Today’s blog entry discusses the CDC Guidance For Institutions Of Higher Education Updated June 4, 2021. In short, if you are an institution of higher education you have to strongly consider mandating proof of vaccination for students, faculty, staff, and visitors unless you are in a State that has an executive order or law that prohibits you from doing so. Many colleges and more every day are doing precisely this. Further, Rhodes College in Memphis Tennessee has added a surcharge of $1500 for any student that is not vaccinated to cover Covid-19 tests etc.

 

Let’s look at the guidance to see why institutions of higher education (IHE), should seriously consider mandating proof of vaccination for its students. Also, there is now a federal court decision saying that employers have a perfect right to mandate vaccines for their employees. I previously discussed here why employers have a perfect right to insist that their employees be vaccinated absent disability or sincerely religious held belief. As usual, the blog entry is divided into categories and they are: fully vaccinated campuses; campuses that are not fully vaccinated; general consideration for all IHE’s; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Highlights of the CDC Guidance: Fully Vaccinated Campuses

 

  1. IHE can help increase vaccine uptake among students, faculty, and staff by providing information about and offering Covid-19 vaccination, promoting vaccine trust and confidence, and establishing supportive policies and practices making vaccination as is easy and convenient as possible. I recently read a big article in the Wall Street Journal about the University of Florida’s efforts in this regards with respect to the communities surrounding it.
  2. IHE can consider verifying vaccination status of their student, faculty, and staff.
  3. IHE with fully vaccinated students, faculty, and staff can refer to CDC’s previous guidance for fully vaccinated people, which basically allows people to go mask free without social distancing except in crowded indoor areas.
  4. IHE where all students, faculty, and staff are fully (emphasis in the guidance), vaccinated prior to the start of semester, can return to full capacity in person learning without requiring masking or physical distancing for people who are fully vaccinated.
  5. When holding gatherings and events that include individuals who are not fully vaccinated such as campus visitors from outside of the IHE, the IHE needs to utilize appropriate prevention strategies to protect people who are not fully vaccinated.
  6. Students, faculty, and staff who are fully vaccinated do not need to wear masks, except where required by federal, state, local, tribal, or territorial laws, rules and regulation, including local business and workplace guidances. While fully vaccinated person do not generally need to wear masks, CDC recommend continued masking and physical distancing for people with weakened immune systems. IHE need to be supportive of students, faculty, or staff who choose to continue to wear a mask for any reason.
  7. Physical distancing is not necessary for fully vaccinated students, faculty, and staff on campus for IHE where everyone is fully vaccinated.
  8. People who are fully vaccinated in shared housing per the prior CDC guidance are pretty much free to go about their business mask free.
  9. People who are fully vaccinated do not need to undergo routine Covid-19 screening testing. If a fully vaccinated person is exposed to someone with Covid-19, they also do not need to be tested unless they are experiencing Covid-19 symptoms.
  10. Students, faculty, and staff with signs or symptoms of infectious illness should be encouraged to stay home when sick and/or seek medical care.
  11. People who are fully vaccinated with no Covid-19 symptoms do not need to quarantine or be restricted from work following an exposure to someone with suspected or confirmed Covid-19, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidances.
  12. Students, faculty, and staff who are fully vaccinated can refrain from testing following a known exposure if they are asymptomatic. People who are fully vaccinated should continue to get tested if experiencing Covid-19 symptoms. Also, students, faculty, and staff who are fully vaccinated can refrain from routine screening testing.
  13. Fully vaccinated people with no Covid-19 like symptoms and no known exposure should be exempted from routine screening testing programs.

 

II

Highlights of the CDC Guidance: Campuses That Are Not Fully Vaccinated

 

