September 2017
Volume 12 Issue 6 
 
 
 

Trainings & Events

AccessibilityOnline Webinar Series
Looking Ahead - "Frontier Accessibility Issues"
December 7th, 2017 1:30-3:00 CT.

Access Board members and staff continue to examine future trends, new products, and designs in terms of their impact on communication and facility access for persons with disabilities. This session will review some of the more recent trends and technologies that have caught the Board's attention. Some examples include prescription drug labeling, electric car charging stations, and adult changing tables. Session participants are encouraged to provide questions in advance about a future trend or technology.

Speakers:
Bill BottenAccessibility Specialist/Office of Technical and Information Services, US Access Board

For more information visit AccessibilityOnline at http://www.accessibilityonline.org or call (877) 232-1990
Accessible Technology Webinar Series
Planning & Producing Accessible Videos for Web, Social Media & eLearning
July 20th, 2017 1-2:30 CT.
Want to create accessible videos? It all comes down to planning. Regardless of the final location (web, social media, eLearning…) videos require key components to enable everyone to access them. Learn about best practices for captioning and audio description; accessibility issues with video players; and what to consider as you plan your project.

Speakers:
Jennie Delisi Accessibility Analyst, Office of Accessibility
Jay Wyant Chief Information Acessibility Officer,Minnesota State CIO Office

For more information visit Accessible Technology at http://www.accessibilityonline.org/ada-tech or call (877) 232-1990
Section 508 Webinar Series
Revised Section 508 Chapter 4 Hardware (including Mobile)
July 26th, 2017

The revised Section 508 Standards and Section 255 Guidelines address many changes to technology that have occurred since 2000. Among the most significant changes are the widespread use of mobile technology and the increasing use of mobile devices to perform a variety of ICT functions.

Join us for this session where the presenters will focus on Chapter 4 Hardware. The presenters will discuss Closed Functionality, the new requirements for speech-output for ICT with display screens, privacy, operable parts, ICT with two-way voice communication, closed caption and audio description processing technologies and user controls and others. The presenters will also discuss sources for technical assistance and provide examples of how the hardware provisions may be implemented.

WHO SHOULD ATTEND: The intended audience for this training includes developers, federal procurement officials and everyone involved with implementing Section 508.


Speakers:
Bruce Bailey,Accessibility Specialist/Information Technology Specialist,US Access Board
Timothy Creagan ,Senior Accessibility Specialist/Information Technology, U.S. Architectural and Transportation Barriers Compliance Board (the Access Board)

For more information visit Section 508 at https://www.accessibilityonline.org/cioc-508/ or call (877) 232-1990
ADA Legal Webinar Series
Readily Achievable Barrier Removal Issues - focusing on small to mid-sized businesses

Removing barriers in existing facilities is an ongoing responsibility for many business owners. However, in recent years we have seen a steady increase in the number of Title III Lawsuits in the U.S. aimed at small businesses. At the heart of many cases are issues involving readily achievable barrier removal. Attorney Diego Demaya with the Southwest ADA Center will discuss readily achievable barrier removal requirements for businesses under ADA Title III. This session will review recent cases and how those decisions affect businesses and consumers as well as provide recommendations for how business owners can comply without much difficulty or expense. A legal update addressing so-called drive-by lawsuits will be provided including a look at developments such as the 99 drive-by lawsuits recently dismissed in the state of New Mexico.

Speakers:
Diego Demaya , JD, Legal Specialist, Southwest ADA Center at ILRU

For more information visit ADA Legal at http://www.ada-legal.org/ or call (877) 232-1990
AccessibilityOnline Webinar Series
Surface Roughness and Rollability Research
August 3rd, 2017 1:30-3:00 CT.

Rough and uneven surfaces can be uncomfortable, even painful, for people who use wheeled mobility aids. While there are ways to measure and analyze surface roughness for roadways, none are appropriate for pedestrian pathways. The Access Board funded a study that used subject testing to examine how the roughness of pathway surfaces impacts wheelchair travel. Conducted by the Human Engineering Research Laboratories at the University of Pittsburgh, the project measured body vibrations resulting from travel across various types of bumpy or uneven surfaces, including existing sidewalks and simulated surfaces. Results from this research were used in the development of a new ASTM standard on pedestrian surfaces. This session will discuss the research findings and the new ASTM standard.

