March 2019
Volume 13 Issue 6 
 
 
 

Trainings & Events

AccessibilityOnline Webinar Series
Accessible Entrances, Doors, and Gates
March 7th, 2019 1:30-2:30 PM CT

Entrances, doors, and gates are key components of access along routes and to buildings, rooms, and spaces. This session will cover scoping and technical requirements in the ADA and ABA Standards for entrances, doors and gates. Presenters will review in detail the specifications for maneuvering clearances at doors using images and animations to better explain the rationale behind these provisions. They will also address recessed doors, automatic doors and gates, doors in a series, door hardware and other topics.

Speakers:
Bill Botten Accessibility Specialist, Office of Technical and Information Services, U.S. Access Board
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
ADA Audio Webinar Series
The Americans with Disabilities Act (ADA) and Web Sites: What is Required
March 19, 2019 1:00 -2:30 PM CT

Many businesses and public entities use their web sites to provide information about programs and services, offer registration, enable visitors to purchase goods and services and much more. How does the ADA apply to these web sites? What makes a web site accessible? Are there ADA standards for web sites? Join us for this informative session as the speaker will address these questions and provide an opportunity for participants to ask their own.

Speakers:
Jared Smith Associate Director, WebAIM

For more information visit ADA Audio at https://www.accessibilityonline.org/ADA-Audio/ or call (877) 232-1990
ADA Legal Webinar Series
What is a Public Accommodation under the ADA?
March 20, 2019 1-2:30 CT.

Title III of the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability in the activities of public accommodations. Public Accommodations are considered to be businesses including private entities that are open to the public or that provide goods or services to the public. While the antidiscrimination provisions under Title III are clear; questions often emerge as to whether or not certain settings in which goods and services are provided would qualify as a public accommodation and therefore be subject to those provisions. This webinar will examine what is covered by Title III of the ADA in terms of what is and is not considered a public accommodation.

Speakers:
Sashi Nisankarao Attorney, Legal Specialist, Southwest ADA Center
George Powers Legal Specialist, Southwest ADA Center

For more information visit ADA Legal at http://www.ada-legal.org/ or call (877) 232-1990
Accessible Technology Webinar Series
What's new with WCAG 2.1?
March 21, 2019 1:00 -2:30 PM CT.

WCAG 2.1 is the new recommendation for organizations looking to address web accessibility. It adds one new guideline and 17 new success criteria that focus primarily on touch inputs that did not exist when WCAG 2.0 was released in 2008. WCAG 2.1 builds on WCAG 2.0 to further consider people using mobile devices, people with low vision, people with cognitive disabilities, and people using speech recognition software. In this session, learn about WCAG 2.1, these new success criteria, and how they might affect your websites.

Speakers:
Melissa Romanotto Accessibility Team, MSF&W Consulting
Nathan Zak Accessibility Team, MSF&W Consulting, Inc.

For more information visit Accessible Technology at http://www.accessibilityonline.org/ada-tech or call (877) 232-1990
Section 508 Best Practices Webinar Series
Accessible Content Shared Through Social Media
March 26, 2019 12:00-1:30 CT.

The use of social media by federal agencies has become widespread across the federal government. Agencies use social media to promote their mission and to engage members of the public. This webinar will cover how federal agencies can implement social media in an accessible manner. Representatives from the National Institutes of Health (NIH) will share their experiences in ensuring access to various social media sites and platforms. NIH maintains over 60 Facebook pages, 40 YouTube channels, 13 Flickr pages, and numerous Twitter accounts.

The presenters will provide an overview of social media techniques, address common questions, review access issues and solutions, and offer best practices and techniques for making content accessible on various social media platforms, including Facebook, Flickr, Google+, Twitter, and YouTube. They will also cover internal guidance that NIH has developed and other resources on the subject that are available

Questions can be submitted in advance of the session or can be posed during the live webinar. This session is intended for those involved in generating social media content for government agencies as well as other entities.

Speakers:
Jennifer Dorsey Social Media Coordinator, NIH National Cancer Institute
Gary Morin Program Analyst, NIH Office of the Chief Information Officer

For more information visit Section 508 Best Practices at https://www.accessibilityonline.org/cioc-508/ or call (877) 232-1990
 

U.S. Equal Employment Opportunity Commission (EEOC)

Herbruck Poultry Ranch Sued by EEOC for Disability Harassment

A Saranac, Mich., egg producer violated federal law by subjecting a worker to a hostile work environment because of her disability and by retaliating against her for complaining about the discriminatory work environment, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed. According to the EEOC's lawsuit, Melinda Crooke was a line worker for Herbruck Poultry Ranch. After her supervisor learned about her disability-related symptoms, she was mocked on a weekly basis by her co-workers and supervisor because of those symptoms.