  1. IHE administrators should create programs and policy facilitating the adoption and implementation of prevention strategies necessary to slow the spread of Covid-19 at the IHE and in the local community. Prevention strategies include: offering and promoting vaccination; consistent and correct use of mask; physical distancing; handwashing and respiratory etiquette; contact tracing in combination with isolation and quarantine; testing for Covid-19; maintaining healthy environments (increased ventilation and cleaning); and maintaining healthy operations (communication, supportive policies and health equity).
  2. Consistent and correct masks use by people who are not fully vaccinated is especially important indoors and in crowded settings when physical distancing cannot be maintained.
  3. Mask use is recommended for people who are not fully vaccinated, including children.
  4. In general, people do not need to wear masks when outdoors. CDC does recommend that people who are not fully vaccinated wear a mask in crowded outdoor setting or during activities involving sustained close contact with other people who are not fully vaccinated.
  5. Exception for masks wearing need to be made for people with disabilities who cannot wear a mask due to their disability.
  6. Exceptions need to be made for person wearing a mask that would create a risk to workplace health, safety, or job duty at determined by the relevant workplace safety guidelines are federal regulations.
  7. People who are not fully vaccinated should continue to practice physical distancing, which means keeping space of at least 6 feet between people not from your household in both indoor and outdoor spaces.
  8. Physical distancing promotion strategies include: hosting virtual only activities, events, and gatherings of all sizes; holding activities, events, and gatherings outdoors in areas that can accommodate physical distancing when possible; facing out or blocking off roads, chairs, and/or table seating position in communal use shared spaces (such as classroom, dining halls, locker room, laboratory facility, library, student centers, and lecture room); and limiting occupancy and requiring mask use by people who are not fully vaccinated, including drivers, and on campus buses/shuttles or other vehicles. Alternate or block off roads and increased ventilation (i.e. opening windows if possible).
  9. IHE can designate fully vaccinated dorms, floors or complexes and those areas get to follow the CDC guidance for fully vaccinated people.
  10. IHE should consider housing students who are not fully vaccinated in single rooms instead of shared rooms when feasible.
  11. IHE should consider establishing cohorts of people who are not fully vaccinated, such as groups of dorm rooms or dorm floors that do not mix with other cohorts to minimize transmission across cohorts and facilitate contact tracing. All units sharing a bathroom should be included in a cohort. Roommate/suite mates can be considered a household and do not need to use mask or physically distance within the household unit (dorm room or suite), unless someone in the household is ill.
  12. IHE should close or limit the capacity of community use shared spaces such as dining areas, game room, exercise room, and lounges, if possible to decrease mixing among non-cohort people who are not fully vaccinated.
  13. IHE should consider limiting use of communal use shared space to people who are fully vaccinated.
  14. IHE should consider limiting building access by nonresidents, including outside guests and nonessential visitors to dorms in residence halls.
  15. IHE should conduct diagnostic or screening testing of student, faculty, and staff for purposes of surveillance or in the context of an outbreak but those recommendations vary depending upon whether a person is fully vaccinated or not.
  16. IHE may consider maintaining documentation of individual vaccination status to inform testing, contact tracing effort, and quarantine/isolation practices. Any such vaccination information should be obtained with appropriate safeguards to protect personally identifiable information and HIPAA sensitive information from unlawful release.

 

III

General Consideration for All IHE

 

  1. Cleaning high touch surfaces and shared objects once a day is usually enough to sufficiently remove virus that may be on surfaces unless someone with confirmed or suspected Covid-19 had been in your facility.
  2. Improving ventilation is an important Covid-19 prevention strategy.
  3. Staff and volunteers should be required to wash their hands and encourage diners to wash their hands or use an alcohol-based hand sanitizer before and after serving or eating.
  4. In indoor dining areas, people who are not fully vaccinated should wear a mask when not actively eating or drinking and physically distance.
  5. Prioritize outdoor dining and improve ventilation in indoor dining spaces.
  6. Particularly in areas with substantial to high levels of community transmission, reduce seating capacity, use markers and guides to ensure that people remain at least 6 feet apart in a mixed campus when waiting in line for pick up. Also, stagger use of dining areas.
  7. Consider offering to go options and serve individually plated meals. If traditional self-serve plates are offered, check out the CDC recommendations in order to reduce the risk of getting and spreading Covid-19.
  8. People who are not fully vaccinated should continue to avoid large gatherings, but if they choose to attend they should wear well fitting masks covering the mouth and nose and maintain physical distancing while practicing good hand hygiene.
  9. For campuses with both fully vaccinated individuals and individuals who are not fully vaccinated, in person instruction should be prioritized over extracurricular activities, (including sports and school events), in order to minimize risk of transmission in schools and to protect in person learning. Mixed campuses may consider limiting the size of gathering to maintain physical defense as an additional measure.
  10. People who are fully vaccinated no longer need to wear a mask or physically distance in any setting including while participating in sports. People who are fully vaccinated can also refrain from quarantine following a known exposure if asymptomatic.
  11. Players, coaches, trainers, etc. who are not fully vaccinated are at an increased risk for getting and spreading Covid-19. Further, close contact in indoor sports are particularly risky.
  12. IHE should postpone programs in a nation with very high Covid-19 levels, and they should have plans in place to take action in situations where Covid-19 levels become very high during the program.
  13. IHE may consider requiring vaccination as a condition of a study abroad program.

