ADA
U.S. Department of Education Office for Civil Rights Issues FAQ To Address Technology And Accessibility
(Fair Use Lab)
On May 26, 2011, the Department of Education's Office for Civil Rights (OCR) issued an online FAQ document discussing how OCR believes the "equal access" requirements of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1964 (Section 504) apply to the use of emerging technology such as electronic book readers, online application processes, and websites in higher education. The FAQ offers valuable insight into the enforcement priorities of OCR and the Department of Justice (DOJ) in this area of disability law and may be helpful to institutions grappling with the challenges of technological accessibility.
Justice Department Issues Technical Assistance Document on Enforcement of the Supreme Court Decision in Olmstead v. L.C
(Department of Justice)
A website dedicated to Olmstead Enforcement
(Department of Justice)
Some public pools face closure over disability rules
(News and Sentinel)
New Americans with Disabilities Act regulations could force some smaller public pools to close next summer. The new rules, which became law on March 15 of this year, require public pools and spas to provide at least two means for disabled persons to enter the water. Compliance with the rules is mandated for all public facilities by March 15, 2012.
National Association of the Deaf Files Disability Civil Rights Lawsuit Against Netflix
(YahooNews)
Deaf and Hard of Hearing Plaintiffs Charge that Netflix Violates the Americans with Disabilities Act by Not Providing Equal Access to its “Watch Instantly” Streaming Content. An estimated 36 million Americans are deaf or hard of hearing. The deaf and hard of hearing community has repeatedly expressed concerns—via letters, petitions, blogs, and social media—to Netflix about its failure to provide equal access to “Watch Instantly.”
Lawsuit filed for 2 deaf detainees at NC prison
(Daily Comet)
Two deaf men being held at a federal prison in North Carolina cannot receive counseling, participate in religious services or do many other things that hearing people can do, because the government has refused to provide them with the specialized interpreters they need, their attorneys say in a lawsuit.
Museum boosts access to exhibits
(ABC Local)
The Americans with Disabilities Act requires nonprofit entities -- including the arts, education, recreation and human services -- to be accessible for people with disabilities. Keeping thiss commitment is essential, and the Chicago Community Trust helps with a guide called "Renewing the Commitment" Even thought the ADA was implemented 20 years ago, there's still work to be done. The Museum of Science and Industry is one example of a nonprofit facility that has found creative solutions for extraordinary exhibits.
U.S. Access Board to Issue Proposed Guidelines for Accessible Public Rights-of-Way
(Access Board)
The Board plans to release for public comment proposed guidelines for public rights-of-way later this summer. These guidelines will address access to sidewalks, street crossings, and other components of pedestrian networks for people with disabilities, including those with vision impairments. Through this rulemaking, the Board seeks to establish design criteria for pedestrian access routes, curb ramps and blended transitions, pedestrian signals, on-street parking, street furniture, and other elements that take into account constraints unique to public streets and sidewalks, including space limitations and terrain.
The guidelines are currently under review by the Office of Budget and Management. If cleared on schedule, the Board anticipates publishing its proposed rule in late July or August. At that time, the Board plans to release the guidelines at a public event and press conference at the Board's conference space. In addition, the Board will conduct a webinar to review the rule and will hold public hearings in Washington, D.C. and Dallas. The guidelines will be available for comment for several months and will be posted to regulations.gov for review and comment. To receive email updates on this rulemaking and further details on planned outreach activities, sign up to the Board's rights-of-way subscription list.
ADA Employment
Was She 'Regarded as' Disabled?
HR.BLR.com
A Chicago meat-packing employee was advised to have a hip replaced, and she was out on leave for 12 weeks following the operation. But when her doctor released her to return to work, he asserted that she had a number of major restrictions: She was permanently barred from heavy lifting, squatting, crawling, or climbing. The plant fired her, and she sued.
Disability Causes Violation of Anti-Violence Policy: What to Do?
HR.BLR.com
Employers sometimes find themselves walking a tightrope between their duty to provide a safe workplace and their duty to accommodate employees with disabilities. Thankfully, the California Court of Appeals has resolved one aspect of this dilemma, ruling that the state Fair Employment and Housing Act (FEHA) doesn’t prohibit employers from terminating an employee for threats or violence against co-workers—even if the behavior was caused by a mental disability.
Bridge worker with fear of heights deemed eligible for ADA accommodations -
complete article (Lexology)
The Americans with Disabilities Act requires employers to provide reasonable accommodations to disabled employees in order to allow them to perform the essential functions of their jobs. However, employers are not required to excuse employees from performing such essential functions, or allocate them to co-workers. A new decision from the usually employer-friendly Seventh Circuit Court of Appeals shows that in some cases, the accommodation obligation can extend to what appears to be a fundamental part of the job.
In Miller v. Illinois Dep't of Transp., the plaintiff was a bridge construction and maintenance worker who was diagnosed with acrophobia. He requested that he be excused from duties that required him to work at heights above 20 feet. The employer refused, claiming that the ability to perform tasks at this height was an essential job function for a bridge worker.