Speakers:
Jon Pearlman Senior Accessibility Specialist/Coordinator of Public Affairs, US Access Board, Office of Technical and Information Services
Scott Windley Accessibility Specialist, Office of Technical and Information Services

For more information visit AccessibilityOnline at http://www.accessibilityonline.org or call (877) 232-1990
AccessibilityOnline Webinar Series
Open Q & A
September 7th, 2017

This is a regular session in our webinar series that provides an opportunity to ask questions on any topic related to the Board's work and activities. Questions are welcome on the Board's accessibility requirements and rulemaking activities, including the ADA and ABA Accessibility Standards, new standards being developed for medical diagnostic equipment, and other topics related to the Board's work. Accessibility specialists will answer questions submitted in advance during the first half of the session, leaving time in the second half to answer questions in the live session.

Speakers:
Marsha Mazz Director, Office of Technical and Information Services, US Access Board
Rex Pace Senior Accessibility Specialist and Technical Assistance Coordinator,US Access Board

For more information visit AccessibilityOnline at http://www.accessibilityonline.org or call (877) 232-1990
ADA Legal Webinar Series
Readily Achievable Barrier Removal Issues - focusing on small to mid-sized businesses
Reasonable Accommodation Update

Providing reasonable accommodations so that employees with disabilities can perform the essential functions of the job is one of the cornerstones of the ADA. However, the process for obtaining and providing reasonable accommodations can be confusing for employees and employers. This session will review the latest reasonable accommodation court decisions so that all stakeholders can better understand their rights and responsibilities.
Speakers:
Barry Taylor , Director of Legal Services,Equip for Equality
Rachel Weisberg , Staff Attorney, Equip for Equality

For more information visit ADA Legal at http://www.ada-legal.org/ or call (877) 232-1990
 

News from the Federal Agencies

U.S. Equal Employment Opportunity Commission (EEOC)

EEOC Dramatically Reduces Charge Inventory

The U.S. Equal Employment Opportunity Commission (EEOC) made significant progress in managing the pending inventory of charges in fiscal year 2017. EEOC offices deployed new strategies to more efficiently prioritize charges with merit and more quickly resolve investigations once the agency had sufficient information. Together with improvements in the agency's digital systems, these strategies produced an increase in charge resolutions and a significant decrease in charge inventory. As a result, in fiscal year 2017 the EEOC resolved 99,109 charges and reduced the charge workload by 16.2 percent to 61,621, the lowest level of inventory in 10 years. Additionally, during the fiscal year, the EEOC handled over 540,000 calls to the toll-free number and more than 155,000 contacts about possible charge filing in field offices, resulting in 84,254 charges being filed.

Read More about the EEOC Dramatically Reduces Charge Inventory

EEOC Launches Online Services for Inquiries, Appointments and Discrimination Charges

The U.S. Equal Employment Opportunity Commission (EEOC) launched an EEOC Public Portal to provide online access to individuals inquiring about discrimination. "This secure online system makes the EEOC and an individual's charge information available wherever and whenever it is most convenient for that individual," said EEOC Acting Chair Victoria A. Lipnic. "It's a giant leap forward for the EEOC in providing online services."

Read More about the EEOC Launches Online Services for Inquiries, Appointments and Discrimination Charges

Phoebe Putney Hospital Sued by EEOC For Disability Discrimination

Phoebe Putney Memorial Hospital, a regional medical center located in Albany, Ga., violated federal disability discrimination law when it fired an employee after she requested leave due to her medical condition, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. According to the EEOC's suit, in May 2016, Phoebe Putney discharged Medical Records Analyst Wendy Kelley rather than grant her request for a reasonable accommodation in the form of leave to receive treatment for her medical condition. Kelley was fired within days of requesting two weeks of medical leave to comply with her doctor's restrictions that she not work during that time. Due to her condition, Kelley fainted at the hospital's facility on the way to meet with her supervisor about her request for leave. Instead of rescheduling the meeting, Phoebe Putney denied Kelley's request for leave and terminated her employment.

Read More about the Phoebe Putney Hospital Sued by EEOC For Disability Discrimination

Kaiser Aluminum Settles EEOC Disability Discrimination Lawsuit

Kaiser Aluminum Corporation, the leading producer of fabricated aluminum products in the United States, will pay $175,000 and reinstate its hiring offer to a qualified production worker to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced. According to the EEOC's suit, Kaiser withdrew its job offer for production work at its Trentwood mill in Spokane after Donald McMurray's medical records showed a workplace injury from over 10 years ago.