 

IV

Thoughts/Takeaways

 

  1. As a preventive law measure, IHE should mandate proof of vaccine for students wanting to return to campus.
  2. Depending upon location of the IHE, mandating proof of vaccine for return the campus may not be possible. In that case, things will get very complicated in a hurry as a result of this guideline.
  3. OSHA has said that it will follow CDC with respect to what is a safe workplace. So, if the IHE is not mandating proof of vaccination for its students, that does raise an issue of whether the IHE is providing a safe workplace for its faculty and staff if the CDC guidelines for mixed campuses are also not being followed.
  4. The IHE may want to consider mandating proof of vaccination for its workers. That is not at all the same at the IHE performing the vaccination itself. If the IHE performs the vaccination itself, there are GINA and ADA concerns that need to be taken into account as we discussed here. As discussed earlier, an employer is perfectly within its rights to mandate the Covid-19 t vaccine for its workers.
  5. Carrying on sports safely consistent with the CDC guidelines is going to be very difficult on mixed campuses, which will be the case in many regions of the country. Some of those regions are very sports driven but may also have laws or executive orders prohibiting proof of vaccination making the situation even more difficult.
  6. The college experience, particularly the residential one, is much more likely to be somewhat normal if the campus is fully vaccinated than if the campus is not. Considering many schools derive a great deal of revenue from tuition, having a campus that is fully vaccinated will make it much more likely that people will be willing to pay the tuition for their college experience.
  7. The CDC guidance says that it is perfectly okay to segregate out people who are fully vaccinated and people who are not fully vaccinated with respect to where they live. On a scientific level, I get that. On a political level, that is likely to be very controversial.
  8. Look for people who are deaf or hard of hearing and who are fully vaccinated to ask for a person with a mask who they know is fully vaccinated to pull their masks down in order for them to lip read, assuming they are a lip reader. This is a reasonable accommodation request that I am making myself in certain situations. It would get complicated if such an individual made a request in a classroom containing both people who are fully vaccinated and people who are not. The IHE needs to have a plan in place for those situations.
  9. Offhand, I can’t think of how mask wearing would violate federal workplace safety guidelines and regulations. If such a situation does arise, definitely consult knowledgeable legal counsel.
  10. People love their single dorm rooms and this guidance might create an incentive for students to not get vaccinated. Admittedly, the CDC doesn’t say that the college must give people who are not vaccinated single rooms. However, it does say that colleges and universities should consider it.

As everyone knows, Naomi Osaka made news last week in a big way. One of the things that I saw is that labor and employment bloggers were using it as an analogy for how they would deal with something like this under title I of the ADA, such as here184192212213215215. Sports commentators, such as here185193213214216216 for example, were also talking about it in employment law terms. What you do not find is anybody talking about the situation in terms of the applicable rules that actually apply. Since Naomi Osaka is an independent contractor, the question is whether title III of the ADA applies. If it does, what are the obligations of the WTA or the Grand Slams with respect to Naomi Osaka? This blog entry will deal with all of that. As is my typical practice, the blog entry is divided into categories and they are: facts; is Naomi Osaka a person with a disability; otherwise qualified/qualified is not a thing in title III; is the WTA a union; is the WTA a place of public accommodation; what about the interactive process; remedies; what accommodations might be possible; and concluding thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The facts that happened can be found here186194214215217217. Basically, Naomi Osaka has struggled with depression since she won the US open in 2018. If you recall, that particular US open ended when Serena Williams was defaulted on match point. All of a sudden, a very shy and introverted talented 18-year-old tennis professional was at the top of the world having beaten probably the greatest female tennis player of all time in a Grand Slam event. Certainly, a lot for anyone to handle. In her withdrawal statement from the French Open, she said that she has depression, anxiety, and social anxiety. She becomes extremely anxious when she has to talk to the press as it exacerbates her underlying mental health conditions. The Women’s Tennis Association (WTA), as well as well as the Grand Slams have rules mandating that players speak to the press. You can find the WTA rules on that here187195215216218218.

