employment from a desk position.
Protecting the Vulnerable
(Human Resource Executive Online)
Federal lawsuits filed against a turkey processor alleging physical and verbal harassment against mentally disabled workers highlights the need for HR leaders to make sure they have proper monitoring practices in place. They should also take advantage of other effective methods to better integrate workers with intellectual or cognitive disabilities.
The Timken Company To Pay $120,000 To Settle EEOC Gender And Disability Discrimination Suit
(EEOC)
In its lawsuit (EEOC v. The Timken Company, Civil Action No. 1:10 CV 113), filed in U.S. District Court for the Middle District of North Carolina, the EEOC charged that in July 2007, Timken denied a full-time position to part-time employee Carmen Halloran, who worked at the company’s Randleman, N.C., facility. At the time she applied for the full-time position, Halloran had worked at the Randleman facility as a part-time process associate for four years. The EEOC alleged that the company refused to hire Halloran because one or more managers for the company believed that Halloran, who is the mother of a disabled child, would be unable to work full time and care for her disabled child. The EEOC alleged that although Timken employed men who were the fathers of disabled children, Timken failed to hire Halloran into the full-time position based on an unfounded gender stereotype that the mother of a disabled child would necessarily be the primary caregiver for the child and therefore would not be a reliable employee.
Courts beginning to accept obesity as disability claim
(NewsOK.com)
The definition of disability expanded under Americans with Disability Act Amendments Act of 2008, now recognizing obesity as a disability in many cases.
Judge Dismisses Lawsuit Alleging Wellness Program Violated ADA
(Mondaq News Alerts)
On April 11, a Federal Judge dismissed a class action lawsuit alleging that a wellness program sponsored by Broward County, Florida (the "County") violated the Americans with Disabilities Act ("ADA"). In Seff v. Broward County, a former employee of the County, Bradley Seff, filed a class action complaint against the County alleging that it had violated the ADA by requiring employees to undergo a medical examination and making medical inquiries of its employees. United States District Judge K. Michael Moore of the United States District Court for the Southern District of Florida granted the County's Motion for Summary Judgment, finding that the wellness program was not designed to evade the purposes of the ADA.
10th Circuit: Employee Fresh out of Drug Rehab Not Protected by ADA Safe Harbor
(SHRM) – complete article
An employee terminated after testing positive for illegal drugs has no Americans with Disabilities Act (ADA) claim based on his former employer’s subsequent decision not to reinstate him even though the employee had completed a one-month inpatient rehabilitation program, the 10th U.S. Circuit Court of Appeals held.
While working as a sales representative for the employer, the employee voluntarily entered into an outpatient drug rehabilitation program. The following year, the employer asked the employee to take a drug test. Although he admitted that he would test positive for illegal drugs, the employee submitted to the test. He was fired that day for violating the employer’s drug policy, but was told by one of his superiors that he could return if he could get clean. Following his termination, the employee entered an inpatient drug rehabilitation program. He completed the 30-day program and a report issued by his rehabilitation counselor described the employee’s recovery prognosis at discharge as “guarded.” The day after he completed the program, the employee contacted the employer and asked to return to work.
In response, the employer told him that he could return to work, but that he would not return to the job he had prior to his discharge. The employee refused to accept these new terms and declined the offer. The employee then sued the employer, claiming that it discriminated against him on the basis of his history of drug use in violation of the ADA. The district court granted summary judgment for the employer and found the employee was not protected under the ADA because he was a “current” drug user at the time he sought re-employment. The 10th Circuit affirmed, but declined to adopt a “bright line” rule that 30 days of sobriety is “per se insufficient” to qualify for ADA protection.
The 10th Circuit held that, under the ADA “an individual is currently engaging in the illegal use of drugs ‘if the drug use was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem’” The employee argued that he qualified for the “safe harbor” of the ADA because he had completed the 30-day inpatient rehabilitation program and was no longer using drugs at the time he reapplied for his job. The 10th Circuit explained that whether an individual is eligible for the safe harbor must be determined on a case-by-case basis. The employer presented evidence that, at the time the employee reapplied his recovery prognosis was described as “guarded.” In addition, the employer provided testimony by an addiction specialist that approximately three months of treatment would be necessary for an addict like the employee to reach a “threshold of significant improvement” in his addiction.
Under the factual circumstances presented by this case, the court held that it was not unreasonable for the employer to conclude that it was not clear that the employee had resolved his drug problem. Although 30 days without using drugs may in some cases be sufficient for an employee to gain the protection of the ADA, in this case it was not, the 10th Circuit concluded.
Mauerhan v. Wagner Corp., 10th Cir., No. 09-4179 (April 19, 2011).
Professional Pointer:
While the court’s decision was favorable to the employer in this case, it offers no clear guidelines which permit one to readily determine whether an individual qualifies or does not qualify for protection under the ADA’s safe harbor for former drug users. Clearly, the longer an individual refrains from drug use, the more likely he or she will qualify for ADA protection. In close cases, however, an employer would be well-advised to consult with and obtain opinions from qualified professionals (drug counselors or psychologists and psychiatrists who have expertise with drug addict rehabilitation issues) concerning the question of whether a particular individual should or should not be considered as a person with a current drug abuse issue, as opposed to a recovering addict.