Read More about the Kaiser Aluminum Settles EEOC Disability Discrimination Lawsuit

Jones Lang LaSalle Americas Sued by EEOC for Disability Discrimination

The Atlanta office of a commercial real estate and investment management company headquartered in Chicago violated federal law by discriminating against a job applicant because of her disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. According to the EEOC's lawsuit, Jones Lang LaSalle Americas, Inc. (JLL), violated federal law when it rescinded a job offer to a development and asset strategy production support analyst position in April 2016 after the applicant disclosed her diagnosis of post-traumatic stress disorder (PTSD) and requested to work remotely once per week to attend medical appointments related to her disability.

Read about the Jones Lang LaSalle Americas Sued by EEOC for Disability Discrimination

U.S. Department of Justice (DOJ)

Settlement Agreement between the United States and Chariot Transit Inc.

Chariot Transit, Inc. has entered a landmark settlement agreement with the United States Attorney's Office to resolve allegations that the San Francisco-based company violated Title III of the Americans with Disabilities Act (ADA) by discriminating against customers with disabilities, announced United States Attorney Brian J. Stretch. As part of the settlement, Chariot will pay a $50,000 civil penalty to the United States and take numerous steps to ensure that it provides equivalent service to individuals with disabilities.

Read the Settlement Agreement between the United States and Chariot Transit Inc.

Settlement Agreement between the United States and Valley Hope Association

This agreement resolves a title III complaint filed with the Justice Department alleging discrimination on the basis of an individual being HIV positive. Valley Hope Association, operating residential addiction facilities, had a policy requiring persons that are HIV positive to room alone. Additionally, persons that are HIV positive were not allowed to work in the facilities kitchen when other patients were allowed to do so. For the duration of the agreement and within 21 days of receipt of any written or oral complaint made to Valley Hope alleging discrimination based on HIV or AIDS, Valley Hope will send written notification to the Justice Department with a copy of any such written complaint and a complete copy of Valley Hope's response. Within 30 days of the effective date of the Agreement, Valley Hope will submit a draft non-discrimination policy to the Justice for its review and approval. The non-discrimination policy will state that Valley Hope does not discriminate in the provision of services to persons with disabilities, including persons who have HIV or AIDS. The non-discrimination policy will also direct those with questions, concerns, or complaints about how to make contact with Valley Hope regarding those issues.

Read the Settlement Agreement between the United States and Valley Hope Association

Settlement Agreement between the United States and the City of New Albany, Indiana

The Department of Justice announced that it reached an agreement with the city of New Albany, Indiana (New Albany), to resolve its lawsuit alleging that the New Albany Police Department and Merit Commission discriminated against an employee on the basis of his disability, in violation of the Americans with Disabilities Act (ADA).

Read the Settlement Agreement between the United States and the City of New Albany, Indiana

Settlement Agreement between the United States and Bar-T Round Programs for Kids

The Justice Department announced today that it reached an agreement with Bar-T Year Round Programs for Kids (Bar-T), located in Montgomery County, Maryland, to remedy alleged violations of the Americans with Disabilities Act (ADA). Title III of the ADA prohibits public accommodations, including child care centers, from discriminating against individuals with disabilities and those associated with them. Bar-T is the largest provider of before and after school programs in Montgomery County, operating at approximately 30 Montgomery County public school locations.

Settlement Agreement between the United States and Bar-T Round Programs for Kids

Settlement Agreement between the United States and the Park School

The United States Attorney's Office reached a settlement agreement with the Park School, resolving allegations that the school violated Title III of the Americans with Disabilities Act (ADA) by discriminating against a student with a disability. The Park School is an independent school in Brookline that serves over 560 students from pre-kindergarten through eighth grade. After conducting an investigation, the U.S. Attorney's Office determined that Park School violated Title III of the ADA by denying a prospective student with a disability admission to the school without making an appropriate, individualized assessment of the school's ability to accommodate the student. U.S. Department of Justice (DOJ)

Settlement Agreement between the United States and the Park School

Great Lakes In Focus

Move on if employee won't discuss ADA accommodation

Business Management Daily

Employers are supposed to engage in the interactive accommodations process with disabled workers to arrive at workable accommodations. But what if the employee stops communicating with HR about suggested accommodations? Then it is time to move on after documenting your engagement efforts.