 

II

Is Naomi Osaka a Person with a Disability?

 

Under the ADA, 42 U.S.C. §12102188196216217219219(1), a disability is defined as a person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment. Here, Naomi Osaka has a mental impairment. The question then becomes is whether the mental impairment substantially limits one or more major life activities. 42 U.S.C. §12102189197217218220220(2) defines a major life activity as including but not limited to: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. It also includes the operation of major bodily functions, such as but not limited to: functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

 

Undoubtedly, one of these major life activities is at issue with respect to Naomi Osaka. The question then arises whether she is substantially limited in any of these major life activities. The DOJ rules and regulations implementing title II in title III do not talk about substantial limitation. However, EEOC rules do talk about it. In particular, per 29 C.F.R. §1630.2190198218219221221(j)(ii), the question is whether the person is substantially limited in a major life activity as compared to most people in the general population. The chances are very good that a substantial limitation will be found upon further analysis. So, Naomi Osaka is undoubtedly a person with a disability under the ADA.

 

III

Otherwise Qualified/Qualified Is Not a Thing in Title III

 

The labor and employment law bloggers who have blogged on this are quick to note that meeting the press is arguably an essential function of the job. Under title I of the ADA, you have to be both a person with a disability and otherwise qualified/qualified (the Rehabilitation Act uses the term “otherwise qualified,” while the ADA uses the term, “qualified.” The two terms mean exactly the same thing. To be qualified under title I of the ADA, one of the questions, per 29 C.F.R. §1630.2191199219220222222(m), is whether the person can do the essential functions of the job with or without reasonable accommodations. You also find the term “qualified,” in title II of the ADA and it has a different meaning than it does under title I of the ADA. See 28 C.F.R. §35.104192200220221223223. However, the term otherwise qualified/qualified appears nowhere in title III of the ADA, as we discussed here193201221222224224 for example. So under title III of the ADA, whether Naomi Osaka is otherwise otherwise qualified/qualified is not relevant to the analysis that has to happen. By the way, titles II and III use the term “reasonable modification,” while title I uses the term, “reasonable accommodation.” The two terms are exactly the same in their meanings.

 

IV

Is the WTA a Union?

 

Why does it even matter if the WTA is a union? It matters because unions are subject to title I of the ADA. The WTA is most definitely not a union, rather it is the organization that runs the professional tennis tour. They are not at all the same thing. For more information on the WTA, you can check out this link194202222223225225. So, title I of the ADA simply does not apply to Naomi Osaka’s situation.

 

V

Is the WTA a Place of Public Accommodation?

 

Under 42 U.S.C. §12181195203223224226226(7), the following are places of public accommodations: 1) places of lodging; 2) establishments serving food and drink; 3) places of exhibition and entertainment; 4) places of public gathering, such as a museum or library; 5) sales or rental establishments; 6) service establishments; 7) specified public transportation, such as terminals and depots; 8) public display or collection; 9) places of recreation, such as parks, etc.; 10) places of education; 11) social service center; and 12) places of exercise or recreation (athletic in nature).

 

There are several possibilities looking at the statute for claiming that the WTA is a place of public accommodation. For example, the WTA provides services. The tournaments also take place at athletic venues and even at places of recreation, such as parks. All this said, we don’t have to guess as to whether the WTA would be a place of public accommodation because the Supreme Court has already answered the question in PGA Tour v. Martin196204224225227227. In that case, you will find that the reasons the Supreme Court held that the PGA Tour was a place of public accommodation apply equally as well to the WTA. You don’t have to take my word for it. Let’s take a look at the United States Supreme Court’s reasoning on this issue as discussed on pages 677-681 of their opinion. In particular, the Supreme Court makes the following points about why the PGA golf tour and their qualifying rounds fit comfortably within title III of the ADA: 1) events occur on golf courses, a type of place specifically identified by the ADA as a place of public accommodation; 2) the PGA Tour leases and operates golf courses to conduct its Q school and its tours; 3) as a lessor and operator of golf courses, the PGA Tour cannot discriminate against any individual in the full and equal enjoyment of the goods, services, facility, privileges, advantages, or accommodations of those courses; 4) among the privileges offered by the PGA on the courses are those of competing in the Q school and playing on its tours; the former a privilege for which thousands of individuals from the general public pay and the latter being one for which they vie; 5) Title III’s broad general rule contains no express client or customer limitations; and 6) the PGA Tour offers two privileges to the general public, namely watching the golf competition and competing in it. Clearly, it is a no-brainer that the Supreme Court’s reasoning in PGA Tour v. Martin equally applies to the WTA.

