Tag: ADA

Equal Employment Opportunity Commission (EEOC) Offers Updated Americans with Disabilities Act (ADA) Guidance Q&A’s Pertaining to Cancer, Diabetes, Epilepsy and Intellectual Disabilities

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In a measure to keep up with the changes made by the Americans with Disabilities Amendments Act (ADAAA) in relation to what employees and applicants must show to establish that they have a “disability,” the Equal Employment Opportunity Commission (EEOC) has revised its informal “Question and Answer” guidance forms pertaining to four categories of medical conditions – cancer, diabetes, epilepsy, and intellectual disabilities– to provide clarification as to how employers should address such conditions and to confirm that individuals having each of the types of conditions discussed “should easily be found to have a disability” within the ADA’s initial prong of the definition of a disability. These revised forms can be found by clicking on the links above.

The revised guidance materials include not only a general discussion of each type of condition and discuss prohibitions against discrimination, harassment, and retaliation against individuals with such conditions, they further discuss the means by which employers can obtain, use and disclose medical information relating to such conditions and possible accommodation scenarios for such conditions. In addition, the EEOC explicitly states its position as to why individuals with each type of medical condition at issue should be found to have a disability under the ADA/ADAAA:

1.    “[P]eople who currently have cancer, or have cancer that is in remission, should easily be found to have a disability within the meaning of the first part of the ADA’s definition of disability because they are substantially limited in the major life activity of normal cell growth or would be so limited if cancer currently in remission was to recur . . . Similarly, individuals with a history of cancer will be covered under the second part of the definition of disability because they will have a record of an impairment that substantially limited a major life activity in the past . . .  Finally, an individual is covered under the third (“regarded as”) prong of the definition of disability if an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of cancer or because the employer believes the individual has cancer.”

2.    “[I]ndividuals who have diabetes should easily be found to have a disability within the meaning of the first part of the ADA’s definition of disability because they are substantially limited in the major life activity of endocrine function . . . Additionally, because the determination of whether an impairment is a disability is made without regard to the ameliorative effects of mitigating measures, diabetes is a disability even if insulin, medication, or diet controls a person’s blood glucose levels. An individual with a past history of diabetes (for example, gestational diabetes) also has a disability within the meaning of the ADA . . . Finally, an individual is covered under the third (“regarded as”) prong of the definition of disability if an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of diabetes or because the employer believes the individual has diabetes.”

3.    “[I]ndividuals who have epilepsy should easily be found to have a disability within the meaning of the first part of the ADA’s definition of disability because they are substantially limited in neurological functions and other major life activities (for example, speaking or interacting with others) when seizures occur . . . Additionally, because the determination of whether an impairment is a disability is made without regard to the ameliorative effects of mitigating measures, epilepsy is a disability even if medication or surgery limits the frequency or severity of seizures or eliminates them altogether . . . An individual with a past history of epilepsy (including a misdiagnosis) also has a disability within the meaning of the ADA . . . Finally, an individual is covered under the third (“regarded as”) prong of the definition of disability if an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of epilepsy or because the employer believes the individual has epilepsy.”

4.    “[I]ndividuals who have an intellectual disability should easily be found to have a disability within the meaning of the first part of the ADA’s definition of disability because they are substantially limited in brain function and other major life activities (for example, learning, reading, and thinking) . . . An individual who was misdiagnosed as having an intellectual disability in the past also has a disability within the meaning of the ADA . . . Finally, an individual is covered under the third (“regarded as”) prong of the definition of disability if an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of an intellectual disability or because the employer believes the individual has an intellectual disability.”

The guidance provided by the EEOC also contains multiple examples and fact patterns for employers to consider in making decisions in their workplaces when faced with situations involving employees and applicants having the identified conditions.

“Essential Functions” Under the Americans with Disabilities Act (ADA) Can Include Job Functions that are Infrequently Performed

Poyner Spruill

The Americans with Disabilities Act (ADA) requires covered employers generally to provide reasonable accommodations to qualified employees with disabilities. The ADA provides, however, that the employee must be able to perform the “essential functions” of the job with the accommodation, and that the accommodation cannot prove to be an “undue hardship” on the employer.

