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

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.

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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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)

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