 

VI

What about the Interactive Process?

 

The interactive process is a title I construct, though as a matter of preventive law you have to be out of your mind not to use the interactive process in title II or title III situations. With respect to title II situations (accessing nonfederal governmental entities), you will find some case law out there requiring an interactive process, particularly with respect to places of education. If you search hard enough, you will find it outside of the educational contexts. You simply will not find case law dealing with whether a title III entity must engage in the interactive process. As a matter of preventive law, you certainly want to do that. However, if you don’t want to do that are you within your legal rights to refuse to do so? Arguably, yes. Will the courts hold that title III requires an interactive process? A court just might because it is hard to figure out how else you can determine a reasonable modification that does not constitute a fundamental alteration or an undue burden absent an interactive process. That said, as a matter of law a place of public accommodation would appear to be within its rights to refuse to engage in the interactive process. It makes no sense for them to take that position but they could. After initial reports on the Osaka matter, both the WTA and the Grand Slams, which are a separate entity, said they would work with her. That in and of itself is not surprising because she is a huge moneymaker on the tour, a worldwide presence, and the number two player in the world. If a place of public accommodation refuses to engage in the interactive process, it is certainly worth challenging because it would make for some great new law. It is also quite likely that a court would find that the interactive process is required because otherwise the ADA statutory scheme makes absolutely no sense.

 

VII

Remedies

 

The only remedies available to her under title III of the ADA would be injunctive relief and attorney fees. So, an order mandating the WTA engage in the interactive process and make reasonable modification to its policies, practices, procedures plus attorney fees. If the WTA takes federal funds (perhaps they took coronavirus relief funds), then damages would be a possibility under §504 the Rehabilitation Act upon a showing of deliberate indifference as we discussed here197205225226228228.

 

VIII

What Accommodations Might Be Possible?

 

I could think of one offhand. For example, perhaps her social anxiety is not so bad if she does the interview over a laptop through Zoom. There must be many other possible reasonable modifications that can be made without fundamentally altering the nature of her obligations to do the press conferences as a member of the WTA tour. The Job Accommodation Network198206226227229229 even though a job is not involved, could probably be of great help as well.

 

IX

Concluding thoughts/takeaways

 

  1. Naomi Osaka is undoubtedly a person with a disability.
  2. The WTA is undoubtedly per PGA Tour v. Martin, a place of public accommodation under the ADA.
  3. The WTA is under no obligation to engage in an interactive process with Naomi Osaka, though they would have to be out of their minds not to do so.
  4. I absolutely expect many more athletes at all levels to begin coming out saying that their mental health conditions need accommodating with reasonable modifications, particularly after a whole year of the pandemic that upended a lot of the athletes lives at all levels. Naomi Osaka has certainly started something.
  5. Keep in mind, the rules are not the same for employees and for independent contractors. So if this was the Kevin Love situation (he has been quite upfront about the anxiety that he deals with), he would be governed by title I because he is an employee of an NBA team.
  6. I have seen too many attorneys make mistakes because they don’t realize that each of the titles of the ADA have their own statutory and regulatory provisions. If you run into issues, be sure to seek out competent ADA counsel familiar with the particular title(s) involved.
  7. I am currently involved in several cases where more than one of the ADA titles are happening simultaneously. In fact, sometimes you can see titles I, II, and III all happening at the same time. It isn’t unusual in my practice for me to see title II and III happening at the same time, particularly but not exclusively so in the area of healthcare licensing boards and their interactions with professional recovery programs.
  8. Training, training, training (which also happens to be a large part of my practice:-).

Hope everyone had a great Memorial Day holiday weekend. Today’s blog entry talks about the latest update from the EEOC with respect to Covid-19. All the labor and employment law bloggers are blogging on it, so I decided to blog on it as well and offer my own perspective. As with previous blog entries of mine on the subject, what I have done is cut-and-paste the new sections of the guidance and then underneath the section put in my own comments. So, the blog entry is not divided into the usual traditional categories. The only new piece to the EEOC guidance comes in §K, which is at the very end of the EEOC document, pages 28-40.