In the recent case of Knutson v. Schwan’s Home Service, the U.S. Court of Appeals for the Eighth Circuit held that a job requirement can be an “essential function,” even if the employee is not required to perform the function on a regular basis.

In this case, Mr. Knutson was a manager for Schwan’s Home Service, which delivers frozen food. Managers for Schwan’s are required to maintain DOT driving certification.  In March 2008, Mr. Knutson sustained an eye injury.  Because of the eye injury, Mr. Knutson was required to undergo a medical exam and be recertified.  In December 2008, an eye doctor refused to give Mr. Knutson a DOT certification or a waiver.  Schwan’s then gave Mr. Knutson 30 days to find a job within the company that did not require DOT driving certification.  Mr. Knutson was unable to find such a job within the company and was terminated by Schwan’s.

Following his termination, Mr. Knutson filed suit against Schwan’s pursuant to the ADA.  He argued that since he was able to successfully manage his terminal without driving a truck that maintaining the DOT certification was not an “essential function” of his position.  The evidence before the court showed that Mr. Knutson was DOT qualified at the time of his injury; he admitted to delivering product in his personal vehicle; and he testified that since November 2007 that he had driven a truck less than 50 times while working as a manager.

The court disagreed with Mr. Knutson and held that “essential functions” of a job are determined based on the written job description, the employer’s judgment, and the experience and expectations of all individuals working in the same position.  The Court of Appeals affirmed the trial court’s granting of summary judgment in favor of Schwan’s.

The court’s ruling in this case is good news for employers.  Employers should use this case as a reminder of the importance of having a carefully analyzed comprehensive written job description for all positions, clearly identifying essential functions of the position.  In addition, if essential functions of a position change over time, it is important to make appropriate revisions to the written job description for the position.

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2013 ADA Pool Lift Compliance Deadline: Has Your Business Complied?

The National Law Review recently published an article by Tara L. Tedrow with Lowndes, Drosdick, Doster, Kantor & Reed, P.A. regarding, Pool Lifts:

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January 31, 2013 marks the date for compliance with the Americans with Disabilities Act (“ADA”) Standards for Accessible Design related to installing fixed pool lifts for swimming pools, wading pools and spas.  Though the Department of Justice (“DOJ”) previously changed its hard deadline for compliance with the installation requirements from March 15, 2012 to January 31, 2013, entities covered by Title III of the ADA should not rely on any more extensions.  If complying with the new ADA requirements fell off your to-do list, it’s time to start planning.

Here are a few questions to ask yourself when understanding how these rules could affect you:

Are you a Title III entity?

Whether you even have to worry about the fixed pool lift requirements depends on whether you are a Title III entity.  Title III prohibits discrimination on the basis of disability by places of public accommodation, including many private businesses, and places with accessibility requirements on such businesses.  Title III entities are businesses such as a hotel and motel, health club, recreation center, public country club or other business that has swimming pools, wading pools and spas.  If you fall under that category, the 2010 Standards apply.

What is this pool lift requirement? 

The 2010 Standards require that newly constructed or altered swimming pools, wading pools, and spas have an accessible means of entrance and exit to pools for those people with disabilities.  However, providing accessibility is conditioned on whether providing access through a fixed lift is “readily achievable.”  The technical specifications for when a means of entry is accessible are available on the DOJ website. Other requirements, based on pool size, include providing a certain number of accessible means of entry and exit, which are outlined in Section 242 of the Standards.  However, businesses should consider the differences in application of the rules depending on whether the pool is new or altered, or whether the swimming pool was in existence before the effective date of the new rule.  Full compliance may not be required for existing facilities; Section 242 and 1009 of the 2010 Standards outline such exceptions.

What exactly is a “fixed pool lift”?

