With Thanksgiving week coming up and my wife and daughter coming back from a college trip later today, I thought I would get a blog entry up this weekend for the Thanksgiving week.

It has been a while since we talked about EEOC guidance on Covid-19. In fact, since our last discussion, the EEOC has updated it twice. The first time focused on accommodating sincerely religious beliefs. Since that wasn’t exactly an ADA issue, I didn’t jump in at that time. However, their most recent updates definitely impacts the ADA universe. So, it is time to cover the latest two updates to the guidance. The blog entry will take the updated section verbatim that we have not covered and then at the end of that particular section I will give my thoughts and takeaways. §L and M of the guidance will all be covered in their entirety. §K just has certain section that were added since the last time we wrote about this.

COVID-19 Vaccinations:  EEO Overview

K.1.  Under the ADA, Title VII, and other federal employment nondiscrimination laws, may an employer require all employees physically entering the workplace to be vaccinated against COVID-19?    (Updated 10/13/21)

The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be fully vaccinated against COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below. (See Section L, Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates).

In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated against COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.  The analysis for undue hardship depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) (see K.6) or for religion (see K.12).

As with any employment policy, employers that have a vaccination requirement may need to respond to allegations that the requirement has a disparate impact on—or disproportionately excludes—employees based on their race, color, religion, sex, or national origin under Title VII (or age under the Age Discrimination in Employment Act [40+]). Employers should keep in mind that because some individuals or demographic groups may face barriers to receiving a COVID-19 vaccination, some employees may be more likely to be negatively impacted by a vaccination requirement.

It would also be unlawful to apply a vaccination requirement to employees in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.

Thoughts/takeaways:

  1. Keep in mind that undue hardship for accommodating sincerely religious beliefs and undue hardship for accommodating persons with disabilities do not at all mean the same thing.
  2. Open question as to whether an employer requiring all Applicants to be vaccinated for Covid-19 would not be a prohibited disability related inquiry. I have seen at least one management attorney make that argument. Remember, that the ADA has a scheme for dealing with disability related inquiries and medical exams, which we discussed here.

K.3.  How can employers encourage employees and their family members to be vaccinated against COVID-19 without violating the EEO laws, especially the ADA and GINA?   (Updated 10/13/21)

Employers may provide employees and their family members with information to educate them about COVID-19 vaccines, raise awareness about the benefits of vaccination, and address common questions and concerns. Employers also may work with local public health authorities, medical providers, or pharmacies to make vaccinations available for unvaccinated workers in the workplace.  Also, under certain circumstances employers may offer incentives to employees who receive COVID-19 vaccinations, as discussed in K.16 – K.21. The federal government is providing COVID-19 vaccines at no cost to everyone 12 years of age and older.

There are many resources available to employees seeking more information about how to get vaccinated against COVID-19:

  • The federal government’s online vaccines.gov site can identify vaccination sites anywhere in the country (or https://www.vacunas.gov for Spanish).  Individuals also can text their ZIP  code to “GETVAX” (438829)–or “VACUNA” (822862) for Spanish–to find three vaccination locations near them.
  • Employees with disabilities (or employees family members with disabilities) may need extra support to obtain a vaccination, such as transportation or in-home vaccinations.  The HHS/Administration for Community Living has launched the Disability Information and Assistance Line (DIAL) to assist individuals with disabilities in obtaining such help.   DIAL can be reached at: 888-677-1199 from 9 am to 8 pm (Eastern Standard Time) Mondays through Fridays or by emailing DIAL@n4a.org.
  • CDC’s website offers a link to a listing of local health departments, which can provide more information about local vaccination efforts.
  • In addition, CDC provides a complete communication “tool kit” for employers to use with their workforce to educate people about getting a COVID-19 vaccine.  Although originally written for essential workers and employers, it is useful for all workers and employers.  See Workplace Vaccination Program | CDC.
  • Some employees may not have reliable access to the internet to identify nearby vaccination locations or may speak no English or have limited English proficiency and find it difficult to make an appointment for a vaccination over the phone. CDC operates a toll-free telephone line that can provide assistance in many languages for individuals seeking more information about vaccinations: 800-232-4636; TTY 888-232-6348.
  • Some employees also may require assistance with transportation to vaccination sites. Employers may gather and disseminate information to their employees on low-cost and no-cost transportation resources serving vaccination sites available in their community and offer paid time-off for vaccination, particularly if transportation is not readily available outside regular work hours.
  • Employers should provide the contact information of a management representative for employees who need to request a reasonable accommodation for a disability or religious belief, practice, or observance, or to ensure nondiscrimination for an employee who is pregnant.

Thoughts/takeaways: K3 is self-explanatory and don’t have anything to add.

The ADA and COVID-19 Vaccinations

K.4.  Is information about an employee’s COVID-19 vaccination confidential medical information under the ADA?  (Updated 10/13/21)

Yes.  The ADA requires an employer to maintain the confidentiality of employee medical information. Although the EEO laws do not prevent employers from requiring employees to provide documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA.

Thoughts/takeaways: self-explanatory but very important to remember.

Mandatory Employer Vaccination Programs

K.9.  Does the ADA prevent an employer from inquiring about or requesting documentation or other confirmation that an employee obtained a COVID-19 vaccination?   (Updated 10/13/21)

No.  When an employer asks employees whether they obtained a COVID-19 vaccination, the employer is not asking the employee a question that is likely to disclose the existence of a disability; there are many reasons an employee may not show documentation or other confirmation of vaccination besides having a disability.  Therefore, requesting documentation or other confirmation of vaccination is not a disability-related inquiry under the ADA, and the ADA’s rules about making such inquiries do not apply.

However, documentation or other confirmation of vaccination provided by the employee to the employer is medical information about the employee and must be kept confidential, as discussed in K.4.

Thoughts/takeaways: As mentioned previously, I have seen attorneys make the argument that requiring proof of vaccination prior to a conditional job offer might be a disability related inquiry prohibited by the ADA. However, this section is referring to Employees, which can make a big difference in the analysis. The EEOC is saying that with respect to employees the ADA does not prevent an employer from inquiring about or requesting documentation or other confirmation that an employee obtained a Covid-19 vaccination because there are variety of reasons why they may not show documentation or other confirmation of vaccination besides having a disability.

 

Title VII and COVID-19 Vaccinations

K.13.  Under Title VII, what should an employer do if an employee chooses not to receive a COVID-19 vaccination due to pregnancy?   (Updated 10/13/21)

CDC recommends COVID-19 vaccinations for everyone aged 12 years and older, including people who are pregnant, breastfeeding, trying to get pregnant now, or planning to become pregnant in the future.  Despite these recommendations, some pregnant employees may seek job adjustments or may request exemption from a COVID-19 vaccination requirement.

If an employee seeks an exemption from a vaccination requirement due to pregnancy, the employer must ensure that the employee is not being discriminated against compared to other employees similar in their ability or inability to work.  This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent such modifications are provided for other employees who are similar in their ability or inability to work.  Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.

Thoughts/takeaways: this particular section is really nothing more than an explanation of the Young case, which we referenced here. While pregnancy is not a disability per se, the side effects of pregnancy might be. Also, dealing with pregnancy because of Young means going through the same reasonable accommodation analysis as you would for a person with a disability.

GINA And COVID-19 Vaccinations

Title II of GINA prohibits covered employers from using the genetic information of employees to make employment decisions.  It also restricts employers from requesting, requiring, purchasing, or disclosing genetic information of employees.  Under Title II of GINA, genetic information includes information about the manifestation of disease or disorder in a family member (which is referred to as “family medical history”) and information from genetic tests of the individual employee or a family member, among other things. 

K.15.  Is Title II of GINA implicated when an employer requires employees to provide documentation or other confirmation that they received a vaccination from a health care provider that is not affiliated with their employer (such as from the employee’s personal physician or other health care provider, a pharmacy, or a public health department)? (Updated 10/13/21)

No.  An employer requiring an employee to show documentation or other confirmation of vaccination from a health care provider unaffiliated with the employer, such as the employee’s personal physician or other health care provider, a pharmacy, or a public health department, is not using, acquiring, or disclosing genetic information and, therefore, is not implicating Title II of GINA.  This is the case even if the medical screening questions that must be asked before vaccination include questions about genetic information, because documentation or other confirmation of vaccination would not reveal genetic information.  Title II of GINA does not prohibit an employee’s own health care provider from asking questions about genetic information.  This GINA Title II prohibition only applies to the employer or its agent.

Thoughts/takeaways: the key here is documentation or other confirmation of vaccination is coming from a healthcare provider unaffiliated with the employer.

Employer Incentives For COVID-19 Voluntary Vaccinations Under ADA and GINA

ADA:  Employer Incentives for Voluntary COVID-19 Vaccinations

K.16.  Does the ADA limit the value of the incentive employers may offer to employees for voluntarily receiving a COVID-19 vaccination from a health care provider that is not affiliated with their employer (such as the employee’s personal physician or other health care provider, a pharmacy, or a public health department)?   (Updated 10/13/21)

No.  The ADA does not limit the incentives an employer may offer to encourage employees to voluntarily receive a COVID-19 vaccination, or to provide confirmation of vaccination, if the health care provider administering a COVID-19 vaccine is not the employer or its agent.  By contrast, if an employer offers an incentive to employees to voluntarily receive a vaccination administered by the employer or its agent, the ADA’s rules on disability-related inquiries apply and the value of the incentive may not be so substantial as to be coercive.  See K.17.

As noted in K 4., the employer is required to keep vaccination information confidential under the ADA.

Thoughts/takeaways: the key here is the employer offering an incentive to employees getting the Covid-19 vaccination from a healthcare provider that is Not affiliated with their employer.

K.17.  Under the ADA, are there limits on the value of the incentive employers may offer to employees for voluntarily receiving a COVID-19 vaccination administered by the employer or its agent?   (Updated 10/13/21)

Yes.  When the employer or its agent administers a COVID-19 vaccine, the value of the incentive (which includes both rewards and penalties) may not be so substantial as to be coercive.  Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information to their employers or their agents. As explained in K.16., however, this incentive limit does not apply if an employer offers an incentive to encourage employees to be voluntarily vaccinated by a health care provider that is not their employer or an agent of their employer.

Thoughts/takeaways: different ballgame for when the employer or agent administers a Covid-19 vaccine. Here, you want to be very careful about the incentives you offer. Anything going beyond de minimis, might run the employer into trouble.

GINA:  Employer Incentives for Voluntary COVID-19 Vaccinations

K.18.  Does GINA limit the value of the incentive employers may offer employees if employees or their family members get a COVID-19 vaccination from a health care provider that is not affiliated with the employer (such as the employee’s personal physician or other health care provider, a pharmacy, or a public health department)?   (Updated 10/13/21)

No.  GINA does not limit the incentives an employer may offer to employees to encourage them or their family members to get a COVID-19 vaccine or provide confirmation of vaccination if the health care provider administering the vaccine is not the employer or its agent.  If an employer asks an employee to show documentation or other confirmation that the employee or a family member has been vaccinated, it is not an unlawful request for genetic information under GINA because the fact that someone received a vaccination is not information about the manifestation of a disease or disorder in a family member (known as “family medical history” under GINA), nor is it any other form of genetic information. GINA’s restrictions on employers acquiring genetic information (including those prohibiting incentives in exchange for genetic information), therefore, do not apply.

Thoughts/takeaways: no limit on the incentives an employer may offer to employees to encourage the employee or their family member to get a Covid-19 vaccine or provide confirmation of vaccination where the healthcare provider administering the vaccine is Not the employer or the employer’s agent.

L. Vaccinations – Title VII and Religious Objections to COVID-19 Vaccine Mandates

The EEOC enforces Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on religion. This includes a right for job applicants and employees to request an exception, called a religious or reasonable accommodation, from an employer requirement that conflicts with their sincerely held religious beliefs, practices, or observances.  If an employer shows that it cannot reasonably accommodate an employee’s religious beliefs, practices, or observances without undue hardship on its operations, the employer is not required to grant the accommodation.  See generally Section 12: Religious Discrimination; EEOC Guidelines on Discrimination Because of Religion. Although other laws, such as the Religious Freedom Restoration Act (RFRA), may also protect religious freedom in some circumstances, this technical assistance only describes employment rights and obligations under Title VII.

L.1. Do employees who have a religious objection to receiving a COVID-19 vaccination need to tell their employer?  If so, is there specific language that must be used under Title VII? (10/28/21)

Employees must tell their employer if they are requesting an exception to a COVID-19 vaccination requirement because of a conflict between that requirement and their sincerely held religious beliefs, practices, or observances (hereafter called “religious beliefs”).  Under Title VII, this is called a request for a “religious accommodation” or a “reasonable accommodation.”

When making the request, employees do not need to use any “magic words,” such as “religious accommodation” or “Title VII.”  However, they need to notify the employer that there is a conflict between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement.

The same principles apply if employees have a religious conflict with getting a particular vaccine and wish to wait until an alternative version or specific brand of COVID-19 vaccine is available.

As a best practice, an employer should provide employees and applicants with information about whom to contact, and the procedures (if any) to use, to request a religious accommodation.

As an example, here is how EEOC designed its own form for its own workplace. Although the EEOC’s internal forms typically are not made public, it is included here given the extraordinary circumstances facing employers and employees due to the COVID-19 pandemic. (Note: Persons not employed by the EEOC should not submit this form to the EEOC to request a religious accommodation.)

Thoughts/takeaways: with respect to the reasonable accommodation request for a sincerely held religious belief, the activation of the request is the same as under the ADA. That is, magic words are not required.