USA Parking Services to Pay $150,000 to Settle EEOC Disability Discrimination Lawsuit

Parking Services, Inc., a hospitality industry-focused valet and parking company, will pay $150,000 to settle the disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced. According to the EEOC's lawsuit, USA Parking Services, Inc. violated the law by refusing to hire a deaf applicant for a valet attendant position based on the assumption that a deaf person could not perform the essential functions of the job rather than conduct an individualized assessment of his abilities.

East Coast Labor Solutions and Related Staffing Firms to Pay $475,000 to Settle EEOC National Origin and Disability Discrimination Suit

East Coast Labor Solutions, East Coast Labor Solutions of West Virginia, Labor Solutions, and Labor Solutions of Alabama ("East Coast Labor"), four related staffing agencies under common ownership, have agreed to pay $475,000 and furnish significant equitable relief to settle a federal lawsuit alleging national origin discrimination and failure to accommodate disabilities brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced.

EEO-1 Survey for 2018 Will Open Early March 2019

Due to the partial lapse in appropriations, the opening of the EEO-1 has been postponed until early March 2019. The deadline to submit EEO-1 data will be extended until May 31, 2019. The EEO-1 is an annual survey that requires all private employers with 100 or more employees and federal government contractors or first-tier subcontractors with 50 or more employees and a federal contract, sub­contract or purchase order amounting to $50,000 or more to file the EEO-1 report. The filing of the EEO-1 report, is required by federal law per Section 709(c), Title VII of the Civil Rights Act of 1964, as amended; and §1602.7-§1602.14, Title 29, Chapter XIV of the Federal Code of Regulations.

EEOC Sues Massey Services for Disability Discrimination and Retaliation

Massey Services, Inc., a pest control and landscaping company which operates service centers in seven states, violated federal law when it denied an employee's request for medical leave, fired her after learning of her medical condition and subsequently failed to rehire her for the vacant position, the U.S. Equal Employment Oppor­tunity Commission (EEOC) charged in a lawsuit it recently filed.

U.S. Department of Justice (DOJ)

Justice Department Reaches Agreement with Concord, Nh to Ensure Accessible Voting Ballot

The Justice Department announced that it reached a settlement agreement under title II of the ADA with the city of Concord, New Hampshire, regarding the accessibility of its voting system.

The settlement agreement resolves a complaint that Concord failed to provide an accessible ballot in city elections for a voter who is blind. Under the agreement, the city of Concord will provide voting machines that are accessible to voters who are blind or visually impaired. The city will have the accessible machines at all of its polling places starting in the November 2019 city election. In addition, the city will provide training to poll workers on the use of the accessible voting machines and will develop educational materials regarding the availability of the machines in city elections.

Town of Bethlehem Agrees to Increase Accessibility in Order to Comply with Americans with Disabilities Act

John H. Durham, United States Attorney for the District of Connecticut, announced that the U.S. Attorney’s Office has reached a settlement agreement with the Town of Bethlehem, Connecticut, to resolve allegations that Bethlehem’s Town Hall and Memorial Hall buildings were not operating in compliance with the Americans with Disabilities Act of 1990 (“ADA”). The settlement agreement resolves an ADA complaint filed by an individual with disabilities alleging that Bethlehem’s Town Hall and Memorial Hall facilities were not accessible to individuals with physical disabilities.

U.S. Department of Labor (DOL)-Office of Disability Employment (ODEP)

Persons with a Disability: Labor Force Characteristics — 2018

Read the BLS news release

The U.S. Bureau of Labor Statistics (BLS) released the “Persons with a Disability: Labor Force Characteristics — 2018” report. The data on persons with a disability are collected as part of the Current Population Survey (CPS), a monthly sample survey of about 60,000 households that provides statistics on employment and unemployment in the United States. The collection of data on persons with a disability is sponsored by ODEP. The report shows that the annual unemployment rate for persons with a disability dropped to a record low of 8.0% in 2018, down from 9.2% the previous year.

Section 188 Disability Reference Guide

The U.S. Department of Labor's Civil Rights Center published the “Promising Practices in Achieving Nondiscrimination and Equal Opportunity: A Section 188 Disability Reference Guide.” This guide provides updated information and technical assistance that can help American Job Centers and their partners in the workforce development system meet the nondiscrimination and equal opportunity requirements for individuals with disabilities in Section 188 of the Workforce Innovation and Opportunity Act. The Reference Guide includes examples of promising practices that can help promote equal access for individuals with disabilities to the American Job Center (One Stop) system.