The Seventh Circuit disagreed, remanding the claim for a jury trial. While the ability to work at heights may ordinarily be an essential function, in this case, the plaintiff demonstrated that crew members regularly exchanged work tasks among themselves. For instance, one employee swapped tasks that aggravated his allergies. While someone in the crew clearly needed to perform work at heights, the fact that crew members were permitted to exchange jobs among themselves meant that it was not an essential job function for all employees.
The employer could have avoided this outcome if it adopted and enforced work rules requiring all employees to perform all essential aspects of the job. The informal job swap system in place required the employer to consider reassigning jobs at height to other employees as an ADA reasonable accommodation.
Ellicott City Surveying Company To Pay $77,000 To Settle EEOC Disability Discrimination Lawsuit
(EEOC)
An Ellicott City, Md., surveying company will pay $77,000 and furnish other remedial relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. According to EEOC’s suit, Fisher, Collins & Carter, Inc. engaged in unlawful disability discrimination when it fired Robert Gray and Wayne Seifert shortly after it discovered, through a questionnaire on employees’ health conditions, medical issues and medications, that they both had both diabetes and hypertension. Gray had worked for the company for 15 years starting as a rodman (a surveyor’s technician) and was a party chief at his termination. Seifert had been employed since 2000 as a rodman. Both had demonstrated successful performance throughout their employment there.
Englobal Engineering To Pay $100,000 To Settle EEOC Disability Discrimination Suit
, a Beaumont-based engineering firm, will pay $100,000 and provide additional remedial relief to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced Friday. The EEOC had charged ENGlobal Engineering, Inc, also known as ENGlobal U.S., Inc., with unlawfully firing an employee because it mistakenly assumed he had multiple sclerosis (MS) that would substantially limit his ability to work.
Apparel Retailer Finish Line Settles EEOC Disability Discrimination Lawsuit
(EEOC)
According to the EEOC’s suit, Finish Line refused to grant Emma Armon, who has a physical impairment related to a right shoulder injury, a transfer to an available customer service representative position as a reasonable accommodation to her disability. Armon, who worked at Finish Line’s Indianapolis store/warehouse, was qualified for the open position.
Leave Denials Often Violate ADA
- complete article (SHRM)
Too many employers assume erroneously that they can terminate an employee on leave as soon as Family and Medical Leave Act (FMLA) time off for a medical condition has expired, according to Jeffrey Braff, an attorney with Cozen O’Connor in Philadelphia. The denial of more leave at the end of FMLA leave might violate the Americans with Disabilities Act (ADA), he noted in an interview with SHRM Online.
Denying leave in excess of an employer’s cap on leave also might violate the ADA, he noted. Any employer fixed-period leave cap, whether in months or years, is subject to challenge as being inflexible and in violation of the ADA, Michael Soltis, an attorney with Jackson Lewis in Stamford, Conn., said. Even if an employer has a generous leave cap, such as one year, it is required under the ADA to consider whether additional leave for a definite period would be a reasonable accommodation, he noted.
Indefinite leave, by contrast, is not required. Robin Shea, an attorney with Constangy, Brooks & Smith in Winston-Salem, N.C., noted that the ADA would not require an employer to grant indefinite leave where an employee or his or her physician informs the employer that the employee will never be able to return to work.
But the ADA starts with a sympathetic plaintiff, so employers have to show that they really bent over backwards to reasonably accommodate, Braff commented.
Employers that retain leave caps should include language that the caps will be enforced only where allowed by law, noted Tim Bland, an attorney in Ford & Harrison’s Memphis, Tenn., office. He said, though, that leave caps can be helpful under some laws, such as some states’ workers’ compensation laws.
EEOC’s Stance
The Equal Employment Opportunity Commission (EEOC) has taken the position that an employer can never terminate an employee based on the length of leave taken by an employee because of a disability unless extending the leave would be an undue hardship, Shea said. But she added that “the courts do not take this hard a line, however.” The courts generally uphold terminations based on extended leaves of absence (six to 12 months, or more) if the employer made reasonable efforts to accommodate the worker, she remarked.
Just because an employer has a generous leave cap policy doesn’t mean that the employer has to wait until the entire period under the leave cap has run to terminate an employee if leave is indefinite before then, Soltis said. But a generous leave cap might make it more difficult to argue that providing more leave was an undue hardship, he added.
A downside of leave caps is that they might result in employers overlooking other reasonable ccommodations that could get the employee back to work much sooner, cautioned Jennifer Redmond, an attorney with Sheppard Mullin in San Francisco. She recommended entering the reasonable accommodation interactive process with employees as soon as FMLA leave runs to identify possible return-to-work options, such as part-time work, and to send the message that the goal is to get the person back to work. But she emphasized that the amount of leave an employer grants to an employee covered by the ADA must be determined on a case-by-case basis. And that may mean granting leave beyond the hard stop suggested by an employer’s leave cap, even if the leave cap is generous, Soltis said, remarking that “a hard stop for a leave without additional provision for accommodation is at risk for EEOC’s atta