In a previous blog entry, it was mentioned that the Department of Justice (“DOJ”) was expected to announce its amendments to the regulations implementing titles II and III of the ADA, which require web site accessibility for disabled persons, in the Spring of 2016.
However, in its Fall 2015 Statement of Regulatory, the DOJ has announced that while it expected to publish the Title II Notice of Proposed Rulemaking early in the 2016 fiscal year, it does not expect to publish the Title III Notice of Proposed Rulemaking until the 2018 fiscal year.
While the proposed amendments to these regulations have not yet been published, employers must remember that website accessibility for disabled persons is required under the Americans with Disabilities Act. Specifically, employers are required to make their websites accessible to individuals with disabilities. Additionally, the DOJ has been actively prosecuting website accessibility cases and has taken the position that all websites should be accessible.
The EEOC recently filed a lawsuit against a temporary labor agency because they violated the Americans with Disabilities Act, (ADA) when they refused to hire a recovering addict because of her disability.
According to the charges filed by the EEOC, the applicant (Ms. Cox) has been in a medically supervised rehabilitation program for four years and has not used illegal drugs since enrolling in the program. As part of her rehabilitation program, Ms. Cox uses medically prescribed methadone.
In January of 2015, Ms. Cox applied for an open production labor position with a client of the staffing agency. During the application/interview process, the manager told Ms. Cox that she had enough experience to advance to the next step of the hiring process, which included a pre-employment drug test. Ms. Cox was then given a cup and asked to provide a urine sample.
After giving the sample, Ms. Cox disclosed to the hiring manager that she was in a medically supervised methadone treatment program. The hiring manager took the cup back and said “I’m sure we don’t hire people on methadone, but I will contact my supervisor.” The applicant repeatedly called back informing the hiring manager that she did not have any medical restrictions from performing the labor position. Yet, the company refused to hire Ms. Cox because she used methadone.
In commenting on this case, the EEOC Regional Attorney Debra M. Lawrence stated, “Medically prescribed methadone is a common and safe treatment for people recovering from drug addiction. The Commission will take action if an employer refuses to hire a qualified applicant based on unwarranted or speculative fears or biases about her disability or her medically supervised drug rehabilitation.”
The take-home lesson for employers — if your company uses pre-employment drug testing during the hiring process, an applicant’s medically supervised drug rehabilitation is a protected disability that cannot be the basis for refusing to hire an otherwise qualified applicant. Employers should take a careful look at their hiring policies (especially with respect to drug testing) to verify that they are compliant with the ADA.
A disability discrimination charge filed by the U.S. Equal Employment Opportunity Commission (EEOC) challenging the lawfulness of Pactiv LLC’s (a large manufacturer of food service/food package products) attendance policy has resulted in a $1.7 Million Dollar EEOC Class Settlement.
The Company’s attendance policy assessed “attendance points” against employees for all absences — including medical related absences. The policy also prohibited granting employees a leave of absence as a reasonable accommodation for a disability and further prohibited an extension of a protected leave of absence (like FMLA) as a reasonable accommodation for a disability. Finally, the attendance policy in question prohibited intermittent leaves of absence.
Under the attendance policy, when an employee accrued a certain number of attendance points, the employee was disciplined. Ultimately, if an employee accrued enough points, the employee’s employment could be terminated.
The Department of Justice has been promising to answer that question since 2010. Yet, to date, this question remains unanswered.
Title III of the Americans with Disabilities Act (ADA) requires any “place of public accommodation” to be accessible to persons with disabilities. This, arguably, would also include websites that are accessible to the public.
However, the ADA does not clearly define “a place of public accommodation,” but provides a long list of examples found here. All of the listed examples are physical locations which is not surprising since the role of e-commerce has been growing in more recent years and the ADA was enacted in 1990.
The traditional interpretation has been that a website is covered by the ADA only if the website is connected to brick-and-mortar location, for example a retail store that also has online shopping. The trend in the courts is changing to cover more broadly websites that are not associated with a brick and mortar location. In those cases, companies are ordered to make their websites more “accessible,” which (in an “online” context) typically means that the site should provide (a) an audio option for a sight-impaired person to hear a spoken version of text on the screen, and (b) captioning for a hearing-impaired person to read a printed version of audio content.
The ADA is better served by assuring disabled persons access to the online economy. In fact, the Department of Justice is considering making revisions to the regulations that implement Title III of the ADA which would include a requirement that all “online” goods and services that are available to the general public be made equally available to persons with disabilities.
The Department of Justice states that these new regulations are expected in the spring of 2016. If you are an e-commerce business you may want consider making the changes now if it is cost effective. There are service providers who can assist in creating captioning and/or audio options.
On October 2, 2015, the EEOC filed a lawsuit against a promotional marketing company because it refused to provide a reasonable accommodation for an employee with serious allergies.
Amanda Matherly was hired to work as a field representative at Media Star’s Baltimore headquarters. Her duties included going to outdoor festivals gathering contact information and distributing sample products. Amanda has a very severe allergy to peanuts and tree nuts. She must carry medication with her to be given immediately after exposure to prevent going into anaphylactic shock. Without this measure it could cause death the lawsuit states.
Amanda asked the company to reasonably accommodate her disability by providing vinyl gloves for handling company products that may have been exposed to nuts and to alert hotels and airlines of her allergy when making travel arrangements.