ODEP Issues Report on Forum on Autonomous Vehicles and Disability Policy

Picture of ODEP ODEP has released a report on the forum, "Autonomous Vehicles: Driving Employment for People with Disabilities," which summarizes key recommendations and considerations.

The emergence of self-driving or autonomous vehicles (AVs) raises important questions and possibilities concerning accessibility for people with disabilities. Last fall, the Department of Labor's Office of Disability Employment Policy (ODEP) and the Department of Transportation held a forum to gather information and recommendations on ways to promote access to AVs and to advance employment for people with disabilities. Representatives from over 30 groups attended and provided information and ideas on the subject. Attendees included advocacy organizations, government officials, including representatives from the Access Board, and subject matter experts.


They cover suggestions for making AVs accessible, improving access to employment in various settings, including rural areas, collaboration in AV development, mobility as a service, equitable deployment, AV safety and training, and next steps. ODEP and DOT are continuing this dialogue through an online portal where visitors can share information and their ideas and experiences on this subject.


The Docket

Comcast didn't violate ADA in denying transfer, judge says

HR Dive

  • Comcast did not fail to accommodate an employee's disability by declining to reassign her, a federal district court judge has ruled (Turcotte v. Comcast Cable Communications Management, LLC, No. 17-cv-150 (N.H. Feb. 14, 2019)). The judge granted Comcast summary judgment on all counts after the former employee alleged it violated the Americans with Disabilities Act (ADA).
  • After Brenda Turcotte's position was automated, she was transferred to a dispatch job. Her performance suffered because, according to her complaint, the high volume of inbound calls exacerbated her anxiety and panic attacks. She eventually took leave and requested reassignment but, according to the court, largely sought positions with requirements similar to those of the dispatch job. She also struggled to provide medical documentation to support her requests, failed to follow protocol for applying for jobs internally and eventually took an intern position with a finite end date, ultimately ending her employment with Comcast.
  • The judge granted summary judgment to Comcast on all of Turcotte's claims, specifically noting that because she was requesting a transfer that would have had her performing the same job functions, "it defies logic to argue that those jobs would have been a reasonable accommodation. If she could perform this function, Comcast would have no obligation to accommodate her at all."

Dive Insight:

Turcotte illustrates the weight that courts place on the ADA's interactive process. Managers need to be trained to dedicate extra time and effort to employees with disabilities when determining accommodations, David K. Fram, the director of ADA and Equal Employment Opportunity services for the National Employment Law Institute, told HR Dive in a previous interview. Based on the court's order, Comcast's efforts to accommodate Turcotte appear to have been exemplary; managers and HR representatives set aside time to train, retrain, counsel and conduct internal job searches with Turcotte.

What's more, the interactive process seems to have faltered when Turcotte failed to respond to requests for information from the company and failed to notify the company of her intentions. The ADA doesn't mandate a specific interactive process, but courts certainly tend to favor employers that carry out the interactive process well. An employer causing the breakdown of the process, for example, can serve as evidence of disability discrimination. Similarly, evidence that a breakdown was an employee's fault can help an employer defend later claims.

To ensure managers get the interactive process right, employers can start by training them to recognize the need for an accommodation, Haynes and Boone, LLP, Partner Adam Sencenbaugh previously told HR Dive. As the judge noted in Turcotte, an employee need not use special language — like "accommodation," for example — to communicate a need. Managers must realize when an employee needs help because of an impairment and guide the process from there.

© 2019

Question

United States: Is Telecommuting A Reasonable Accommodation In Ohio?

Mondaq News Alerts

In the recently issued decision in McDaniel v. Wilkie, the U.S. District Court for the Northern District of Ohio considered whether telecommuting constitutes a reasonable accommodation under the Americans with Disabilities Act (ADA). The short answer is that it can constitute a reasonable accommodation if it would enable an employee to satisfactorily perform the essential functions of his or her position and does not impose an undue burden on the employer.

In this case, an employer initially permitted an employee to telecommute four days per week. When the employee's productivity declined, the employer informed her that she must improve her productivity or her telecommuting privileges would be suspended. One week later, the employee requested full-time telecommuting as an accommodation for her alleged disability. The employer denied her request and revoked her telecommuting arrangement altogether. The employee resigned and claimed that her employer subjected her to a hostile work environment, failed to accommodate her alleged disability, and constructively discharged her.

With respect to the employee's failure to accommodate claim, the court held that the employee failed to establish that she was, in fact, "disabled" within the meaning of the ADA. The court noted that having a medical diagnosis—in this case, anxiety and depression—and alleging that these conditions were made worse while working for the employer is not enough to establish a disability. The employee must also establish that that he or she was substantially limited with respect to a major life activity, which the employee in this case failed to do.