L.2. Does an employer have to accept an employee’s assertion of a religious objection to a COVID-19 vaccination at face value?  May the employer ask for additional information? (10/25/21)

Generally, under Title VII, an employer should assume that a request for religious accommodation is based on sincerely held religious beliefs.  However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking additional supporting information.  An employee who fails to cooperate with an employer’s reasonable request for verification of the sincerity or religious nature of a professed belief risks losing any subsequent claim that the employer improperly denied an accommodation.  See generally Section 12-IV.A.2: Religious Discrimination.

The definition of “religion” under Title VII protects nontraditional religious beliefs that may be unfamiliar to employers.  While the employer should not assume that a request is invalid simply because it is based on unfamiliar religious beliefs, employees may be asked to explain the religious nature of their belief and should not assume that the employer already knows or understands it.  By contrast, Title VII does not protect social, political, or economic views, or personal preferences.  Section 12-I.A.1: Religious Discrimination (definition of religion).  Thus, objections to COVID-19 vaccination that are based on social, political, or personal preferences, or on nonreligious concerns about the possible effects of the vaccine, do not qualify as “religious beliefs” under Title VII.

The sincerity of an employee’s stated religious beliefs also is not usually in dispute.  The employee’s sincerity in holding a religious belief is “largely a matter of individual credibility.”  Section 12-I.A.2: Religious Discrimination (credibility and sincerity).  Factors that – either alone or in combination – might undermine an employee’s credibility include:  whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance); whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

The employer may ask for an explanation of how the employee’s religious belief conflicts with the employer’s COVID-19 vaccination requirement.  Although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs – or degree of adherence – may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held.  An employer should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others.  No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.

When an employee’s objection to a COVID-19 vaccination requirement is not religious in nature, or is not sincerely held, Title VII does not require the employer to provide an exception to the vaccination requirement as a religious accommodation.

Thoughts/takeaways:

  1. Until many people started utilizing sincerely held religious beliefs as a way of circumventing Covid-19 vaccination requirements, the practice was that employers assumed that a request for religious accommodation was based on a sincerely held religious belief. They could do that because it doesn’t take much for something to rise to an undue hardship with respect to accommodating religious beliefs.
  2. If the employer has an objective basis for questioning the religious nature or the sincerity of a particular belief, the employer is justified in making a limited factual inquiry and seeking additional information. The employee then has to cooperate with any reasonable request from the employer for verification of the sincerity or religious nature of his or her belief or risk losing his or her claim that the employer improperly denied an accommodation.
  3. Unfamiliar religious beliefs can be a religious belief. Social, political, or economic views, or personal preferences do not qualify for protection.
  4. Factors the EEOC says to consider in trying to determine whether the employee has a credible sincerely held religious belief include: 1) whether the employee has acted in a manner inconsistent with the professed belief, though they do not need to be scrupulous in their observance; 2) whether the accommodation sought is a particularly desirable benefit likely to be sought for nonreligious reasons; 3) whether the timing of the request renders it suspect; and 4) whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons. No one factor or consideration is determinative, and an employer needs to evaluate religious objections on an individual basis.
  5. With respect to §4 of my thought takeaways of this section, immediately above, it seems to me that it would be very hard to apply these EEOC factors in practice.

L.3. How does an employer show that it would be an “undue hardship” to accommodate an employee’s request for religious accommodation? (10/25/21)

Under Title VII, an employer should thoroughly consider all possible reasonable accommodations, including telework and reassignment.  For suggestions about types of reasonable accommodations for unvaccinated employees, see K.6, above.  In many circumstances, it may be possible to accommodate those seeking reasonable accommodations for their religious beliefs, practices, or observances without imposing an undue hardship.

If an employer demonstrates that it is unable to reasonably accommodate an employee’s religious belief without an “undue hardship” on its operations, then Title VII does not require the employer to provide the accommodation.  42 U.S.C. § 2000e(j).  The Supreme Court has held that requiring an employer to bear more than a “de minimis,” or a minimal, cost to accommodate an employee’s religious belief is an undue hardship.  Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business – including, in this instance, the risk of the spread of COVID-19 to other employees or to the public.

Courts have found Title VII undue hardship where, for example, the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.  For a more detailed discussion, see Section 12-IV.B: Religious Discrimination (discussing undue hardship).

An employer will need to assess undue hardship by considering the particular facts of each situation and will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve.  An employer cannot rely on speculative hardships when faced with an employee’s religious objection but, rather, should rely on objective information. Certain common and relevant considerations during the COVID-19 pandemic include, for example, whether the employee requesting a religious accommodation to a COVID-19 vaccination requirement works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals).  Another relevant consideration is the number of employees who are seeking a similar accommodation (i.e., the cumulative cost or burden on the employer).

Thoughts/takeaways: as mentioned above, undue hardship when it comes to accommodating religious views, for now anyway, is not at all the same thing as undue hardship when it comes to accommodating disabilities. Anything more than de minimus is an undue hardship for purposes of accommodating religious beliefs. It is proper to consider the burden of not getting a Covid-19 vaccination on the employer’s business.

L.4. If an employer grants some employees a religious accommodation from a COVID-19 vaccination requirement because of sincerely held religious beliefs, does it have to grant the requests of all employees who seek an accommodation because of sincerely held religious beliefs? (10/25/21)

No.  The determination of whether a particular proposed accommodation imposes an undue hardship on the conduct of the employer’s business depends on its specific factual context. When an employer is assessing whether exempting an employee from getting a vaccination would impair workplace safety, it may consider, for example, the type of workplace, the nature of the employee’s duties, the number of employees who are fully vaccinated, how many employees and nonemployees physically enter the workplace, and the number of employees who will in fact need a particular accommodation.  A mere assumption that many more employees might seek a religious accommodation to the vaccination requirement in the future is not evidence of undue hardship, but the employer may take into account the cumulative cost or burden of granting accommodations to other employees.

Thoughts/takeaways: figuring out the proper accommodation for sincerely held religious beliefs requires an individualized analysis just like the ADA.

L.5. Must an employer provide the religious accommodation preferred by an employee if there are other possible accommodations that also are effective in eliminating the religious conflict and do not cause an undue hardship under Title VII? (10/25/21)

No.  If there is more than one reasonable accommodation that would resolve the conflict between the vaccination requirement and the sincerely held religious belief without causing an undue hardship under Title VII, the employer may choose which accommodation to offer.  If more than one accommodation would be effective in eliminating the religious conflict, the employer should consider the employee’s preference but is not obligated to provide the reasonable accommodation preferred by the employee.  If the employer denies the employee’s proposed accommodation, the employer should explain to the employee why the preferred accommodation is not being granted.

An employer should consider all possible alternatives to determine whether exempting an employee from a vaccination requirement would impose an undue hardship.  See, e.g., K.2. Employers may rely on CDC recommendations when deciding whether an effective accommodation is available that would not pose an undue hardship.

Thoughts/takeaways: just like the ADA, an employer can choose the accommodation to offer. As with the ADA, the employer should consider the employee’s preference but is not obligated to provide the reasonable accommodation preferred by the employee if there is more than one reasonable accommodation that will work. Also, just like the ADA the employer needs to look at all possible alternatives short of an undue hardship.

L.6. If an employer grants a religious accommodation to an employee, can the employer later reconsider it? (10/25/21)

The obligation to provide religious accommodations absent undue hardship is a continuing obligation that takes into account changing circumstances.  Employees’ religious beliefs and practices may evolve or change over time and may result in requests for additional or different religious accommodations.  Similarly, an employer has the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes, or if a provided accommodation subsequently poses an undue hardship on the employer’s operations due to changed circumstances.  As a best practice, an employer should discuss with the employee any concerns it has about continuing a religious accommodation before revoking it and consider whether there are alternative accommodations that would not impose an undue hardship.

Thoughts/takeaways: while this is all true and it is also true for the ADA, taking away accommodations is always a recipe for litigation. So if you are going to take away accommodations, you definitely want to to do that very deliberately and line up all your ducks in a row before doing it.

M. Retaliation and Interference

The anti-retaliation protections discussed here only apply to the exercise of rights under the federal equal employment opportunity (EEO) laws. Information about similar protections under other federal workplace laws, such as the Family and Medical Leave Act or the Occupational Safety and Health Act, is available from the U.S. Department of Labor. Information about similar protections under the Immigration and Nationality Act’s anti-discrimination provision, which prohibits some types of workplace discrimination based on citizenship status, immigration status, or national origin, and protects against retaliation for asserting those rights, is available from the Civil Rights Division of the U.S. Department of Justice.

M.1.  Do job applicants and employees (including former employees) have protections from retaliation for exercising equal employment opportunity (EEO) rights in connection with COVID-19? (11/17/21)

Yes.  Job applicants and current and former employees are protected from retaliation by employers for asserting their rights under any of the federal EEO laws.  The EEO laws prohibit workplace discrimination based on race, color, sex (including pregnancy, sexual orientation, and gender identity), national origin, religion, age (40 or over), disability, or genetic information.  Speaking out about or exercising rights related to workplace discrimination is called “protected activity.”

Protected activity can take many forms.  For example, an employee complaining to a supervisor about coworker harassment based on race or national origin is protected activity.  Witnesses to discrimination who seek to assist individuals affected by discrimination are also protected.  Engaging in protected activity, however, does not shield an employee from discipline, discharge, or other employer actions taken for reasons unrelated to the protected activity.

M.2. What are some examples of employee activities that are protected from employer retaliation? (11/17/21)

  • Filing a charge, complaint, or lawsuit, regardless of whether the underlying discrimination allegation is successful or timely. For example, employers may not retaliate against employees who file charges with the EEOC alleging that their supervisor unlawfully disclosed confidential medical information (such as a COVID-19 diagnosis), even if the EEOC later decides there is no merit to the underlying charges.  Moreover, a supervisor may not give a false negative job reference to punish a former employee for making an EEO complaint, or refuse to hire an applicant because of the applicant’s EEO complaint against a prior employer.
  • Reporting alleged EEO violations to a supervisor or answering questions during an employer investigation of the alleged harassment. For example, an Asian American employee who tells a manager or human resources official that a coworker made abusive comments accusing Asian people of spreading COVID-19 is protected from retaliation for reporting the harassment. Workplace discrimination laws also prohibit retaliation against employees for reporting harassing workplace comments about their religious reasons for not being vaccinated. Similarly, workplace discrimination laws prohibit retaliation against an employee for reporting sexually harassing comments made during a work video conference meeting.
  • Resisting harassment, intervening to protect coworkers from harassment, or refusing to follow orders that would result in discrimination. For example, workplace discrimination laws protect a supervisor who refuses to carry out management’s instruction not to hire certain applicants based on the sex-based presumption that they might use parental leave or have childcare needs, or to steer them to particular types of jobs.
  • Requesting accommodation of a disability (potentially including a pregnancy-related medical condition) or a religious belief, practice, or observance regardless of whether the request is granted or denied. For example, the EEO laws prohibit an employer from retaliating against an employee for requesting continued telework as a disability accommodation after a workplace reopens.  Similarly, requesting religious accommodation, such as modified protective gear that can be worn with religious garb, is protected activity.  Requests for accommodation are protected activity even if the individual is not legally entitled to accommodation, such as where the employee’s medical condition is not ultimately deemed a disability under the ADA, or where accommodation would pose an undue hardship.

Thoughts/takeaways: I am already seeing a lot of cases coming my way where a person with underlying health conditions requests the accommodation of remote work. How that request gets handled can very much depend on whether your state has policies that are anti mask and anti-vaccine or not, particularly so if the employee is in the public sector.. The key is going to be what are the essential functions of the job and can they do that job with or without reasonable accommodations. You can bet that the fact that they did their job effectively remotely while everybody was on lockdown will be used by plaintiff attorneys to show that they can do the essential functions of the job now with or without reasonable accommodations.

M.3. Who is protected from retaliation? (11/17/21)

Retaliation protections apply to current employees, whether they are full-time, part-time, probationary, seasonal, or temporary. Retaliation protections also apply to job applicants and to former employees (such as when an employer provides a job reference). In addition, these protections apply regardless of an applicant’s or employee’s citizenship or work authorization status.

Thoughts/takeaways: any kind of employee, applicant, and former employees are all protected from retaliation. Those protections apply regardless of an applicant’s or employee’s citizenship or work authorization status.

M.4. When do retaliation protections apply? (11/17/21)

Participating in an EEO complaint process is protected from retaliation under all circumstances.

Other acts by a current, prospective, or former employee to oppose discrimination are protected as long as the employee is acting on a reasonable good faith belief that something in the workplace may violate EEO laws, and expresses those beliefs in a reasonable manner.  An employee is still protected from retaliation for making a complaint about workplace discrimination even if the employee does not use legal terminology to describe the situation.

Thoughts/takeaways:

  1. Because participating in the EEO complaint process is protected from retaliation under all circumstances, it can be very important for a plaintiff attorney to get that EEOC complaint filed quickly so as to minimize any possibilities of retaliation.
  2. Many places have internal grievance procedures but nothing requires a plaintiff to exhaust that internal grievance procedure first. A plaintiff will want to consult with their attorney to figure out whether the internal grievance procedure should be utilized or not. Since the EEOC does ask whether you went through internal grievance procedures when you file the complaint with them, you want to remember that the law does not require a futile act where the plaintiff knows that the internal appeal will be useless.
  3. Good faith can be determined as a matter of law. I am aware of cases where the plaintiff had a good faith belief subjectively that what they were doing was protected activity. However, the law was such that no person knowing the law would possibly believe that. In that situation, courts have said that a plaintiff could not have a reasonable good faith belief that something in the workplace was violating the EEO laws.