Recent case:

Mary asked for reasonable accommodations for a disability. But soon, the employer's suggestions were met with silence. It documented its efforts and then stopped trying to communicate with Mary. She sued, alleging failure to accommodate. The court dismissed the case, since Mary failed to engage in the interactive process. (Phillips v. Victor Community Support Services, 9th Cir., 2017)

Final note:

Always document the initial accommodation request and each contact with the employee and other parties. Be specific. What accommodation did you offer? What was the response? Was there a counter suggestion?

Source: Business Management Daily


The Docket

McFarland v City and County of Denver, DColo, September 5, 2017, Tafoya, K

A job applicant that was blind failed to communicate with her prospective employer regarding the difficulties of the employer's required computer testing. As a result she interrupted the ADA's interactive process, a federal magistrate judge in Colorado ruled. The Magistrate found that the applicant was precluded from claiming the municipal employer failed to provide a reasonable accommodation. "To hold otherwise," wrote the magistrate "would allow per se liability against an employer each time the initial accommodation provided is ultimately unsuccessful, or ineffective, in enabling the employee to perform the requisite job functions. The ADA's interactive process does not contemplate such liability and the court declines to permit it here."

From the ADA Expert

Question1:
Does ADA require employers to provide leave beyond FMLA?

Answer:
ADA Does Not Require Employers to Provide Multi-Month Leave Beyond Expiration of FMLA Leave - Seventh Circuit - Lexology. This week the 7th Circuit Court of Appeals issued a decision helpful to employers grappling with whether they must extend an employee's time off following the expiration of Family and Medical Leave Act (FMLA) leave as a reasonable accommodation under the Americans with Disabilities Act (ADA). See Severson v. Heartland Woodcraft, Inc., No. 15-3754, 2017 WL 4160849 (7th Cir., Sept. 20, 2017).

In Severson, the court found that "[a] multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA." Plaintiff, Severson, had a physically demanding job working for a fabricator of retail display fixtures. Severson took twelve weeks of FMLA leave due to serious back pain. During his leave, he scheduled back surgery (to occur on the last day of his FMLA leave), and requested an additional three months of leave. Defendant, Heartland, denied Severson's request to continue his medical leave beyond the FMLA entitlement, terminated his employment, and invited him to reapply when he was medically cleared to work. Instead, Severson sued, alleging disability discrimination.

In affirming summary judgment in favor of the employer, the 7th Circuit noted that "[t]he ADA is an antidiscrimination statute, not a medical-leave entitlement." Following its earlier decision in Byrne v. Avon Prods., 328 F.3d 379 (7th Cir. 2003), the court also stated that "an employee who needs long-term medical leave cannot work and thus is not a 'qualified individual' under the ADA." In other words, "an extended leave of absence does not give a disabled individual the means to work; it excuses his not working." Id. Simply put, offering a reasonable accommodation does not require absolving the employee from performing the essential functions of the position.

In support of the employee in Severson, the Equal Employment Opportunity Commission (EEOC) argued that a long-term medical leave of absence - beyond that required by the FMLA - should qualify as a reasonable accommodation if it is for a definite time period, is requested in advance, and would enable the employee to perform his or her job on return from leave. (The EEOC's general position regarding Granting Leave as Reasonable Accommodation is available here: Employer-Provided Leave and the Americans with Disabilities Act (May 9, 2016).) Rejecting this argument, the Seventh Circuit found that the EEOC's interpretation would effectively transform the ADA into an open-ended extension of the FMLA.

While employers can be encouraged by the 7th Circuit's ruling in Severson, they should continue to conduct an individualized, fact-specific inquiry into any particular employee's request for accommodation, including a leave of absence. In this regard, the court was careful to note that intermittent leave, such as for conditions that may require periodic time off due to flare-ups, and even short leaves of absence, "say, a couple of days or even a couple of weeks," could be considered reasonable accommodations in certain circumstances.

Bryan Cave LLP - Tamara Koury and Christy E. Phanthavong

For additional information regarding the employment provisions of the ADA contact the Great Lakes Center by calling (800) 949-4232 (V/TTY) or via our Online Contact Form.

For more information please call 800-949-4232 (Voice/TTY) or Online via Contact Us form.

Great Lakes ADA Center
University of Illinois at Chicago
Department of Disability and Human Development (MC 728)
1640 West Roosevelt Road, Room 405
Chicago, Illinois 60608-6904
 
 
 
 

Last Updated on:
Mon Dec 4, 2017