A fixed lift is one that is attached to the pool deck or apron in some fashion.  Conversely, a non-fixed lift is not attached in any way.  Many businesses with pools have purchased or own portable (i.e. non-fixed) pool lifts.  If that portable lift is attached to the pool deck, then it could be considered a fixed lift and compliant under the rules.  Thus, owners of a portable lift may be able to comply with the ADA requirements by affixing lifts to the pool deck or apron.  Moreover, owners of such portable lifts will be required to affix the lifts as a means of compliance if it is readily achievable.  This exception for certain non-fixed lifts stemmed from confusion over the new regulations, spurring the DOJ to grant exceptions to certain entities that purchased an otherwise compliant non-fixed lift before March 15, 2012.  Those exceptions apply only if the non-fixed lifts comply with the 2010 Standards and if the owners keep the portable lifts in position for use at the pool and operational during all times that the pool is open to guests.

What is the “readily achievable” standard?

The ADA does not require providing access to existing pools through a fixed lift if it is not “readily achievable,” meaning that providing access is easily accomplishable without much difficulty or expense.  The DOJ has specified that this standard is a flexible, case by case analysis, so that the ADA requirements are not unduly burdensome.  However, businesses cannot simply claim that installing a fixed pool lift is not readily achievable.  Rather, factors such as the nature and cost, the overall financial resources of the site and the effect on expenses and resources are all considered and evaluated when determining the application of the standard. Though for some businesses immediate compliance may seem impossible because of issues such as the backorder on pool lifts, it is not a valid excuse for non-compliance.  Businesses are still required to comply with the 2010 Standards through other means, as specified in the Standards.

Should I shut my pool down if I haven’t complied?

If accessibility is not readily achievable, businesses should develop plans for providing access into the pool when it becomes readily achievable in the future.  Businesses that are worried about their current status of compliance should consult with legal counsel or call the ADA Information Line to speak with an ADA Specialist regarding any further questions.

Though compliance to the pool lift requirements may seem onerous, it is necessary to prevent legal and financial liability on the part of a Title III covered business.  These requirements also potentially affect tax breaks under the IRS Code, insurance coverage, ongoing maintenance and accessibility obligations and staff training requirements, all of which are even more of a reason to take compliance seriously.

© Lowndes, Drosdick, Doster, Kantor & Reed, PA

EEOC Releases Q&A Fact Sheet On Application of Title VII and ADA to Victims of Domestic Violence, Sexual Assault, and Stalking

Recently, The National Law Review published an article by R. Holtzman Hedrick of Barnes & Thornburg LLP regarding Domestic Violence Victims:

 

The Equal Employment Opportunity Commission’s (EEOC) most recent official guidance involves the application of federal anti-discrimination laws to employees and applicants who have experienced domestic or dating violence, sexual assault, or stalking. The Q&A Sheet can be found here. 

Because victims of these offenses are not explicitly protected under federal law, employers may not realize certain employment decisions can run afoul of Title VII (prohibits discrimination on the basis of sex and sex stereotyping, among other categories) or the Americans with Disabilities Act (ADA).  Examples that might lead to charges of discrimination under Title VII include:

  • Terminating an employee after learning she has been the subject of domestic violence because the employer fears the possible “drama battered women bring to the workplace.”
  • Failing to select a male applicant after learning applicant obtained a restraining order against his male domestic partner because hiring manager believes men can’t be victims of domestic violence and should be able to protect themselves.
  • Allowing males a leave of absence to appear in court for the prosecution of an assault, but denying females leave to testify in domestic violence case.  Employer believes the former to be a “real crime” while the latter is “just a marital problem.”