M.5. When is an employer action based on an employee’s EEO activity serious enough to be unlawful retaliation? (11/17/21)

Retaliation includes any employer action in response to EEO activity that could deter a reasonable person from engaging in protected EEO activity.  Depending on the facts, this might include actions such as denial of promotion or job benefits, non-hire, suspension, discharge, work-related threats, warnings, negative or lowered evaluations, or transfers to less desirable work or work locations.  Retaliation could also include an action that has no tangible effect on employment, or even an action that takes place only outside of work, if it might deter a reasonable person from exercising EEO rights.  The fact that an individual is not actually deterred from opposing discrimination or participating in an EEO complaint-related process or activity does not preclude an employer’s action from being considered retaliatory.

However, depending on the specific situation, retaliation likely would not include a petty slight, minor annoyance, or a trivial punishment.

Thoughts/takeaways: the standard is an objective one focusing on the reasonable person. The key is whether the action deters a reasonable person from exercising EEO rights.

M.6.  Does this mean that an employer can never take action against someone who has engaged in EEO activity? (11/17/21)

No.  Engaging in protected EEO activity does not prevent discipline of an employee for legitimate reasons.  Employers are permitted to act based on non-retaliatory and non-discriminatory reasons that would otherwise result in discipline.  For example, if an employee performs poorly, has low productivity, or engages in misconduct, an employer may respond as it normally would, even if the employee has engaged in protected activity.  Similarly, an employer may take non-retaliatory, non-discriminatory action to enforce COVID-19 health and safety protocols, even if such actions follow EEO activity (e.g., an accommodation request).

Thoughts/takeaways: this is certainly all true. However, make sure that everything is lined up properly as the risk of litigation is high in the situation.

M.7.  Does the law provide any additional protections to safeguard ADA rights? (11/17/21)

Yes.  The ADA prohibits not only retaliation for protected EEO activity, but also “interference” with an individual’s exercise of ADA rights.  Under the ADA, employers may not coerce, intimidate, threaten, or otherwise interfere with the exercise of ADA rights by job applicants or current or former employees.  For instance, it is unlawful for an employer to use threats to discourage someone from asking for a reasonable accommodation.  It is also unlawful for an employer to pressure an employee not to file a disability discrimination complaint.  The ADA also prohibits employers from interfering with employees helping others to exercise their ADA rights.

The employer’s actions may still violate the ADA’s interference provision even if an employer does not actually carry out a threat, and even if the employee is not deterred from exercising ADA rights.

 

Thoughts/takeaways: interference is an extremely underutilized provision of the ADA. The most common place that I see it is when a higher up gets involved with the accommodation decision instead of the people directly involved with the workers seeking the accommodation. The other place that I see it a lot is in higher education where a professor refuses to carry out accommodations put in place by disability services. For how to go about proving up and interference claim, we discussed that here. I do not have an answer as to why interference claims simply do not come up a lot. That very well could change in the future.

Today’s blog entry deals with the question of what happens when you have an individual with a progressive disability who becomes aware of inaccessibility of a public entity’s facilities. When he becomes aware of inaccessibility issues by the public entity, he files suit but then withdraws it because the accessibility issues are not a problem for him at that time. Some years go by, and his disability progresses to the point where those inaccessibility issues are now a real problem. He brings suit and the public entity claims that the statute of limitations has expired because he knew of the issues too many years before he actually brought the suit. The district court buys the argument and plaintiff appeals. These are exactly the facts in Karantsalis v. City of Miami Springs, Florida a published decision decided by the 11th Circuit on November 12, 2021, here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts (Taken Directly from the Opinion)

 

Plaintiff-Appellant Theodore D. Karantsalis is a resident of the City of Miami Springs (the City). In 2008, following a diagnosis of multiple sclerosis (MS), Karantsalis sued the City alleging that it violated Title II of the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 by failing to make its facilities and infrastructure accessible to individuals with disabilities. He later voluntarily dismissed the lawsuit based on his belief that he lacked constitutional standing because his symptoms were mild and did not prevent him from accessing and using the City’s programs or services. At that time, Karantsalis was able to walk, stand, routinely bicycle and jog, and participate in races. Over a decade later, in 2019, Karantsalis’s MS and his symptoms had progressed dramatically. In 2017, he started falling, developed a limp, and needed a Florida disabled parking permit. By June 2019, his neurologist had prescribed a wheelchair. Also in 2019, he again sued the City under the ADA and Rehabilitation Act alleging the City’s sidewalks, municipal gymnasium, and parking at public facilities were inaccessible. The district court dismissed the case with prejudice, holding that it was “barred by the statute of limitations” because the statute of limitations was triggered before or during 2008 when Karantsalis became aware of the undisputed fact of his MS diagnosis. The mere fact of his MS diagnosis in 2008, the district court in effect ruled, triggered the accrual of his cause of action and the running of the four-year statute of limitations.

 

II

Court’s Reasoning

 

  1. The ADA does not contain a statute of limitations period. So, the federal courts will look to the most analogous state limitation period. In Florida and most states, the most analogous state limitations period comes from the personal injury actions, which is four years in Florida.
  2. Title II of the ADA prohibits discrimination by public entities against individuals with disabilities.
  3. In order to state an ADA claim under title II of the ADA or §504 of the Rehabilitation Act, a plaintiff has to show: 1) he or she is a qualified individual with a disability; 2) he or she was either excluded from participation in or denied the benefits of a public entity’s services, program, activities, or otherwise discriminated against by the public entity; and 3) the exclusion, denial of benefit, or discrimination was by reason of the plaintiff’s disability.
  4. A public entity must operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.
  5. The City is obligated to ensure that each service, program, or activity at its municipal facilities, when viewed in its entirety, is readily accessible to individuals with disabilities.
  6. A statute of limitations does not begin to run until the facts supporting the cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights.
  7. Plaintiff’s injury did not occur until at least 2017 when his mobility decreased to the level that he could no longer readily access and use the City’s public services because of its ADA noncompliant facilities.
  8. Plaintiff’s ADA injury is the City’s denial of the benefits of the public services. In other words, plaintiff could not have sued the City before he lost his mobility and his ready access to and use of the City’s public services.
  9. To sue in federal court, the plaintiff must show that he had an injury. The difference between 2008 and 2017 was that the plaintiff in 2017, had now lost the mobility necessary to readily access the services in the ADA noncompliant facilities. It was only then that plaintiff suffered his injury. So, it was not until 2017 that plaintiff’s ADA cause of action accrued and he could sue.
  10. A plaintiff must know or have reason to know that he was injured to some extent. In this particular case, that did not occur until plaintiff’s disease had progressed sufficiently enough for him to know or have reason to know he personally was denied the benefits of the City’s public services.
  11. Determining whether an injury occurred is a highly fact specific determination and at the motion to dismiss stage, a court reviews the allegations in the light most favorable to the plaintiff.
  12. When a plaintiff’s ADA claim accrues is a question of federal law and not state law.
  13. Since the function of title II of the ADA is to ensure the accessibility of public services for people with disabilities, it naturally follows that a person does not suffer an injury (and therefore does not have standing to sue), in a title II ADA access case unless they were unable to access a public service because of their disability.
  14. The injury is not the diagnosis. Rather, the injury is the plaintiff’s inability to readily access the City’s facilities and the resulting denial of the benefits of the City’s public services, which did not occur until 2017.
  15. Plaintiff’s current suit even involves some facilities that he did not include in his 2008 case and some facilities that were altered as late as 2016.
  16. The district court erroneously focused on the timing of plaintiff’s diagnosis rather than on plaintiff’s injury. Although plaintiff had multiple sclerosis in both 2008 and 2017, the district court failed to establish that he was similarly injured in both 2008 and 2017 before finding his suit time-barred.
  17. Since plaintiff actually experienced his injury only in 2017, his ADA claim against the City was not barred by the statute of limitations when he filed a complaint in 2019.
  18. In order to have standing under title III of the ADA, the following is required: 1) injury in fact; 2) a causal connection between the asserted injury in fact and the challenged action of the defendant; and 3) the injury would be redressed by a favorable decision. Plaintiff has standing because he was not actually injured until at least 2017 when he could no longer access the public services in the City’s ADA noncompliant facilities.
  19. In a footnote, the court notes that they are not saying that the accrual date and every ADA access case dovetails with the standing requirements. Rather, the court is saying that the plaintiff’s ADA claim, whether it be for damages or injunctive relief, did not accrue until at least 2017 because plaintiff did not suffer an ADA injury until then.
  20. If the key to figuring out statute of limitations was a person’s diagnosis, then anyone diagnosed with a progressive illness would have to assume his or her condition would progress to the worst possible outcome at some point down the road and sue within the statutory period from the time the person was diagnosed with the condition even if he or she showed no symptoms at the time. Not only would such an individual lack standing at that time, but the law does not require a person with a disability to foresee the future.

III

Thoughts/Takeaways

  1. When a statute of limitation begins to run for ADA claims is something we have discussed before, such as here. Also, keep in mind that the particular statute of limitations that a court looks to can vary from state to state. In most situations, the analogous statute of limitations is the personal injury statute of limitations but that isn’t always true. Also, most of the personal injury actions statute of limitations are at least two years, but three or four years does happen from time to time. Whenever you are dealing with an ADA case, you do need to know what is the most analogous statute of limitations and what that statute of limitations is. For example, in Virginia, it is one year because they look to the Virginia disability nondiscrimination statute.
  2. The reasoning of the court appears sound to me. People with disabilities, even those with progressive disabilities, can vary radically in terms of how those disabilities progress. Also, the ADA requires an individualized analysis at the current time. So, this decision is perfectly consistent with all of that.
  3. The case study brings up a critical point, which is a plaintiff should stay away from notice pleadings. Instead, adopt a fact-notice pleadings hybrid approach whereby you put the defendant on notice with enough facts so that they can’t possibly question whether the person has a disability at that moment in time the complaint is filed.
  4. I see little likelihood of a Circuit Court split developing on this question.
  5. It is a published decision and so binding precedent in the 11th Circuit and persuasive and citable authority everywhere else.
  6. Title II of the ADA focuses on program accessibility. However, §504 the Rehabilitation Act goes much further than the ADA by requiring all operations of many kinds of vanity be meaningfully accessible to persons with disabilities. See 29 U.S.C. §794(b).
  7. Federal law determines when a cause of action accrues and not state law.
  8. In ADA cases, it is important to not get hung up on the diagnosis, especially after the amendments to the ADA. The key is whether any of the definitions of disability found in 42 U.S.C. §12102 are satisfied and not the diagnosis.
  9. If a facility is altered, then those alterations in the path of travel to those alterations must be done in accordance with the applicable ADAAG guidelines. We discussed what an alteration was here.

Today’s blog entry comes from the title III blog put out by Seyfarth Shaw, which you can find in my blogroll. As always, Minh Vu does an excellent job with the case. However, as readers of this blog know, I will blog on cases discussed by others if I think I have a different perspective to offer. This is one of those situations. The case of the day is Szwanek v. Jack-in-the-Box Inc., an unpublished decision from the Ninth Circuit decided on November 3, 2021, here. This case again presents the question of whether a franchisee that limits the lobby hours to only certain times of the day might violate the ADA because blind or visually impaired individuals cannot use the drive through. We discussed such a case in October of this year, here. The facts are essentially the same. That is, a blind individual was denied service at the drive through window when they were unable to order from the lobby after the lobby had close to customers. The district court granted Jack-in-the-Box’s motion to dismiss, and the plaintiff appealed. As usual, the blog entry is divided into categories, and they are: majority opinion; dissenting opinion (Judge Watford); and thoughts/takeaways. Of course, the reader is free to look at any or all of the categories.

 

I

Majority Opinion

 

  1. Prevailing on a title III discrimination claim means the plaintiff has to show: 1) she is disabled; 2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and 3) the plaintiff was denied public accommodations by the defendant because of her disability.
  2. A facially neutral policy violates the ADA only if it burdens a plaintiff in a manner different and greater than it burdens others.
  3. The refusal to serve food to pedestrians at drive-through windows did not impact blind people differently or in a greater manner than the significant population of people without disabilities lacking access to motor vehicles. That is, the policy burdens plaintiffs in precisely the same manner as individuals without disabilities wishing to purchase food when indoor dining is not available at the restaurants and who do not drive or have access to motor vehicles.
  4. If individuals without disabilities lacking access to motor vehicles wish to purchase food at Jack-in-the-Box restaurants when the dining rooms are closed, they face the same exact burden as blind individuals, i.e. they must arrive at the drive-through window in a vehicle driven by someone else.

 

II

Dissenting Opinion (Judge Watford)

 

  1. Title III of the ADA contains a general prohibition stating that no person shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. 42 U.S.C. §12182(a).
  2. Discrimination is defined to include a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodation to individuals with disabilities, unless the entity can demonstrate that making such modifications fundamentally alters the nature of such goods, services, facilities, privileges, advantages, or accommodations. 42 U.S.C. §12182(b)(2)(A)(ii).
  3. 42 U.S.C. §12182(b)(2)(A)(ii) goes beyond merely requiring patrons with disabilities to be treated the same as patrons without disabilities. Indeed, in some situation, treating patrons with disabilities the same as treating patrons without disabilities is exactly what is prohibited by this provision. In other words, preferential treatment of people with disabilities is sometimes required by the ADA.
  4. It is true that the Jack-in-the-Box policy is facially evenhanded. That is, under the policy, all patrons are required during certain hours to use the drive-through in order to obtain access to the good Jack-in-the-Box offers. However, the Ninth Circuit has repeatedly held that facially neutral policies can violate the ADA when such policies unduly burden persons with disabilities even when such policies are consistently enforced.
  5. The drive-through only policy unduly burdens the blind because they are unable to drive as a result of their disability.
  6. It is irrelevant that other people are also unable to access Jack-in-the-Box’s goods because they cannot drive for reasons not protected under the ADA.
  7. The blind and others whose disabilities preclude them from driving are entitled to a reasonable modification of the drive-through only policy because that is what is necessary to give them full and equal enjoyment of the goods that Jack-in-the-Box offers.
  8. Even if affording such an accommodation to the blind is regarded as preferential treatment, such accommodations are not only contemplated by the ADA, they are required.
  9. Jack-in-the-Box’s other concerns can be addressed at a later stage of the proceedings that would consider the following: 1) the modifications requested by plaintiffs must of course be reasonable, taking into account the cost of such modification, disruption of the entity’s business, and safety concerns; and 2) the modification do not have to be offered if Jack-in-the-Box can show that the modification would fundamentally alter the nature of the goods it provides. Such question cannot be resolved on a motion to dismiss, which is why plaintiffs claim should have been allowed to proceed.