In addition, the court found that the telecommuting arrangement that the employee requested was not a reasonable accommodation because the employee was not able to satisfactorily perform her duties within that accommodation request. Further, the court found that the employee failed to engage in the interactive process in good faith insofar as she refused to sign a medical release permitting the employer to request medical information regarding her alleged disabilities in order to evaluate other potential accommodations and then resigned while the process was ongoing.

The judge granted summary judgment in favor of the employer on the employee's hostile work environment, failure to accommodate, and constructive discharge claims.

Key Takeaways

This case provides employers faced with a request for a telecommuting arrangement as a disability accommodation with several takeaways. Most importantly, this decision reminds employers that when engaging in the interactive process with an employee who has requested a disability accommodation, they may want to consider whether telecommuting constitutes a reasonable accommodation that would enable the employee to perform the essential functions of his or her position. The decision also demonstrates that courts may recognize that factors, such as an employee's performance issues, can undermine the reasonableness of a telecommuting arrangement as an accommodation.

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All Rights Reserved

Focus

From the courtroom: ADA accommodation do's and don'ts

Business Management Daily

DO Take all ADA accommodation requests seriously

When an employee asks for an ADA reasonable accommodation, take that request seriously even if you don’t think it’s valid. Start the interactive process and see where it goes.

Recent case: Kecia was placed on medical leave after a series of workplace conflicts led to a psychiatric evaluation, which concluded she could not work at that time. She was out for a year.

Her employer told Kecia she would be terminated unless it received medical evidence of her recovery. She was advised that she might have accommodation rights under the ADA. She sent a short doctor’s note describing her condition. The employer decided it was inadequate and fired her.

She sued, alleging ADA violations, since the employer hadn’t begun accommodation efforts. The court said Kecia’s lawsuit could proceed. (Kemp v. New York City, et al., ED NY, 2019)

DO Track every accommodation request to show when employees asked—or didn’t

Disabled employees who need reasonable accommodations must request them. If no request is made, no ADA accommodation is due.

That’s why it is important to routinely track when you receive accommodation requests. It helps you know when to begin the interactive accommodations process.

It also enables you to state confidently that you never received a request.

Recent case: Angela, who suffers from anxiety and agoraphobia, took a job at a Macy’s selling cosmetics. She requested every Wednesday off, and her supervisors didn’t schedule her to work on those days.

Then she went out on medical leave. Macy’s told her if she needed accommodations when she returned, she needed to request them. She didn’t.

Meanwhile, Macy’s adopted an automated scheduling system that eliminated preference-based scheduling. Employees were required to contact HR for religious or disability accommodations. When Angela returned to work, she never made any special requests.

When she quit showing up for work on Wednesdays, Macy’s fired her.

She sued, alleging ADA violations. The court tossed out her lawsuit, reasoning the employer had made it clear how to ask for accommodations and she hadn’t done so. (Vitti v. Macy’s, 2nd Cir., 2018)

Final note: Macy’s did everything right in this case. It made clear how to ask for a religious or disability accommodation for scheduling. It tracked all those requests. It provided notice to employees returning from leave about how to ask for help.

DON'T assume temporary injuries as qualifiers for ADA disability

Minor injuries are not generally considered disabilities under the ADA. In order to qualify as disabling, a physical or mental condition must substantially limit a major life activity such as walking, talking, breathing or working. The condition doesn’t have to completely prevent or severely restrict the individual in the performance of a major life activity, but it must be more than transitory or minor.

Each condition must be assessed individually. Here’s how that played out in a recent case.

Recent case: Yvonne was an assistant principal at a middle school. She twice injured herself at work and received limited workers’ compensation benefits for each injury.

First, she hurt her shoulder. She was cleared to return to work with two restrictions: not lifting with her right arm and no pushing or pulling with the same arm. Two months later, her doctors said she was fully recovered.

Then she hurt her knee. She was off for a while, but returned with a temporary restriction of no stair climbing. Soon, she was again released with no restrictions.

Shortly afterward, she was terminated. She sued, alleging she was disabled and had been targeted for discharge because of her disability.

A lower court concluded she was not disabled because of the temporary nature of both injuries. She appealed to the 2nd Circuit Court of Appeals, which refused to reinstate her lawsuit. Her temporary ailments and injuries just weren’t disabling. (Francis v. Board of Education, 2nd Cir., 2019)

© Copyright 2019 Business Management Daily, a division of Capitol Information Group, Inc. All rights reserved.

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:
Wed Mar 13, 2019