The ADA prohibits discrimination based on actual or perceived impairments, and one can easily foresee situations when domestic/dating violence or sexual assault can result in such impairments.  Examples where employers may be found liable for unlawful disability discrimination under such circumstances include:

  • Deciding not to hire applicant employer discovers is the complaining witness in a rape prosecution and has seen a therapist for depression because employer believes applicant may need time off in the future to deal with symptoms or for counseling sessions.
  • Failing to address and stop harassment by co-workers regarding employee with facial scars/skin grafts resulting from attack by former domestic partner.
  • Failing to accommodate an employee not eligible for FMLA leave by refusing to give her time off to seek treatment for depression and anxiety following a sexual assault.  The employer tries to justify the refusal by stating that leave and attendance are uniformly applied to all employees.
  • Failing to honor an employee’s request for reassignment to available vacant position at different location for which she is qualified when ex-boyfriend who currently works in the same building is stalking her, causing her major depression.  Employer cites “no transfer” policy as reason for refusal.
  • (Supervisor) disclosing to other co-workers an employee’s post-traumatic stress disorder resulting from incest.

Although these are the examples given by the EEOC, indirect discrimination allegations under Title VII and the ADA can arise in numerous situations that would not necessarily be readily apparent to even well-trained and sophisticated employers. Of course, it is always a good idea to seek guidance from experienced employment counsel when employers are given pause about an employment decision, even when the employer is not entirely sure why they might be hesitating.

© 2012 BARNES & THORNBURG LLP

U.S. Department of Justice Postpones ADA Requirements for Swimming Pools and Spas

Recently The National Law Review published a paper by the Labor and Employment Law Department of Barnes & Thornburg LLP regarding the ADA Requirements for Pools and Spas:

On March 20, 2012, the U.S. Department of Justice (the Department) announced an immediate 60-day postponement of the effective date for the accessibility requirements for pools and spas subject to either Title II (state and local government programs) or Title III (places of public accommodation). These requirements will now take effect on May 21, 2012.

The Department also is contemplating further extending the effective date, and simultaneously issued a Notice of Proposed Rulemaking (NPRM) soliciting public comment as to whether the effective date of the pool and spa requirements should be postponed until Sept. 17, 2012, 180 days from the original effective date. The Department indicated that it was taking this action in order to allow pool owners and operators additional time to address certain misunderstandings regarding these requirements and their application to existing pools and spas.

On Sept. 15, 2010, the Department adopted the 2010 ADA Standards for Accessible Design (2010 Standards), which took effect on March 15, 2012. The 2010 Standards contain requirements for accessible means of entry into and exit from swimming pools and spas as follows:

  • Swimming pools with at least 300 linear feet of pool wall must provide two accessible means of entry and exit from the pool.  At least one means of entry and exit must be either a sloped entry (i.e., ramp) or pool lift that complies with the requirements set forth in Section 1009 of the 2010 Standards.  The second means of entry and exit can be either a transfer wall, transfer system or pool stairs.  (Wave action pools, leisure rivers, sand bottom pools and other pools with only one area for entry are required to provide only one accessible means of entry and exit.)
  • Swimming pools with less than 300 linear feet of pool wall are required to provide only one accessible means of entry and exit, provide that means is either a sloped entry or pool lift.
  • Only one accessible means of entry and exit is required into spas. This means of entry and exit must be either a pool lift, transfer wall or transfer system.  Furthermore, where more than one spa is provided in a cluster, only five percent (5%) of the spas are required to have an accessible means of entry and exit.

On Jan. 31, 2012, the Department issued technical guidance with respect to these requirements, in particular the manner in which they pertain to existing pools and spas.  See “ADA 2010 Revised Requirements: Accessible Pools – Means of Entry and Exit,” available athttp://www.ada.gov/pools_2010.htm ). Use of pool lifts generally is the most convenient method for providing access to existing pools and spas. In its technical guidance and in subsequent correspondence further explaining the pool requirements, the Department indicated that under Title II (state and local government programs), access could be provided through the use of portable pool lifts.  Under Title III, however, the Department indicated the pool lift must be fixed, or at least capable of being affixed to the pool deck or apron when in use; use of portable lifts is permitted only if provision of a fixed lift is not readily achievable. This difference stems from the fact that unlike Title III, which requires the removal of physical barriers to access where readily achievable, Title II permits state and local programs to provide access to existing facilities via alternative methods, including the purchase of equipment, in lieu of making structural modifications. Whether covered under Title II or Title III, however, newly constructed pools must comply with the 2010 Standards, and altered pools must comply to the maximum extent feasible.