 

III

 

Thoughts/Takeaways

 

  1. As we discussed here, a district court in Illinois reached the same conclusion. I would expect if that district court of Illinois decision was appealed, the Seventh Circuit would affirm it.
  2. The Supreme Court is hearing a case shortly to decide whether disparate impact is a part of §504 of the Rehabilitation Act. That particular case is such that a strong argument can be made that disparate impact is not involved there at all, but rather that is a case of disparate treatment. Szwanek is a true disparate impact situation.
  3. Both the majority and the dissent agree that disparate impact is a part of the ADA.
  4. The dissent says that the key is that the blind or visually impaired are unable to drive is the critical feature and that it is irrelevant that other people cannot access Jack-in-the-Box for reasons not protected under the ADA. So, the dissent is essentially saying that the majority is not comparing the right things.
  5. While the dissent would allow the case to go forward, the dissent does note that the plaintiffs would not be out of the woods even then. Jack-in-the-Box would have the very real defense of fundamental alterations to the nature of the business, especially considering the labor shortage that exists currently in the fast food industry. Even so, the dissent says that should be decided later on in the proceedings (I would guess at the summary judgment stage).
  6. A question arises if the defense is so strong so that the case would in all probability be knocked out at the summary judgment stage, why not just knock it out at the motion to dismiss stage and save lots of litigation costs? The response to that would be at the motion to dismiss stage, the question is whether a claim is stated and not whether a claim will stick.
  7. Even assuming the dissenting opinion prevailed, it does seem to me that Jack-in-the-Box would have a very strong defense of fundamental alteration to the nature of the business.
  8. Will the Circuit Courts of Appeals split on this question? The dissenting opinion raises the possibility that they might. I am not sure where the split would come from since the Ninth Circuit has taken the side of Jack-in-the-Box. The 11th Circuit can be very pro disability, but I am not sure the 11th Circuit would not agree with the Ninth Circuit given a similar fact pattern. If it did get to the United States Supreme Court, I wonder how they might deal with this situation, especially since the defense offered by Jack-in-the-Box is so strong. At this point, I am not going to hazard a guess at the how the Supreme Court might decide such a case.
  9. Causation is no longer something resembling sole cause as a result of the case we discussed here.
  10. When referring to people with vision loss, it is important to note that being blind and being visually impaired are not at all the same thing to members of the vision loss community. Hence, the correct terminology would be either, “blind/visually impaired,” or “blind or visually impaired.”
  11. Whether a person uses “disabled,” or “person with a disability,” is a matter of personal choice. Either is okay.

Before getting started on the blog entry of the week, the Atlanta Braves are world champions!! Our local school district is not going to have school tomorrow. It was senior skip day and the Atlanta Braves parade is tomorrow. So, the decision not to have school makes perfect sense. The community we live in is about 20 minutes directly east of the Atlanta capital building. The county we live in is also shutting down its school system for tomorrow as well. Congratulations to the Braves!

 

Also, CMS and OSHA have now released their interim final rules on Covid-19 vaccination. I am sure labor and employment and health law bloggers will be all over that. I don’t rule out commenting on either or both of those regulations in the future, but it is entirely possible that other bloggers will be very comprehensive about it. So, I will wait to see what develops there.

 

Today’s blog entry deals with the question of whether police officers and forces who do not understand the rights of people with disabilities can be held liable for interfering with their protected rights when a person with a disability with a service animal gets thrown out of the place of public accommodation. The case is Wilhelm v. City of Alexandria, decided by the United States District Court for the Western District of Louisiana on February 7, 2020, which can be found here. I have actually in another life been to Alexandria, Louisiana. A very nice town. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning granting summary judgment to defendants on ADA claims; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.

 

I

Facts

 

  1. At approximately 9:30 p.m. on July 22, 2017, Wilhelm and her fiancé Parker went to Buds N Suds, a bar in Alexandria, Louisiana to celebrate their engagement. ECF Nos. 17-2 at 1, 17-6 at 23-24.
  2. Wilhelm brought her dog, Viggo, with them. ECF Nos. 17-2 at 1, 1-2 at 1. Viggo is a very large eight-year-old Nebolish mastiff. ECF Nos. 17-2 at 1, 17-6 at 18-19.
  3. Shortly after they entered the bar, Buds N Suds’s security guard Mumford told Wilhelm she could not bring Viggo inside. ECF Nos. 17-2 at 1, 17-6 at 25, 17-7 at 2. Mumford was reportedly acting at the direction of Buds N Suds’s owner, Michael Barnhill (“Barnhill”), who did not want Viggo inside the bar because he was turning away customers and created a liability issue. ECF Nos. 17-2 at 1-2, 18.
  4. Wilhelm refused to leave and remained inside the bar with Parker and Viggo for approximately two hours. ECF Nos. 17-2 at 2, 17-6 at 25.
  5. Because Wilhelm refused to leave, Mumford called the Alexandria Police Department. ECF Nos. 17-2 at 2, 17-6 at 26. Before the police arrived, Wilhelm, Parker, and Viggo went outside. ECF Nos. 17-2 at 2, 17-6 at 27.
  6. Officers Helminger and Voorhies responded to the scene. Upon arrival, Helminger and Voorhies spoke to Mumford and Barnhill, who explained they wanted Wilhelm to leave. ECF Nos. 17-2 at 2, 17-4 at 1, 17-5 at 1, 19.
  7. The officers then went to speak to Wilhelm, who was seated outside on a picnic table with Viggo standing by her side. ECF Nos. 17-2 at 2, 19. Parker was standing nearby. Id.
  8. Wilhelm told the officers she felt she had the right to remain on the property with Viggo because he is her “service dog.” ECF Nos. 17-2 at 2-3, 19.
  9. Voorhies explained that Wilhelm was on private property and the owner wanted her to leave. ECF Nos. 17-2 at 3, 19. Wilhelm continued to argue her position. Id.
  10. Voorhies then explained to Wilhelm if she did not leave she would be arrested for “remaining after being forbidden.” ECF Nos. 17-2 at 3, 19.
  11. Voorhies also explained to Wilhelm if she felt she was being discriminated against by Buds N Suds, she had the right to get an attorney and pursue a civil matter against the bar. ECF Nos. 17-2 at 3, 19.
  12. Wilhelm, Parker, and Viggo finally complied and left the bar. ECF Nos. 17-2 at 3, 19.
  13. Throughout the encounter, the officers remained extremely calm and polite, even after being called “dumb.” ECF Nos. 17-2 at 3, 19.
  14. At no time did either officer use any force against Wilhelm, Parker, or Viggo. ECF Nos. 17-2 at 3, 18, 19.
  15. Viggo does not qualify as a “service animal” under the ADA. ECF Nos. 17-2 at 3, 17-9 at 2-25.
  16. No history existed between the plaintiff and the City of Alexandria with respect to ADA noncompliance issues in the past.
  17. Plaintiff also filed excessive force claims, which we are not going to discuss in this blog entry.

 

II

Court’s Reasoning Granting Summary Judgment to Defendants on ADA Claims

 

  1. In a footnote, the court noted that there is no individual liability under the ADA and parallel 42 U.S.C. §1983 claims are not allowed either.
  2. The Fifth Circuit has allowed title II claims in the specific context of police officers failing to reasonably accommodate the known limitations of persons with disabilities they detain.
  3. Since the ADA does not require clairvoyance, the burden is on the plaintiff to specifically identify the disability and resulting limitations, and to request an accommodation in direct and specific terms.
  4. The Fifth Circuit has also held that title II does not apply to an officer’s on the street response to reported disturbances or other similar incidents, whether or not those calls involve subjects with mental disabilities, prior to the officer securing the scene and ensuring that there is no threat to human life.
  5. To establish a prima facie case of discrimination under title II of the ADA, plaintiff have to demonstrate that: 1) he or she is qualified per the ADA; 2) he or she is being excluded from participation in, or being denied benefits of, services, program, or activities but with the public entity is responsible, or is otherwise being discriminated against by the public entity; and 3) such exclusion, denial of benefits, or discrimination is by reason of his or her disability.
  6. The two officers who were called to the scene told the plaintiff that the matter was a civil matter and if she felt she was being discriminated against by the place of public accommodation, she should then retain an attorney and pursue a civil suit.
  7. Whether a service dog is permitted in a restaurant is a straightforward question of law.
  8. The plaintiff had no previous experience with the officers or the City of Alexandria with respect to ADA noncompliance issues. As a result, there wasn’t intentional discrimination.
  9. In a footnote, the court said that in order to recover compensatory damages for disability discrimination under title II of the ADA, a plaintiff must show that the discrimination was intentional, i.e. more than disparate impact. In this same footnote, the court said that the Fifth and Ninth Circuit have taken the position that an entity lacking knowledge and understanding about ADA compliance requirements does not even suggest deliberate indifference, which is the standard you have to meet to get damages under title II of the ADA, which we discussed here.
  10. While plaintiff allegations were poorly pleaded and the lack of evidence proved fatal to her claims, her complaint was not frivolous, unreasonable, or groundless. Therefore, the defendants request for costs was denied.

 

III

Thoughts/Takeaways

 

  1. No individual liability exists for violating the ADA in any of the titles, with a rare exception in the 11th Circuit pertaining to public entities per this case.
  2. If the reasoning of this court is taken at face value, there is no incentive for police forces to learn about the rights of people with disabilities because they never have to worry about damages since ignorance does not equal deliberate indifference.
  3. A critical piece of this case was that the plaintiff had no history of working with the police force regarding ADA noncompliance issues. If the plaintiff had such a history, it is possible the outcome of this case would be different.
  4. Within the next couple of months, the Supreme Court will be hearing a case asking the question of whether §504 of the Rehabilitation Act includes a disparate impact cause of action.
  5. Another way the police force can escape damages for not knowing the law in these situations is to simply advise the individual that they can retain a private attorney to sue the owner for disability discrimination.
  6. Another option for a plaintiff in this situation to consider is to file a claim under the Rehabilitation Act. True, the standard for damages is the same. However, 29 U.S.C. §794(b)(1)(A) states that all operations of an instrumentality of local governments must be meaningfully accessible to persons with disabilities. As such, the Rehabilitation Act goes further than the requirements of title II, which focuses on program accessibility. That said, many cases have held that title II applies to everything that a public entity does.
  7. The case doesn’t discuss 42 U.S.C. §12203(b), the ADA’s interference provisions.
  8. What is concerning about the case that there is now an incentive for police forces to not know the ADA. The history requirement for establishing deliberate indifference has the weird incentive of actually promoting serial suits.
  9. The Supreme Court will also be hearing a case asking the question of whether §504 of the Rehabilitation Act includes damages for emotional distress. If a Rehabilitation Act claim had been filed in this case, whether §504 allows for emotional distress would be a very real issue as actual damages do not seem to be in existence here.
  10. The facts listed by the court says a service dog was not involved. However, no mention of that is found in the court’s reasoning. That is interesting in and of itself because it should have been game over for the plaintiff at that point.
  11. The court said that the plaintiff has the burden to request accommodations in specific and direct terms. However, we know, as we discussed here, that magic words are not required.
  12. The Supreme Court let stand a Ninth Circuit decision, here, holding that title II of the ADA applies to arrests when it decided she can on other grounds, as we discussed here.

Today’s case, Kaswatuka v. United States Department of Homeland Security, a published decision from the Fifth Circuit that came down on August 2, 2021, here, deals with an issue we have not dealt with before in our blog. This case concerns a person who works as a security officer at the DFW international Airport. She alleged violations of the ADA among other things. With respect to the ADA, the Department of Homeland Security defended on the grounds that the Aviation and Transportation Security Act preempted the ADA. The court winds up agreeing with the Department of Homeland Security. As usual, the blog entry is divided into categories and they are: court’s reasoning focusing on the applicability of ADA taken directly from the opinion; 49 U.S.C. §44935(a)-(g); and thoughts/takeaways. The reader is free to focus on any or all of the categories. I could see the reader skipping §II perhaps. I can’t see the reader skipping §§I, III.

 

I

Court’s Reasoning Focusing on the Applicability of the ADA (taken directly from the opinion).