The EEOC alleges that the company refused to accommodate her disability and required her to sign a form proclaiming to waive her rights under the ADA. The company then fired her because of her disability and because she refused to sign the waiver of her rights under the ADA.
“Employers simply cannot make employment decisions based on fears or biases about people with disabilities,” said EEOC Philadelphia District Director Spencer H. Lewis, Jr. “It would not have been a significant cost or business disruption for Media Star to reasonably accommodate Ms. Matherly, such as providing her with gloves to prevent exposure to allergens.”
Take home message for employers:
The Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations for employees unless it would cause a significant expense or difficulty for the employer. As evidenced by this case, food allergies can be considered a disability under the ADA. In addition, employers must remember that the ADA’s protections are not waivable. In other words, an employer cannot ask an employee to waive his/her rights under the ADA in order to avoid providing an employee with a reasonable accommodation.
The EEOC recently sued DAP Products for firing an employee because of his prostate cancer. The employee underwent surgery and after a period of leave was capable of safely returning to work. DAP refused to allow him to return, and instead forced him to take extended leave. After not allowing the employee to return to work, the company terminated the employee for having exceeded the company leave limitations. Such alleged conduct violates the Americans with Disabilities (ADA), which requires employers to make reasonable accommodations for employees with known disabilities.
Robert A. Canino, regional attorney for EEOC’s Dallas District, added, “In our society’s fight against cancer, an indiscriminate and cruel disease, we are happily seeing more and more survivors. So companies need to value their employees by continuing to provide them with fair treatment and equal opportunity.”
The definition of a disability under the ADA is very broad and would likely include cancer. Employers should always determine if the employee is qualified to perform the essential functions of the job, with or without an accommodation prior to taking an adverse action. If the employer is unsure whether an impairment is a disability, they can ask for medical certification.
Firing an employee because of a perceived disability, or for having a record of disability, violates Title I of the Americans with Disabilities Act (ADA). The EEOC filed suit (EEOC v. Plasma Biological Services, LLC and Interstate Blood Bank, Inc. d/b/a Plasma Biological Services, Civil Action No. 2:15-cv-02419) and the employer has agreed to settle for $60,000 which includes making significant changes to their employment practices. Press release here. http://www.eeoc.gov/eeoc/newsroom/release/10-27-15.cfm
According to the EEOC’s suit, Plasma Biological Services placed the employee on a deferred donor list after an initial screening for a plasma donation showed a viral marker for human immunodeficiency virus (HIV). After the employee’s supervisor learned that he had been placed on the deferred donor list, the employee was immediately discharged. Subsequent tests showed the employee was actually negative for HIV.
The EEOC also alleged that Plasma Biological Services maintained a policy of terminating any employee who tested positive for a viral marker. It also failed to maintain employee medical records separate from personnel files.
The take away for employers is to:
- Remember to keep employee files and medical records separate
- Managers and supervisors should not refuse to hire or fire any employee for having a disability, a perceived disability or a record of a disability
- Employers should not maintain any policy that denies employees’ rights under the ADA
The ADA defines a person with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activity. Employers should be aware that this also includes anxiety and depression. Employers are also required to provide a reasonable accommodation to employees who are qualified individuals with disabilities unless to do so would cause an undue hardship.
In the case of Hurtt v. International Services, Inc. (6th Cir. Sept. 14, 2015), Hurtt was hired as a business analyst with a $70,000 annual draw and a 12% commission. Additionally, the company prepaid his travel expenses and allowed a $40 per diem food allowance. Several months after Hurtt was hired, he provided a therapist letter stating that he had acute anxiety and depression and he requested FMLA leave. One day after he requested FMLA leave, the company terminated his $70,000 annual draw and placed him solely on commission and also stopped providing prepaid travel expenses. Hurtt quit and sued, claiming constructive discharge under the ADA and FMLA. Case can be found here.
The court ruled that the case could go to trial. The employee made a good faith request for accommodation, which is a protected activity under the ADA. Even though the employee quit, the court ruled that Hurtt’s evidence was sufficient to raise a jury issue of constructive discharge. A jury could find that the change and modification of the employee’s pay and work condition immediately after his request for FMLA could be considered retaliation for requesting leave. An employee may use a constructive discharge claim to show that he or she has suffered an adverse action in violation of the ADA.
Does your organization require pre-employment physicals? Employers are allowed to condition job offers on completion of a medical exam, as long as:
- The employer requires all applicants in that job class to undergo the same medical exam.
- The employer keeps all records confidential.
- The employer does not use the results of a medical exam to discriminate against individuals with disabilities.
In September of 2015, the EEOC filed a lawsuit against Muskegon Family Care, a medical service provider located in Muskegon Heights, MI, for violation of the Americans with Disabilities Act. According to the suit, Avis Lane worked for Muskegon Family Care as an outreach enrollment coordinator for over a month when it terminated her employment based on information obtained during the pre-employment physical.
This situation reminds employers to be cautious in how they implement pre-employment medical exams and only require them if they are job related and consistent with business necessity. The EEOC press release can be found here.
October is the 70th year of National Disability Employment Awareness Month (NDEAM). Each year, NDEAM celebrates the many and varied contributions of America’s workers with disabilities. This year the theme is “My Disability is One Part of Who I Am.” This campaign focuses on what people with disabilities can do at work and the value they bring.
Their website, http://www.whatcanyoudocampaign.org/ also offers ideas and ways you can celebrate.