In its technical guidance, the Department also indicated that pool lifts must be in place during the hours the pool or spa is open.  Where a facility has multiple pools or spas that are required to be accessible, a pool lift cannot be shared among the pools and spas, unless providing multiple lifts creates an undue burden.

Following issuance of the technical guidance, certain pool owners and operators expressed concern over its substance and urged the Department to permit the use of portable lifts under Title III and to permit pool lifts to be shared among pools.  They also raised safety concerns regarding the Department’s position that pool lifts must be in place during the hours the pool or spa is open.

In issuing its NPRM to further extend the effective date of the pool and spa requirements, the Department emphasized that it will not revisit the merits of the accessibility requirements for pools and spas.  Public comments on the issue of whether the effective date of these requirements should be further extended to Sept. 17, 2012 must be submitted no later than April 4, 2012.

© 2012 BARNES & THORNBURG LLP

Illinois Federal Court Sides With Circuits Allowing Non-Disabled Individuals to Bring ADA Claims

The National Law Review published an article by the Labor & Employment Group of Schiff Hardin LLP regarding ADA Claims:

An Illinois federal court recently decided that it could be unreasonable for an employer to require an employee take a mental health exam as a condition of keeping his job, and allowed a former employee’s claim to proceed to trial. Sanders v. Illinois Dept. of Central Management Services, 2012 WL549325 (C.D.Ill. Feb. 21, 2012).

The Illinois Department of Central Management Services (the “Department”) employed Michael Sanders as a data processing technician. In 2005, Mr. Sanders was disciplined with suspension for various infractions including not following procedures, leaving his work station and sending an email to his supervisor, Victor Puckett, accusing him of being racist and needing mental health treatment. Thereafter, on August 26, 2005, Mr. Sanders accused Mr. Puckett of screaming, cursing and threatening to throw him out the window during a work dispute, which Mr. Puckett disputed. Mr. Sanders was disciplined for the August 26 incident. On September 9, 2005, the union representative at the pre-disciplinary hearing relating to the August 26 incident notified the Department that Mr. Sanders had threatened to harm Mr. Puckett (which Mr. Sanders disputed).

A.    The Discharge Decision

Thereafter, the Department placed Mr. Sanders on administrative leave and directed him to undergo an independent psychological evaluation, but Mr. Sanders did not attend any of the three appointments made for him. The Department initially terminated Mr. Sanders on November 23, 2005 for not undergoing the psychological exam, but voluntarily reinstated him and placed him on administrative leave effective February 1, 2006. During his leave, the Department made additional appointments for him to undergo an independent psychological evaluation, but Mr. Sanders did not attend any of them.

In January, 2007, the Office of Executive Inspector General (“OEIG”) determined that there was no evidence that Mr. Sanders violated Department rules during the August 26, 2005 incident. The Department scheduled another appointment for an independent psychological evaluation on September 5, 2007. Mr. Sanders sent two memos to the doctor who was to examine him, threatening to take legal action, disciplinary action and contact the media if the doctor did not cancel the appointment.

Mr. Sanders was discharged for refusing to undergo the independent psychological examination. He appealed his termination to the Illinois Civil Service Commission. The Commission found that it was not reasonable for the Department to require Mr. Sanders to submit to an independent psychological examination, and the Department’s decision to discharge Mr. Sanders was unsupported, based on a number of factors including that the Department had not interviewed Mr. Sanders to obtain his version of events relating to the alleged incidents, and also that, according to the Commission, there was no “credible evidence” that Mr. Sanders had threatened Mr. Puckett. The Department’s appeals of that decision to the Commission and the circuit court were denied.