 

The ATSA was enacted following the attacks of September 11, 2001 and established the TSA. See Field v. Napolitano, 663 F.3d 505, 508 (1st Cir. 2011); 49 U.S.C. § 114. The ATSA affords the TSA Administrator discretion in developing employment standards for airport security screeners. Id. § 114(e). The ATSA states that “[t]he Administrator shall establish qualification standards for individuals to be hired . . . as security screening personnel. Notwithstanding any other provision of law, those standards shall require, at a minimum, an individual . . . to meet such other qualifications as the Administrator may establish[.]” 49 U.S.C. § 44935(e)(2)(A)(iv) (emphasis added). It also explains that “[n]otwithstanding any other provision of law,” screeners must “possess basic aptitudes and physical abilities, including color perception, visual and aural acuity, physical coordination, and motor skills[.]” 49 U.S.C. § 44935(f)(1)(B). “[T]he use of . . . a `notwithstanding’ clause clearly signals the drafter’s intention that the provisions of the `notwithstanding’ section override conflicting provisions of any other section.” Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18 (1993). As sections of the ATSA conflict with the Rehabilitation Act, many courts have held that “the language of the ATSA plainly precludes security screeners from bringing suit under certain of the federal employment statutes . . . including the Rehabilitation Act.” See Field v. Napolitano, 663 F.3d 505, 512 (1st Cir. 2011)see also Coleman v. Sec’y U.S. Dep’t of Homeland Sec., 649 F. App’x 128, 129-30 (3d Cir. 2016) (agreeing with the district court that it lacked subject-matter jurisdiction because the ATSA precludes TSA officers from bringing claims under the Rehabilitation Act); Joren v. Napolitano, 633 F.3d 1144, 1146 (7th Cir. 2011) (“We now join every other circuit to have considered the question and conclude that the plain language of the ATSA preempts application of the Rehabilitation Act to security screeners”); Castro v. Sec’y of Homeland Sec., 472 F.3d 1334, 1337 (11th Cir. 2006) (“The plain language of the ATSA indicates that TSA need not take the requirements of the Rehabilitation Act into account when formulating hiring standards for screeners.”). We therefore agree with the district court that Kaswatuka cannot proceed with a Rehabilitation Act claim as it is precluded by the ATSA.

 

II

49 U.S.C. §44935(a)-(g)

(a) Employment standards. –The Under Secretary of Transportation for Security shall prescribe standards for the employment and continued employment of, and contracting for, air carrier personnel and, as appropriate, airport security personnel.  The standards shall include–

(1)  minimum training requirements for new employees;

(2)  retraining requirements;

(3)  minimum staffing levels;

(4)  minimum language skills;  and

(5)  minimum education levels for employees, when appropriate.

(b) Review and recommendations. –In coordination with air carriers, airport operators, and other interested persons, the Under Secretary shall review issues related to human performance in the aviation security system to maximize that performance.  When the review is completed, the Under Secretary shall recommend guidelines and prescribe appropriate changes in existing procedures to improve that performance.

(c) Security program training, standards, and qualifications.–(1)  The Under Secretary–

(A)  may train individuals employed to carry out a security program under section 44903(c) of this title;  and

(B)  shall prescribe uniform training standards and uniform minimum qualifications for individuals eligible for that training.

(2)  The Under Secretary may authorize reimbursement for travel, transportation, and subsistence expenses for security training of non-United States Government domestic and foreign individuals whose services will contribute significantly to carrying out civil aviation security programs.  To the extent practicable, air travel reimbursed under this paragraph shall be on air carriers.

(d) Education and training standards for security coordinators, supervisory personnel, and pilots.–(1)  The Under Secretary shall prescribe standards for educating and training–

(A)  ground security coordinators;

(B)  security supervisory personnel;  and

(C)  airline pilots as in-flight security coordinators.

(2)  The standards shall include initial training, retraining, and continuing education requirements and methods.  Those requirements and methods shall be used annually to measure the performance of ground security coordinators and security supervisory personnel.

(e) Security screeners.–

(1) Training program. –The Under Secretary of Transportation for Security shall establish a program for the hiring and training of security screening personnel.

(2) Hiring.–

(A) Qualifications. –Within 30 days after the date of enactment of the Aviation and Transportation Security Act, the Under Secretary shall establish qualification standards for individuals to be hired by the United States as security screening personnel.  Notwithstanding any provision of law, those standards shall require, at a minimum, an individual–

(i)  to have a satisfactory or better score on a Federal security screening personnel selection examination;

(ii)  to be a citizen of the United States or a national of the United States, as defined in section 1101(a)(22)    1 of the Immigration and Nationality Act ( 8 U.S.C. 1101(a)(22) );

(iii)  to meet, at a minimum, the requirements set forth in subsection (f);

(iv)  to meet such other qualifications as the Under Secretary may establish;  and

(v)  to have the ability to demonstrate daily a fitness for duty without any impairment due to illegal drugs, sleep deprivation, medication, or alcohol.

(B) Background checks. –The Under Secretary shall require that an individual to be hired as a security screener undergo an employment investigation (including a criminal history record check) under section 44936(a)(1) .

(C) Disqualification of individuals who present national security risks. –The Under Secretary, in consultation with the heads of other appropriate Federal agencies, shall establish procedures, in addition to any background check conducted under section 44936 , to ensure that no individual who presents a threat to national security is employed as a security screener.

(3) Examination;  review of existing rules. –The Under Secretary shall develop a security screening personnel examination for use in determining the qualification of individuals seeking employment as security screening personnel.  The Under Secretary shall also review, and revise as necessary, any standard, rule, or regulation governing the employment of individuals as security screening personnel.

(f) Employment standards for screening personnel. 

(1) Screener requirements. –Notwithstanding any provision of law, an individual may not be deployed as a security screener unless that individual meets the following requirements:

(A)  The individual shall possess a high school diploma, a general equivalency diploma, or experience that the Under Secretary has determined to be sufficient for the individual to perform the duties of the position.

(B)  The individual shall possess basic aptitudes and physical abilities, including color perception, visual and aural acuity, physical coordination, and motor skills, to the following standards:

(i)  Screeners operating screening equipment shall be able to distinguish on the screening equipment monitor the appropriate imaging standard specified by the Under Secretary.

(ii)  Screeners operating any screening equipment shall be able to distinguish each color displayed on every type of screening equipment and explain what each color signifies.

(iii)  Screeners shall be able to hear and respond to the spoken voice and to audible alarms generated by screening equipment in an active checkpoint environment.

(iv)  Screeners performing physical searches or other related operations shall be able to efficiently and thoroughly manipulate and handle such baggage, containers, and other objects subject to security processing.

(v)  Screeners who perform pat-downs or hand-held metal detector searches of individuals shall have sufficient dexterity and capability to thoroughly conduct those procedures over an individual’s entire body.

(C)  The individual shall be able to read, speak, and write English well enough to–

(i)  carry out written and oral instructions regarding the proper performance of screening duties;

(ii)  read English language identification media, credentials, airline tickets, and labels on items normally encountered in the screening process;

(iii)  provide direction to and understand and answer questions from English-speaking individuals undergoing screening;  and

(iv)  write incident reports and statements and log entries into security records in the English language.

(D)  The individual shall have satisfactorily completed all initial, recurrent, and appropriate specialized training required by the security program, except as provided in paragraph (3).

(2) Veterans preference. –The Under Secretary shall provide a preference for the hiring of an individual as a security screener if the individual is a member or former member of the armed forces and if the individual is entitled, under statute, to retired, retirement, or retainer pay on account of service as a member of the armed forces.

(3) Exceptions. –An individual who has not completed the training required by this section may be deployed during the on-the-job portion of training to perform functions if that individual–

(A)  is closely supervised;  and

(B)  does not make independent judgments as to whether individuals or property may enter a sterile area or aircraft without further inspection.

(4) Remedial training. –No individual employed as a security screener may perform a screening function after that individual has failed an operational test related to that function until that individual has successfully completed the remedial training specified in the security program.

(5) Annual proficiency review. –The Under Secretary shall provide that an annual evaluation of each individual assigned screening duties is conducted and documented.  An individual employed as a security screener may not continue to be employed in that capacity unless the evaluation demonstrates that the individual–

(A)  continues to meet all qualifications and standards required to perform a screening function;

(B)  has a satisfactory record of performance and attention to duty based on the standards and requirements in the security program;  and

(C)  demonstrates the current knowledge and skills necessary to courteously, vigilantly, and effectively perform screening functions.

(6) Operational testing. –In addition to the annual proficiency review conducted under paragraph (5), the Under Secretary shall provide for the operational testing of such personnel.

III

Thoughts/Takeaways

 

  1. A plain reading of the statute, which §§(a)-(g) can be found in §II of this blog entry immediately above, indicates that the Under Secretary has the authority to establish whatever qualifications it wants to establish for security screeners including those that screen out people with disabilities. It is also clear that reasonable accommodations do not factor into any of this according to the plain language of the statute.
  2. The plain language of the statute only applies to security screening personnel. I can’t tell from either the opinion or the complaint whether the plaintiff was security screening personnel as the term used in both places is, “security officer.” The opinion itself only refers to the plaintiff working as a security officer. Is that the same thing as a security screener? The plain language of the statute suggests that the lack of recourse for any person with the disability working for the Transportation Security Administration only applies to security screening personnel.
  3. A lesson in how not to do a job description is contained in §44935(f)(1)(B). That is, job descriptions should be organic and not focused on physical abilities. The screener requirements are clearly focused on physical abilities. There may be ways to accomplish what needs to be accomplished without focusing on the physical abilities side of things. That said, if there isn’t, then it is an essential function of the job that simply cannot be done with or without reasonable accommodations, assuming we are utilizing ADA analysis, which we are not. The Job Accommodation Network is fabulous with these kinds of issues.
  4. It is clear from the statute that if you are a person with a disability working for the Transportation Security Administration as a security screener, it is perfectly permissible for the Transportation Security Administration to discriminate against that person based upon their disability and there will be no consequences for it. Same goes for if a Transportation Security Administration employee working as a security screener becomes a person with a disability. Clearly, no right to a reasonable accommodation either.
  5. According to the opinion, no Circuit Court split exists. The lack of a Circuit Court split is not surprising because the language of the statute is very clear. I could see a Circuit Court split developing if the Transportation Security Administration employee was not a security screener. In that situation, you would have a strange paradigm where security screeners with disabilities have absolutely no protection under §501 of the Rehabilitation Act, but employees of the Transportation Security Administration who are not security screeners are subject to §501 of the Rehabilitation Act. Could Congress have really intended that?
  6. One wonders if Pres. Biden could not issue an executive order saying that the Transportation Security Administration has to comply with §501 of the Rehabilitation Act with respect to its security screeners? Would such an order violate the separation of powers in light of the plain language of the statute with respect to security screeners?
  7. It will be interesting to see whether any executive action is forthcoming. It will also be interesting to see if a Transportation Security Administration employee who is not a security screener is able to get past this decision. I am making the assumption that a Transportation Security Administration employee is not always a security screener. That assumption would seem to be a matter of common sense. That assumption is also backed up by a plain reading of 49 U.S.C. §44935(d), which you can find above.
  8. One of the problems that people with disabilities have, is that they don’t have easy access to competent attorneys. Law is unfortunately a business. One of the things I consistently see in my practice is that many people with disabilities simply can’t afford competent legal counsel. The other thing I see in my practice quite a bit is that there are not a lot of people litigating on behalf of people with disabilities in the title II and title I context. It seems that disability discrimination scares a lot of attorneys off for a variety of reasons, not the least of which is that the ADA, as we know, can get very complicated in a hurry. The duty of competence would demand that attorneys who don’t know this area of law the way they should, would get attorneys/consultants involved who do know the area. It often doesn’t happen that way though.

Many times before in this blog, such as here and here and here, we have discussed effective communication rules. On October 6, 2021, the American Bar Association issued Formal Opinion 500. Formal Opinion 500, here, now takes effective communication and makes it a matter of professional responsibility and a matter of legal ethics that attorneys must follow. This blog entry discusses Formal Opinion 500 and then offers my thoughts/takeaways on it, which are also the categories for this blog entry. While Formal Opinion 500 extends beyond persons with disabilities, the focus of this blog entry is just on persons with disabilities.

 

I

Formal Opinion 500

 

  1. Communication between a lawyer and a client is necessary for the client to participate effectively in the representation and is a fundamental component of nearly every client lawyer relationship.
  2. When a client’s ability to receive information from or convey information to a lawyer is impeded because the lawyer and the client do not share a common language or the client has a hearing, speech, or vision disability or other noncognitive physical condition, the duties of communication and competence are undiminished. In such a situation, the lawyer may be obligated to take measures appropriate to the client’s circumstances to ensure that those duties are capably discharged.
  3. When reasonably necessary, the lawyer should arrange for communication to take place through an impartial interpreter or translator capable of comprehending and accurately explaining the legal concepts involved and who will attend to and abide by the duty of confidentiality. The lawyer should also use other assistive or language translation technology when necessary.
  4. Where language considerations affecting the reciprocal exchange of information exists, a lawyer must ensure that the client understands the legal significance of translated or interpreted communications and that the lawyer understands the client’s communications.
  5. Assistive technologies include closed captioning, live transcription, screen readers, refreshable braille display, and speech recognition software. Other technologies include electronic text to voice translation software and devices, telecommunication relay services, video relay services, and video remote interpreting.
  6. Depending upon the circumstances, using technology instead of or in addition to the engagement of a human interpreter or translator may be appropriate and sufficient to satisfy the ethical obligations of communication and competence. Keep in mind, these technologies are rapidly changing and that underscores the duty of lawyers to develop an understanding of relevant technology.
  7. The adoption of the ADA has led to growing awareness among lawyers that clients seeking representation may not be able to hear, speak, or read without accommodation.
  8. The foundational rule of competence (Model Rule 1.1) and communication (Model Rule 1.4) in the ABA model rules of professional conduct prescribe a baseline that when a lawyer and client cannot communicate with reasonable efficacy, the lawyer must take steps to engage the services of a qualified and impartial interpreter and/or employing appropriate assistive or language translation device to ensure that the client has sufficient information to intelligently participate in decisions relating to the representation and that the lawyer is procuring adequate information from the client to meet the standards of competent practice.
  9. Lawyers must communicate with clients in a manner reasonably understandable to those clients so that clients know what is happening on their matters and can participate intelligently in the representation.
  10. Firms and other legal organizations may be legally required to provide and pay for auxiliary aids and services in order to provide a client with reasonable accommodations under the ADA because law offices are explicitly included in the definition of public accommodations per 42 U.S.C. §12181(7)(f).
  11. The ADA does not allow entities to pass along the cost of auxiliary aids and services to the person with the disability.
  12. The duty of communication under current Model Rule 1.4 includes the duties: 1) to promptly inform the client of information when the client’s informed consent is required; 2) to reasonably consult with the client about the representation; 3) to keep the client reasonably informed about the status of the matter; 4) to promptly comply with reasonable requests for information; and 5) to consult with the client on relevant limitations on the lawyer’s ability to provide legal assistance. It is also incumbent on the lawyer to ensure that the client has sufficient information to participate intelligently in the client lawyer relationship, to explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
  13. Reasonably understandable client lawyer communication is not only necessary to enable the client to make important decisions, it is also an element of the lawyer’s obligation to provide the client with competent representation under Model Rule 1.1. If a lawyer does not communicate with the client in a mutually understood language, it is doubtful that the lawyer is exercising the thoroughness and preparation necessary to provide the client with competent representation.
  14. Communication between a lawyer and the client is both the means by which they client is provided with the advice and explanation needed to make important decisions and the vehicle as to how the lawyer obtains information required to address the client’s legal matter appropriately.
  15. The information that must be provided when discharging the duty to explain a matter reasonably is what is appropriate for a client who is a comprehending and responsible adult.
  16. If communications issues are such that the client cannot adequately comprehend the lawyer’s advice and other communication and therefore, cannot participate intelligently in the representation, or the lawyer is unable to ascertain the information needed to competently assist the client, the lawyer must take measures to establish a reasonably effective mode of communication. Ordinarily, that will require the engagement of a qualified impartial interpreter or translator or in some situations the use of an appropriate assistive or language translation device so that the lawyer and client can reasonably understand one another to a degree compatible with the lawyer’s professional obligations.
  17. Ordinarily, the mode of communication to be used during the representation of the matter is to be decided between the lawyer and the client. In the case of language access issues, consultation with the client is appropriate if possible.
  18. A lawyer cannot passively leave the decision to the client or thrust the responsibility for making arrangements for interpretation or translation entirely upon the client.
  19. Once it is reasonably apparent that without an interpreter, translator, or an appropriate assistive or language translation device that there cannot be a reliably understandable reciprocal exchange of information between the lawyer and the client, the lawyer must take steps to help the client understand the need for and purpose of an interpreter or translator, and when reasonably necessary, take steps to secure such services.
  20. It is the lawyer’s affirmative responsibility to ensure the client understands the lawyer’s communications and that the lawyer understand the client’s communications. Where doubts exist, that doubt should be resolved in favor of getting an interpreter, translator, or an appropriate assistive or language translation device.
  21. In general, an individual engaged to facilitate communication between the lawyer and the client must be qualified to serve as an interpreter or translator in the language required, familiar with and able to explain the law and legal concepts in that language, and be free of any personal or other potentially conflicting interest that create the risk of bias or prevents the individual from providing impartial interpretive or translation services.
  22. The ADA generally obligates the lawyer to bear the cost of procuring such services when they are necessary to accommodate a disability.
  23. In assessing the qualifications of the prospective interpreter or translator, the lawyer should verify that the individual is skilled in the particular language or dialect required. In addition, the lawyer should confirm that the individual has the expertise needed to comprehend the legal concepts/terminology at issue so that the legal advice being provided is communicated accurately in the language or format acceptable to the client.
  24. In most situations, the verification of a prospective interpreter’s or translator’s level of skill and capacity to convey legal concepts is best achieved through the engagement of the services of an outside professional to assist the lawyer in the delivery of legal services.
  25. Depending on the circumstances, alternative arrangements may suffice. For example, a lawyer may look to a multilingual lawyer or a nonlawyer staff member within the firm to facilitate communication with the client. If a nonprofessional interpreter is contemplated, the lawyer should proceed cautiously in light of the reduced ability to assess the nonprofessional’s level of proficiency and the increased risk of inaccuracies in interpretation or translation.
  26. In some instances, a client’s friend or a family member may function as a viable interpreter or translator. However, particular care must be taken when using a client’s relatives or friends because of the substantial risk that an individual in a close relationship with the client may be biased by a personal interest in the outcome of the representation. In such situation, the lawyer must exercise appropriate diligence to guard against the risk that the lay interpreter is distorting or altering communications in a way that skews the information provided to the lawyer or the advice given to the client.
  27. A lawyer should be able to verify a prospective translator’s or interpreter’s professional qualifications in the same manner use when engaging the services of an expert, i.e., by evaluating the individual’s training, experience, certification, and professional standing.
  28. Relatives and friends of the client may also be less reliable in providing interpretation and translation services when needed because they lack accountability to the lawyer or firm derived from an employment or other contractual relationship.
  29. If obtaining necessary services would place an unreasonable financial burden on the lawyer or if necessary services are unavailable, the lawyer should ordinarily decline or withdraw from the representation or associate with the lawyer or law firm that can appropriately address the language access issue.
  30. Under Model Rule 5.3, the lawyer must make reasonable efforts to ensure that the interpretive or translation services are provided in a manner compatible with the lawyer’s ethical obligations, particularly Model Rule 1.6, duty of confidentiality.
  31. Lawyer should look for cues indicating that the nonprofessional interpreter is speaking for the client or filtering the attorney’s statement rather than impartially conveying the communications. In such situation, it is prudent for the lawyer to consult with the client about the risks and benefits of using a family member as an interpreter or translator.
  32. Attorneys representing clients through interpreters should ensure that the interpreter has a clear understanding of the obligation to keep the attorney-client communication confidential.

 

II

Thoughts/Takeaways

 

  1. Compliance with the ADA’s effective communication regulations is now more than a matter of ADA compliance. It is also now a matter of professional responsibility and compliance with legal ethical rules.
  2. Just when is the communication not effective? As a preventive law matter, lawyers would do well to read Silva I, which we discussed here.
  3. Lawyers should always use an impartial qualified interpreter.
  4. With respect to the culturally deaf, keep in mind that it is not unusual for the Deaf to not be able to read beyond a fourth grade reading level. So, live interpreters may be your only option. Further, video remote interpretation may not be so great either. Conversations over the phone where the culturally deaf individual uses a video relay phone to talk to an interpreter who responds to the lawyer can work well but it depends upon how technical the information is because of the skill of the video relay interpreter can vary considerably.
  5. Live transcription (AI) may work well depending upon how technical the information is. It is also going to depend upon the reading level of the prospective client.
  6. Technology is rapidly changing and lawyers have an ethical obligation to keep on top of the rapidly changing technology when it comes to being able to accommodate their clients so that effective communication occurs.
  7. Firms and other legal organizations are legally required to provide and pay for auxiliary aids and services in order to provide the client with reasonable modifications under the ADA in order to have effective communication with the client. The actual opinion uses the term, “may be legally required.” There is no “may be,” about it. Since the entire resources of the entity are looked at when it comes to undue burden, a lawyer is going to have a hard time showing that the costs of providing the auxiliary aid and service is going to be too much under the ADA. The lawyer is also going to have a hard time showing that providing such an auxiliary aid or service fundamentally alters the nature of their business. In fact, I don’t see how that is even possible.
  8. The ADA does not allow cost of auxiliary aids and services to be passed along to the person with the disability.
  9. While it is debatable whether the interactive process is required under title III of the ADA, it is certainly good preventive law to engage in the interactive process. Engaging in the interactive process with the person with the disability will prevent a lot of future problems down the road. It will also likely save you money. I would submit that the interactive process is necessary under title III and title II of the ADA because the very nature of providing reasonable modifications presumes an interactive process in the first place. For the do’s and don’ts of the interactive process, see this blog entry. Keep in mind, as we discussed here, that effective communication obligations may extend beyond the interactive process.
  10. While a lawyer cannot thrust the responsibility to make arrangement for interpretation or translation entirely upon the client, there isn’t anything wrong with asking the client for assistance as they may know the people to go to. The lawyer still bears the ultimate responsibility for paying for it and for making it happen.
  11. Qualified interpreters are so important. Definitely do not use family members or friends for interpreting. It is a really bad idea for many of the reasons noted in the opinion.
  12. I don’t think I understand where the authors of Formal Opinion 500 get the idea that the ADA generally obligates the lawyer to bear the cost of procuring auxiliary aids and services. The ADA obligates the lawyer to bear those costs. As mentioned above, it is unlikely that a defense will exist for not bearing those costs.
  13. Lawyer should confirm that the individual has the expertise needed to comprehend the legal concepts and terminology before providing any interpreter services.
  14. In the absence of some kind of extraordinary circumstance, I would not use nonprofessional interpreters, including family members, because of confidentiality issues, issues of bias, and accuracy issues.
  15. The ADA standard for providing auxiliary aids and services when necessary is undue burden. The formal opinion 500 talks about “unreasonable financial burden.” Undue burden has a completely different meaning and looks to the entire resources of the entity.
  16. A qualified interpreter for a culturally deaf individual is bound by their rules of ethics to keep communications between attorney and client confidential, which is yet another reason to use a qualified interpreter.
  17. To be fair to the authors of Formal Opinion 500, they note that the ADA is very much involved here and that the opinion’s purpose is not to set forth a lawyer’s ADA obligations. Similarly, I am not opining on a lawyer’s obligation to provide interpreters for non-disability reasons.
  18. Technology is changing rapidly. For example, Zoom is nowhere the same as it was six months ago when it comes to its accessibility features and its usability by deaf and hard of hearing individuals.
  19. As we know, title II and title III of the ADA use the term reasonable modifications and not reasonable accommodations but the terms, with one case as an outlier, mean the same thing.
  20. As we also know, the effective communication rules for title II and for title III are not precisely the same either. Title II has a primary consideration rule for the person with the disability while title III does not. Instead, title III presume some sort of interactive process.

Go Braves!

Today’s blog entry deals with two questions when it comes to regarded as claims. First, just what does a person have to show to qualify for a regarded as claim? Second, for the transitory and minor exception to apply, must that be a situation where the illness is both transitory AND minor? As we will see, plaintiff survives a motion to dismiss on both grounds even though the court applies a pre-ADA amendments standard to the first question. The case of the day is Matias v. Terrapin House, Inc. decided by the United States District Court for the Eastern District of Pennsylvania on September 16, 2021, here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning why plaintiff’s regarded as claim survives the motion to dismiss; transitory and minor; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.

 

I

Facts

 

Plaintiff was employed with Terrapin from approximately August 28, 2020 until November 22, 2020 as a direct support professional. She alleged that she received no discipline during the course of her employment until her termination on November 22, 2020. On that date, she informed Terrapin of her need for leave under the Family First Coronavirus Relief Act and disclose to Terrapin that she had received a positive Covid-19 test result. More particularly, on November 19, 2020 she texted a representative Terrapin to inform them that she felt ill. When the representative inquired into whether she was experiencing symptoms, she responded that she was losing her sense of taste and smell. Rather than provide leave, Terrapin terminated her on the same date she informed them of her positive Covid-19 test saying that she was not a good fit. She brought suit alleging violations of the Family First Coronavirus Response Act, the ADA, and the Pennsylvania Human Relations Act.

 

II

Court’s Reasoning Why Plaintiff’s Regarded as Claim Survives the Motion To Dismiss

 

  1. An individual meets the requirement of being regarded as having such an impairment if the individual establishes that he or she has been subjected to an action prohibited by the ADA because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
  2. To prevail, a plaintiff has to show that her employer misinterpreted information about her limitations to conclude that she was unable to perform a wide range or class of jobs.
  3. A plaintiff must show that the employer believed that a major life activity was substantially limited by the plaintiff’s impairment.
  4. An exception for ADA regarded as claims exists for impairments that are transitory and minor.
  5. In order to make out a regarded as claim, plaintiff must allege that her employer perceived her to have a disability and that her employer perceived that disability to substantially impair a major life activity.
  6. Citing to the joint guidance on long-haul Covid-19 put out by the DOJ and HHS, which we discussed here, Covid-19 is a physiological condition affecting one or more body systems.
  7. The guidance states that certain forms of Covid-19 can substantially limit major life activities, such as respiratory function, gastrointestinal function, and brain function for periods lasting months after first being infected.
  8. Loss of taste or smell is one of the common symptoms of long-haul Covid-19, and plaintiff felt that she was losing her sense of taste and smell.
  9. The immediate temporal proximity between plaintiff’s disclosure of her Covid-19 symptoms, her positive test result, and her termination raises a strong inference that her employer regarded her as disabled.

 

III

Transitory and Minor

  1. Courts have made clear that transitory and minor are two separate criteria and a defendant must establish both in order to prevail in its defense.
  2. CDC indicates that Covid-19 carries with it symptoms, including fever, chills, cough, shortness of breath, difficulty breathing, fatigue, muscle or body aches, headaches, new loss of taste or smell, sore throat, congestion, runny nose, nausea or vomiting, and diarrhea.
  3. According to the CDC, Covid-19 can damage the heart, blood vessel, kidneys, brain, skin, eyes, and gastrointestinal organs.
  4. The CDC recommends one seek immediate medical care if they experience trouble breathing, persistent pain or pressure in the chest, new confusion, inability to wake or stay awake, or pale, gray, or blue colored skin, lips, or nail beds.
  5. In a footnote, the court noted that it was taking judicial notice of certain facts regarding Covid-19 “posted by the CDC on its official website.
  6. On November 22, 2020, the day plaintiff was terminated, the CDC recorded over 176,000 new Covid-19 cases in the United States alone.
  7. The hospitalization and mortality profiles of the seasonal flu pale in comparison to those associated with Covid-19. While an average of 422,000 people in the United States are hospitalized each year due to the seasonal flu, domestic Covid-19 hospitalization between August 1, 2020 and September 10, 2021 totaling over 2,876,000 people. So when viewed from the perspective of mortality, Covid-19 proves to be more deadly than the seasonal flu. Therefore, Covid-19 viewed objectively is not minor as contemplated by the amendments to the ADA.
  8. An employer may not defeat regarded as coverage of an individual simply by demonstrating that it subjectively believed the impairment was transitory and minor. Instead, the covered entity must demonstrate that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) both transitory and minor.