B.     The ADA Suit

Thereafter, Mr. Sanders filed suit against the Department in Illinois federal court alleging violation of the Americans with Disabilities Act (“ADA”). The court allowed Mr. Sanders’ suit to proceed to trial on the question of whether Mr. Sanders’ discharge for refusal to undergo a psychological examination violated the ADA. The court noted that an employer’s demand that an employee submit to a medical exam may be permissible if the employer has a reasonable belief that the employee’s ability to perform essential job functions is impaired by, or the employee poses a direct threat due to, a medical condition. Here, however, the court focused on the OEIG’s finding that there was no evidence that Mr. Sanders violated the Department’s rules during the August 26, 2005 incident, and held that a jury should decide if it was reasonable for the Department to continue to schedule the psychological exams for Mr. Sanders after the OEIG’s determination. The court also noted that what may be reasonable in some employment settings, such as law enforcement or school personnel, may not be reasonable in others.

The case is significant because the district court in this case joined a number of federal circuit courts that allow a non-disabled individual to bring suit under the ADA, including the U.S. Courts of Appeal for the Ninth and Tenth Circuits. The Seventh Circuit has not ruled on the issue. Here, the court did not even consider the question of whether the plaintiff was a qualified individual with a disability under the ADA.

The case reinforces that any request for a physical or mental examination must be carefully examined for necessity and job-relatedness. It also highlights the importance of conducting thorough investigations into alleged instances of misconduct before taking any employment actions.

© 2012 Schiff Hardin LLP

Second Circuit Finds that Employers May be Obligated to Accommodate a Disabled Employee's Commute

Posted in the National Law Review an article by attorneys James R. Hays, Jonathan Sokolowski and James R. Hays of Sheppard Mullin Richter & Hampton LLP regarding disabled employees and employers requirements to assist them:

 

The Second Circuit Court of Appeals has held that under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act, employers may be required to assist disabled employees with their commute.

In Nixon-Tinkelman v. N.Y. City Dep’t of Health & Mental Hygiene, No. 10-3317-cv, 2011 U.S. App. LEXIS 16569 (2d Cir. N.Y. Aug. 10, 2011), plaintiff Barbara Nixon-Tinkelman (“Plaintiff”), who has cancer, heart problems, asthma, and is hearing impaired, brought suit under the ADA and the Rehabilitation Act alleging that the New York City Department of Health & Mental Hygiene (“Defendant” or “DOHMH”) failed to reasonably accommodate her disability. Specifically, following her transfer from Queens to Manhattan, Plaintiff requested that DOHMH accommodate her commute by transferring her back to an office location closer to her home in Queens. DOHMH ultimately denied Plaintiff’s request.

The Southern District of New York dismissed Plaintiff’s complaint on Defendant’s motion for summary judgment, finding that activities which “fall outside the scope of the job, like commuting to and from the workplace, are not within the province of an employer’s obligations under the ADA and the Rehabilitation Act.” However, on appeal, the Second Circuit faulted the district court’s holding, explaining that certain circumstances may require an employer to provide commuting assistance to a disabled employee, and furthermore, that providing such assistance is not “inherently unreasonable.” Accordingly, the Second Circuit remanded the case to the district court, and tasked it with engaging in the “fact-specific inquiry” necessary to determine whether it would have been reasonable to provide Plaintiff with a commuting accommodation. On remand, the Second Circuit directed the district court to consider the following factors: (a) Defendant’s total number of employees; (b) the number and location of Defendant’s offices; (c) whether other positions exist for which Plaintiff was qualified; (d) whether Plaintiff could have been transferred to a more convenient office without unduly burdening Defendant’s operations; and (e) the reasonableness of allowing Plaintiff to work from home without on-site supervision.

In addition to the above-listed factors, the Second Circuit also noted that the district court should have contemplated whether transferring Plaintiff “back to Queens or another closer location, allowing her to work from home, or providing a car or parking permit” would have accommodated her needs.

Nixon-Tinkelman serves as a reminder to employers that they must carefully assess all requests for reasonable accommodations from disabled employees. Although employers are not required to provide the specific accommodations employees may request, they must nevertheless work with employees to determine what reasonable accommodations, if any, can be made.

Copyright © 2011, Sheppard Mullin Richter & Hampton LLP.