IV

Thoughts/Takeaways

  1. Plaintiff survived a motion to dismiss despite the court applying the wrong standard in numerous places. You don’t see that a lot.
  2. The court refers to a plaintiff having to show that she was unable to perform a wide range or class of jobs. The only time this comes up is where the plaintiff alleges that working is the major life activity. Considering the amendments to the ADA, it is legal malpractice for a plaintiff’s attorney to allege working as the major life activity unless he or she absolutely has no other alternative. The wide range or class of jobs comes from Sutton v. United Airlines, here, which was overruled in many respects by the amendments to the ADA but not with respect to working as the major life activity.
  3. A plaintiff for a regarded as claim does not have to show that an employer believed that a major life activity was substantially limited. After the amendments, all a plaintiff has to show is that the employer regarded the individual as having a physical or mental impairment.
  4. Transitory and minor means exactly that. That is, for the transitory and minor exception for regarded as claims to come into play, the condition at issue must be BOTH transitory and minor. They are two separate criteria. As the court makes clear, Covid-19 is certainly not minor and it may or may not be transitory.
  5. Proximity between the adverse action and the right exercised always matters in these cases.
  6. Transitory and minor is an affirmative defense that must be established by the employer.
  7. The transitory and minor exception only applies to regarded as claims, though it can be helpful as a tool for figuring out whether a temporary disability is an actual disability per the actual disability prong.
  8. CDC guidelines was given judicial notice by the court. This could be very important for plaintiff attorneys to keep in mind when dealing with refusal to accommodate in the face of anti-mask and anti-vaccine policies where their client is immuno-compromised or at a much higher risk of severe consequences of getting Covid-19 due to underlying conditions.
  9. Transitory AND minor is an objective standard that is not dependent on an employer’s subjective belief.

Go Braves and White Sox! Congratulations to the Red Sox.

Today’s blog entry come from a case that I found through Law 360. It is a decision by Judge John Kness of the United States District Court for the Northern District of Illinois Eastern Division. The case is Magee v. McDonald’s USA, here, decided on October 5, 2021. The Law 360 article says we can expect an appeal. The issues raised by the case are just who is an operator for purposes of title III of the ADA and whether facially neutral policies can discriminate against persons with disabilities in violation of the ADA. As usual, the blog entry is divided into categories and they are: facts; McDonald’s is not an operator; McDonald’s facially neutral policy and plaintiff cannot show causation; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.

 

I

Facts

  1. Plaintiff is legally blind, suffers from macular degeneration, and cannot drive a car in the McDonald’s drive-through lane.
  2. Certain McDonald’s USA franchises only serve food late at night through the drive-through lane meaning that the plaintiff cannot order McDonald’s food late at night from those restaurants while at those McDonald’s unless he was in someone else’s vehicle.
  3. Plaintiff’s vision disability precludes him from operating a motor vehicle.
  4. Many McDonald’s restaurants close their dining lobby during late-night hours and offer only drive-through service. Late-night patrons of those restaurants have two options to obtain McDonald’s food. They can either order from a motorized vehicle through the restaurant’s drive-through window or they can order through Uber Eats.
  5. Plaintiff tried to walk through the drive-through lane during late-night hours. Each restaurant denied him service.
  6. Plaintiff’s visits to the California restaurant were part of a lawyer planned test of other McDonald’s restaurant to strengthen his case. His attorneys gave him the list of California-based McDonald’s restaurant to visit. His attorney suggested, plan, and paid for his California trip. Plaintiff visited many of the restaurants on the attorney provided list during the late-night hours. In fact, a friend of the plaintiff’s drove to the restaurants and parked in the lot where he then attempted to order food from the drive-through lane as a pedestrian to no avail. Plaintiff never attempted to order food from the drive-through as a passenger in a motorized vehicle.
  7. Neither the franchise agreement nor the operations and training manual include mandatory policies for serving restaurant patrons during the late-night hours. Both documents are also similarly silent concerning which parts of the restaurant must remain open during late-night hours. Finally, restaurants are authorized to decide whether to allow pedestrians to use the drive-through lane.

 

II

McDonald’s as the Franchisor Is Not an Operator

 

  1. The word operates means an entity that performs effectively the whole function of operating a business.
  2. Where the entity does not perform the whole function of operating a business, case law in the Seventh Circuit has said that such an entity is not an operator for purposes of title III.
  3. Some courts have even gone further by requiring for the operator label to apply to a franchisor, that the franchise agreement must specifically reflect the franchisor’s right to direct the franchisee to make an accessibility related change.
  4. Under the franchise agreement, franchisees are bound to certain mandatory policies and procedures. For example, the franchise agreement requires franchisee’s to comply with all federal, state, local laws, ordinances, and regulations affecting the operation of the restaurant at their own expense.
  5. The operations and training manual also provides for both mandatory and suggested procedures for the franchisees to implement.
  6. The operations and training manual includes an explicitly permissive chapter and procedures for keeping a restaurant lobby open or closed during late-night hours. That chapter of the manual allows the franchisee to establish its own policies, and allows the franchisee to choose the information helpful to it in operating its business. That chapter also notes that the franchisees are independent employers making their own employment policies and decisions and that they may choose to use part, all, or none of the content contained in the manual.
  7. Neither the franchise agreement nor the operations and training manual provide any required late-night service procedures for franchisees. It is up to the franchisees to independently decide whether they will be open for late-night hours, how they will be open, and what policies they will implement if they choose to remain open. In fact, some restaurants elect to stay open late at night and offer services via drive-through’s only. Others choose to keep their lobbies open and hire security guards to ensure safety. The late-night operation decision is left to the franchisees.

III

McDonald’s Policy Is Facially Neutral and Plaintiff Cannot Show Causation

  1. Title III of the ADA talks about causation in terms of whether an entity discriminates against a person on the basis of his disability. The “on the basis,” standard requires a plaintiff to prove that but for his or her disability, he or she would have been able to access the services or benefits desired.
  2. The court in a footnote cites to a previous case where a person also sued McDonald’s because of their refusal to accommodate her during late-night hours. However, at the time of that case McDonald’s did not offer delivery. Since that time, McDonald’s now offers late-night delivery through Uber Eats.
  3. The policy of denying pedestrians service in the drive-through affects all patrons of the restaurant regardless of disability. It is not the disability preventing the plaintiff from purchasing McDonald’s food during the late-night hours, rather it is the pedestrian status that limits his access.
  4. The policy prohibits both sighted and blind pedestrians from walking up and placing an order at drive-through lanes intended for customers in motor vehicles. Any bias in the policy lies in favor of customers in motor vehicles and against all manner of, “perambulating gourmands.”

IV

Thoughts/Takeaways

  1. Very interesting that the court talks about how the plaintiff financed the California trip. That in combination with the term “perambulating gourmands,” indicates that the court has had enough of serial plaintiffs, especially since neither how the California trip was financed nor a person being a “perambulating gourmand,” is germane to the decision.
  2. I am not optimistic about an appeal, which according to the Law 360 article is going to happen, because the Seventh Circuit is not a friendly place for people with disabilities.
  3. If you are a franchisor, this case makes the point that the franchise agreement and the training and operation manuals are critical pieces. On the franchisor side, giving as much leeway to the franchisee as possible is the way to go.
  4. I suppose the reason why the franchisee itself was not sued was because the deep pockets lie with McDonald’s.
  5. If you define operates as an entity that performs effectively the whole function of operating the business, does this mean you can delegate parts of the function of the business to others and not have to worry about ADA compliance? I believe the answer to that question is no as seen in this blog entry.
  6. In my opinion, it goes too far to say that an operator only exists with the franchise agreement specifically reflects the franchisor’s right to direct the franchisee to make an accessibility related change.
  7. Franchisees, at least with McDonald’s, have to comply with federal law at their own expense.
  8. Facially neutral policies are perfectly okay. In this case, the policy discriminated against pedestrians as a whole and not individuals with disabilities. To my mind, this raises a larger question about whether disparate impact cases are allowable. Whether disparate impact cases are allowable under the Rehabilitation Act will be heard by the Supreme Court within the next couple of months.
  9. With respect to plaintiff’s visit to California McDonald’s, plaintiff would have been able to use the drive-through as he was driven to those McDonald’s by a friend who waited for him in the car. One wonders if that didn’t affect the decision in some sort of subtle way.
  10. “But for” causation, has a completely different meaning than what it used to after Bostock v. Clayton County, which we discussed here. For an excellent law review article by Professor D’eandra Shu on the coming sea change in causation, see here.

Good luck to all your teams in the baseball playoffs. Go Atlanta Braves and Chicago White Sox!

I was really busy this week on a pressing client matter. So, the blog entry for the week is a bit late, which occasionally does happen. This week’s blog entry is a response to a push by those very much leading the professional recovery program efforts to expand those efforts to include cognitive screening for all physicians no matter what the situation. The article comes from an article written by Christopher C. Bundy, MD, MPH and Betsy White Williams, PhD, MPH entitled, “Cognitive Screening for Senior Physician: Are We Minding the Gap?” The article, which was published in the Journal of Medical Regulation and can be found here, concludes by saying that, “proactive, mandatory health screening for all physicians would be more effective than age-based screening and mitigating patient safety risk due to performance deficits, while also creating individual and systemic accountability aimed at health protection and workforce sustainability.” The point of this blog entry is to go through various pieces of that article and point out that the article’s suggestions are not in accordance with the provisions of the ADA or §504 the Rehabilitation Act. As usual, the blog entry it divided in the categories and they are the medical model of disability and point counterpoint. Considering the layout of the blog entry, you are probably going to want to read the whole thing.

 

I

The Medical Model of Disability

 

Professional recovery programs working in conjunction with medical licensing boards operate on the medical model of disability. Just what is that model? The best description I have seen of that model is from Prof. Kat MacFarlane’s forthcoming article in the Fordham Law Review, which is entitled, “Disability without Documentation, here.” Her view is that the ADA should operate more like the religious accommodation world does when it comes to accommodating people with sincerely held religious beliefs. When it comes to accommodating sincerely held religious beliefs, you assume that religious belief is sincere and work from that. Whereas with the ADA, to some extent there is an assumption that the disability is not something to take on face value but must be confirmed to some degree. It is a very interesting approach, and I commend the article for anyone to read. A couple of things that I will point out are: 1) the process of confirming disabilities has gotten much better for persons with disabilities with the advent of the amendments to the ADA and their final accompanying implementing regulations; and 2) employers are clamping down on their employees that do not want to get vaccinated. So, I am seeing the religious accommodation process moving away from the assumption that the belief is automatically sincere. I have been reading reports of employers putting in systems to confirm, much in the way a disability is confirmed, a sincerely held religious belief.

All this said, Prof. MacFarlane does a wonderful job of explaining the medical model and how it operates, which is very much the way the professional recovery programs working in conjunction with medical licensing boards go about their business. More specifically, Prof. MacFarlane says in her forthcoming article the following:

“The ADA was intended to reject the medical model, which focuses on diagnoses, treatment, and rehabilitation. The medical model sidelines individuals with disabilities, giving them little say over their own identity. Prior to the ADA, federal 45 29 C.F.R. § 1630.2(o)(3) (emphasis added). 46 Id. 47 Flake, supra note 34, at 75 (quoting 29 C.F.R. app. § 1630.9). 48 Id. at 76–77. 49 Id. 50 Id. 51 29 C.F.R. § Pt. 1630, App. § 1630.9. 52 Id. Electronic copy available at: https://ssrn.com/abstract=3781221 8 disability law and policy “focused on changing, fixing, or training the disabled person to help him overcome his disability and adapt to the ways of ‘normal’ society.”53 Disability was treated as a biological condition. Pursuant to the medical model, a disabled individual is helped through either “rehabilitation efforts to enable the individual to overcome the effects of the disability, or medical efforts to find a cure for the individual.”54 The medical model perceives an individual’s disability as “personal misfortune” with no social cause.55 The medical model of disability grants tremendous power to healthcare professionals. Physicians “validate the existence of disability” and serve as gatekeepers to social assistance.56 Pursuant to the medical model, “[t]he individual’s own subjective experience of impairment or limitation is irrelevant unless it can be professionally validated.” 57 Validation requires a physician, who alone can “diagnose or categorize the cause of an impairment” and also “measure and document its functional impact.”58” (Prof. Kat MacFarlane, Disability Without Documentation, forthcoming article in volume 90 of the Fordham Law Review, at pages 7-8).

I could not have said what the medical model is better myself.

II

Point/Counterpoint

 

  1. On page 42 of the Bundy article, which can be found here, this statement appears: “… cognitive impairment afflicts physicians across the career span, not just older physicians. If the overarching goal is to prevent patient harm through early detection of cognitive impairment in physicians, older physicians may, in fact, be too narrow a target.” 107 Journal of Medical Regulation 42. The problem with this statement is that it is not in accordance with the ADA and §504 of the Rehabilitation Act because preventing harm through early detection is not what the ADA or the Rehabilitation Act are all about. Rather, the question is in the case of employment is whether the person is a qualified individual with a disability. That is, do they meet the requisite requirement for the job by way of training, education, skills, etc. and whether they can do the job’s essential functions with or without reasonable accommodations without constituting a direct threat to self or others. Similarly, when it comes to medical licensing boards the only question is whether the licensee is a qualified individual with a disability per the ADA. Under title II, the question becomes Selectman raise whether they meet the essential eligibility requirements of the program and whether they can do that program with or without reasonable modifications and without constituting a direct threat to others. So, the premise of the paragraph is to weed out people with disabilities or show an early need to fix or cure a person with a disability. That is just not the way the ADA and the Rehabilitation Act roll. Also, keep in mind that the ADA per 42 U.S.C. §12102, protects all of the following categories: 1) a person with an actual disability; 2) a person with a record of a disability; and 3) a person who is regarded as having a disability. So, the emphasis in the ADA and in the Rehabilitation Act is not on whether the disability can be fixed or cured, which is in essence a personal choice, but rather whether the person is qualified per the ADA for the job or the program and does not constitute a direct threat. Finally, direct threat is a much higher standard, as we have discussed numerous times such as here, than the amorphous, “patient harm.”
  2. On page 43 of the article, the authors say, “age-based cognitive screening of physicians has received considerable pushback from the medical community and raises ethical and legal issues regarding age discrimination.” 107 Journal of Medical Regulation 43. This is absolutely true. The EEOC has currently sued Yale University hospitals for such a program. That case is ongoing. The EEOC also is in the process of settling with Yale University hospitals a lawsuit involving how they implement their wellness programs. What is missing from this paragraph is any recognition that such cognitive screening creates serious issues of noncompliance with the ADA and §504 of the Rehabilitation Act.
  3. On page 44 of the article, the authors say, “if our overarching goal is to prevent patient harm through early detection of cognitive impairment in physicians, older physicians may be too narrow a target.” 107 Journal of Medical Regulation 44. Patient harm is not the standard under the ADA. As mentioned above, the question is whether the individual is a direct threat to self or others if the individual’s employer is doing the evaluation, or whether the individual is a direct threat to others if it is the medical licensing board or the professional recovery program doing the evaluation. Such an overarching goal creates problems with respect to giving people a record of a disability, which they may or may not actually have, and certainly creates problems by regarding people as having a disability.
  4. Also on page 44, the authors say, “…merely focusing on concerns related to aging may be a convenient and more comfortable proxy for the larger problem of proactive identification of potentially impairing health conditions at any age.” Id. (Emphasis mine). “Potentially impairing health conditions,” is a term you see all over the Federation of State Medical Boards Policy on Physician Impairment. With respect to ADA compliance, using such a term as your touchstone, will keep ADA defense lawyers very busy and allow plaintiffs lawyers to gravitate to such cases. The term “potentially impairing health conditions,” is simply not consistent with the ADA or the Rehabilitation Act. The question is under the ADA/Rehabilitation Act whether you have an actual disability, a record of a disability, or are regarded as having a disability. Using “potentially impairing,” means that you are automatically regarding that individual as having a disability and allowing him or her to be protected by the ADA. Remember, for a person to be protected under the ADA all they have to show is one of the three definitions of disability.
  5. Again on page 44, the authors state, “we suggest that the value of the physician as healthiest self be woven into the physician identity beginning in medical school and reinforced throughout the career span.” Id. No one can argue with the idea that everybody should be as healthy as they possibly can. However, the language clearly suggests that people with disabilities are simply not healthy. Whether you are healthy or have a disability are two completely different concepts.
  6. On page 45, the authors state, “other safety sensitive professions-such as airline pilot, air traffic controllers, police officers, and firefighters-recognize the link between health and performance and undergoing routine compulsory health screening. The absence of such screening for physicians is a conspicuous gap in the professional self-regulation of physicians. If we are truly committed to protecting our workforce and promoting patient safety, then we should mind this gap and consider the merits of mandatory routine health screening for all physicians. This is particularly important, and physicians may have difficulty acknowledging that they are unwell and tend to underutilize health services.” 107 Journal of Medical Regulation 45. The problem with this particular statement with respect to ADA/Rehabilitation Act compliance are numerous. First, under title I of the ADA medical examinations and disability related inquiries of current employees can only be done when there is reason to believe that such a medical exam/inquiry is necessary because it is job-related and consistent with business necessity. We have discussed job-related and business necessity many times before in the blog, such as here and here. Second, the ADA in both title I and title II prohibits policies and procedures that screen out people with disabilities. Clearly, compulsory health screening is such a policy. Finally, if my experience in my practice is any indication, such compulsory screening would not take into account whether the person is qualified per the ADA or whether the person constitutes a direct threat to self or others or to just others, depending upon what title of the ADA is at issue.
  7. Also, on page 45 of the article, this appears, “we recognize that the prospect of mandatory health screening over the career span is likely to be met with resistance. However, we have argued that health conditions that could negatively (emphasis mine), impact physician performance and patient safety are not limited to older physician; thus, the rationale for screening is valid for all physicians. We have also suggested that age is but one factor, probably less important than health, in the complex interplay between cognition and practice performance.” Id. This paragraph also has several problems with respect to ADA/Rehabilitation Act compliance. First, “that could negatively,” is really the same term as, “potentially impairing.” Those terms are not consistent with the ADA/Rehabilitation Act. Second, patient safety is not the issue either under the ADA or the Rehabilitation Act. The question is direct threat. Further, direct threat is a high standard as we have discussed here. Finally, the prospect of mandatory health screening over the career span should be met with resistance because it is not in accordance with the ADA or the Rehabilitation Act.
  8. On page 46 of the article, the authors say this, “physicians who have positive screen that result in the need for further health evaluation could be directed to their State Physician Health Program. State Physician Health Programs (PHP’s) have a highly effective model to address and rehabilitate impairing health conditions in physicians and other health professionals.” 107 Journal of Medical Regulation 46. While one may or may not quibble with the substance of the statement, the statement by itself is neutral enough on its face. However, title I of the ADA final implementing regulations and the technical assistance memorandums for title II and title III of the ADA make clear that any such evaluations need to be narrowly focused, which, if my experience in my practice is any indication, does not happen with regularity.
  9. Also, on page 46 of the article, the authors say, “should health screening and follow-up reveal an impairment, substantial risk of impairment, or risk of dyscompetence/incompetence, the PHP and physician would work together along the traditional PHP pathway with the goal of rehabilitating the physician’s safe continuation of, or return to, practice.” Id. There are numerous problems here with respect to ADA/Rehabilitation Act compliance. First, absolutely nothing wrong with having an impairment. All kinds of people have impairment. The question is under title I and II of the ADA is whether they are a qualified person per the ADA with a disability. Second, as mentioned previously, the potential for impairment plays no role in ADA analysis. The question is whether the individual is a direct threat to self or others should an employer be doing the evaluation or whether the individual is a direct threat to others should the medical licensing board or the PHP be doing the evaluation. Finally, the language makes it very very clear that what is going on here is the medical model of disability which the ADA as amended largely, but certainly not entirely, does away with.
  10. As I have mentioned, public safety is not the standard rather direct threat is. However, public safety may come into play with respect to the burden of proof for establishing direct threat, as we discussed here. That said, direct threat and who has the burden of proof for establishing direct threat are not at all the same thing.
  11. The term qualified does not appear in title III of the ADA at all, but the paradigm of the ADA is such that the term must be implied. Otherwise, how can a title III entity convincingly show that a reasonable modification is a fundamental alteration to how their business operates.
  12. The medical model described in this article also has serious implications for the healthcare sector because many ADA qualified healthcare providers will be and are being pulled from the profession so that their disability can be fixed or cured even though they are perfectly capable of performing the essential functions of their job with or without reasonable accommodations and do not constitute a direct threat to others. They also meet all the essential eligibility requirements for their profession as well.
  13. Fortunately, my understanding is that the legal profession has not yet gone the route of the medical profession with respect to the “potentially impaired,” attorney. For the reasons laid out in this article, I sincerely hope that the legal profession does not go down this path. Since lawyers worry about complying with the law, I would hope that we would know better. Finally, I would also refer readers to the blog entry I previously wrote on the issues contained in this blog entry as well.

Go Braves and go White Sox. Good luck to all of your teams in the baseball playoffs.

Emotional support animal fraud is a big deal for not only businesses but for people with disabilities with service animals. Businesses and landlords have to manage it. People with disabilities with service animals wind up in a situation where their service animals might be in jeopardy. Also, the emotional support animal abuse creates a presumption that the person with the disability does not have a service animal. Accordingly, various states are passing laws to deal with this issue. We previously discussed what Illinois did here. Just recently, on September 8, 2021, California enacted a law dealing with emotional support animals, and I thought it would be worthwhile discussing. Before going further, I do have to disclose that I am not a licensed attorney in California even though my first law degree was from the University of San Diego. I knew early that I did not want to practice in California, so I never took the California bar. So, what is offered here is just a look at the plain meaning of the statute. If you have any questions, you do want to consult an attorney licensed in California. As usual the blog entry is divided into the categories, which are the provisions of Assembly Bill #468 and thoughts/takeaways. The blog entry is such that you will want to read the whole thing.

 

I

What Are the Provisions of Assembly Bill #468

  1. A business or a person selling or providing a dog for use as an emotional support dog “shall,” provide a written notice to the buyer or recipient of the dog stating all of the following: 1) the dog does not have the special training required to qualify as a guide, signal, or service dog; 2) the dog is not entitled to the rights and privileges accorded by law to a guide, signal, or service dog; and 3) knowingly and fraudulently representing oneself to be the owner or trainer of any canine license as, to be qualified as, or identified as, a guide, signal, or service dog is a misdemeanor.
  2. A person or business selling or providing a certificate, identification, tag, vest, leash, or harness for an emotional support animal “shall,” provide a written notice to the buyer or recipient stating all of the following: 1) the item does not entitle an emotional support animal to the rights and privileges accorded by law to a guide, signal, or service dog; 2) knowingly and fraudulently representing oneself to be the owner or trainer of any canine license as, to be qualified as, or identified as, a guide, signal, or service dog is a misdemeanor; 3) the written notice “shall,” be made in at least 12 point bold type, and shall be provided on the receipt for the emotional support dog or the product described or on a separate piece of paper.
  3. A healthcare practitioner “shall,” not provide documentation relating to an individual’s need for an emotional support dog unless the healthcare practitioner complies with all of the following: 1) possesses a valid, active license and includes the effective date, license number, jurisdiction, and of professional license in the documentation; 2) is licensed to provide professional services within the scope of the license in the jurisdiction in which the documentation is provided; 3) establishes a client-provider a relationship with the individual for at least 30 days prior to the providing the documentation requested regarding the individual’s need for an emotional support dog; 4) completes a clinical evaluation of the individual regarding the need for an emotional support dog; and 5) provides a verbal or written notice to the individual that knowingly and fraudulently representing oneself to be the owner or trainer of any canine license as, to be qualified as, or identified as, a guide, signal, or service dog is a misdemeanor.
  4. A healthcare practitioner may be subject to discipline from the healthcare practitioner’s licensing board for a violation of the statute.
  5. Violation of the statute are subject to a civil penalty of $500 for the first violation, $1000 for the second violation, and $2500 for the third and any subsequent violation.
  6. The Atty. Gen. may bring an action for civil penalties as well as a district attorney, County Counsel, and city attorneys.
  7. The statute does not preempt any rights afforded under the California Fair Employment and Housing Act, the Unruh Civil Rights Act, or the Disabled Persons Act.
  8. Emotional support animal means an animal that provides emotional, cognitive, or other similar support to an individual with a disability, and that does not need to be trained or certified.
  9. Emotional support dog means a dog providing emotional, cognitive, or other similar support to an individual with a disability, and that does not need to be trained or certified.
  10. Guide, signal, or service dog references back to specific California statutory provisions in the Penal Code and in the Civil Code.

II

Thoughts/Takeaways

 

  1. I have to confess that much of the statute doesn’t make a lot of sense to me.
  2. “Shall,” can have up to seven different meanings, which is why the word appears in quotes in this blog entry. Commonly, it has up to four different meanings. For example, if your child says “I shall clean up my room,” what does that mean in terms of timeframe? As we all know, it may mean immediately, soon, not so soon, or never. So, we are left with the question of whether “shall,” is mandatory or whether it just means maybe maybe not.
  3. California has a misdemeanor statute for people who knowingly and fraudulently represent their animal as a service animal, which is not the case in all other states in the country.
  4. A dog by existing is an emotional support animal. Therefore, a real question arises whether everyone selling a dog in California must provide the notice described in the statute.
  5. I realize that California has specific meaning for guide, signal, or service dog. Keep in mind, that the ADA doesn’t break it down that way. The animal is a service animal or not. Under the ADA, as we discussed here, a service animal must be a dog, though miniature horses get similar treatment after a balancing test is applied. Also, the Fair Housing Act circular has its own set of rules, discussed here. Whether that circular is at all persuasive to the courts is another question per this blog entry because the circular is not based upon any regulation or even any statutory provision.
  6. With respect to the healthcare provider, the statute says that the healthcare provider must be licensed to provide professional services within the scope of the license and in the jurisdiction in which the documentation is provided. I don’t have a problem with understanding what is the scope of the license. However, what does “in the jurisdiction in which the documentation is provided,” mean? Are we talking at the state level or are we talking at some level below that? It just isn’t clear.
  7. It can be somewhat problematic that a client-provider relationship must be in place 30 days before submitting any documentation of the need for an emotional support dog. What if a person who needs an emotional support animal has just moved to the state? They can’t use an out-of-state provider per the statute. So, are they supposed to go without their emotional support animal for 30 days until they can find a healthcare practitioner to meet with them and recognize that they need an emotional support animal?
  8. A healthcare practitioner that does not follow the statutory provisions of this law is subject to discipline by their licensing board.
  9. Civil penalties are in order for violations of the statute.
  10. Emotional support animals and emotional support dogs are not certified. Why the language of certification appears in the definition of emotional support animal and emotional support dog in this statute is hard to figure out.
  11. The written notice must be in 12 point bold type, but nothing is said about making the notice accessible to a person with a visual impairment. So, don’t forget about the ADA.
  12. The statute has all kinds of problems. I prefer the Illinois statute on the subject, which we discussed here.
  13. I am not a California licensed attorney. Be sure to get such an individual at this law has all kinds of questions arising from it.