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 for COVID-19?    (5/28/21)

The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below99185186200201.  These principles apply if an employee gets the vaccine in the community or from the employer.

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 for 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 vaccine 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 greater barriers to receiving a COVID-19 vaccination than others, 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: As I mentioned previously in this blog entry186187201202, federal EEO laws do allow for employers to mandate Covid-19 vaccinations. An employer does have to make reasonable accommodations for employees with disabilities or for those with sincerely held religious beliefs. Keep in mind that reasonable accommodations for persons with disabilities and reasonable accommodations for people having sincere religious beliefs are not at all the same thing, at least for now. Employers do want to be careful about policies that have a disproportionate effect on protected groups.

K.2.   What are some examples of reasonable accommodations or modifications that employers may have to provide to employees who do not get vaccinated due to disability; religious beliefs, practices, or observance; or pregnancy?  (5/28/21)

An employee who does not get vaccinated due to a disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business.  For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment.

Employees who are not vaccinated because of pregnancy may be entitled (under Title VII) to adjustments to keep working, if the employer makes modifications or exceptions for other employees.  These modifications may be the same as the accommodations made for an employee based on disability or religion.

 

Thoughts/takeaways: There is legislation currently pending in Congress, the Pregnant Workers Fairness Act, which would take the ADA paradigm and place it on pregnancy. Until that legislation becomes law, as a matter of preventive law it is a good idea to put that ADA paradigm onto pregnancy anyway. As mentioned immediately above, keep in mind that reasonable accommodations has a completely different meaning for dealing with a person with a sincere religious belief v. a person with a disability.

K.3.  How can employers encourage employees and their family members to be vaccinated without violating the EEO laws, especially the ADA and GINA? (5/28/21)

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.  Also, under certain circumstances employers may offer incentives to employees who receive COVID-19 vaccines, as discussed in K.16 – K. 21100187188202203.  As of May 2021, the federal government is providing vaccines at no cost to everyone ages 12 and older.

There are many resources available to employees seeking more information about how to get vaccinated:

  • The federal government’s online vaccines.gov101188189203204 site can identify vaccination sites anywhere in the country (or https://www.vacunas.gov102189190204205 for Spanish).  Individuals also can text their zip code to “GETVAX” (438829) – or “VACUNA” (822862) for Spanish – to find three vaccination locations near them.
  • CDC’s website offers a link to a listing of local health departments103190191205206, which can provide more information about local vaccination efforts.
  • In addition, the CDC offers background information for employers about workplace vaccination programs104191192206207. The CDC provides a complete communication “tool kit” for employers to use with their workforce to educate people about getting the COVID-19 vaccine.  (Although originally written for essential workers, it is useful for all workers.)   See CDC’s Essential Workers COVID-19 Toolkit105192193207208.  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.
  • Some employees may not have reliable access to the internet to identify nearby vaccination locations or may speak no or limited English and find it difficult to make an appointment for a vaccine over the phone. The 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 available in their community serving vaccination sites and offer time-off for vaccination, particularly if transportation is not readily available outside regular work hours.

Thoughts/takeaways: Nothing to add here.

General

K.4.  Is information about an employee’s COVID-19 vaccination confidential medical information under the ADA?  (5/28/21)

Yes.  The ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination.  This ADA confidentiality requirement applies regardless of where the employee gets the vaccination.  Although the EEO laws themselves do not prevent employers from requiring employees to bring in 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: This particular question raises the important point that Covid-19 information must be kept confidential under the ADA. That means not only keeping it confidential but also storing it separately from the employee’s personnel files.

Mandatory Employer Vaccination Programs

K.5.  Under the ADA, may an employer require a COVID-19 vaccination for all employees entering the workplace, even though it knows that some employees may not get a vaccine because of a disability? (12/16/20, updated 5/28/21)

Yes, provided certain requirements are met.  Under the ADA, an employer may require all employees to meet a qualification standard that is job-related and consistent with business necessity, such as a safety-related standard requiring COVID-19 vaccination.  However, if a  particular employee cannot meet such a safety-related qualification standard because of a disability, the employer may not require compliance for that employee unless it can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others in the workplace.  A “direct threat” is a “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation.  29 C.F.R. 1630.2(r)106193194208209.  This determination can be broken down into two steps: determining if there is a direct threat and, if there is, assessing whether a reasonable accommodation would reduce or eliminate the threat.

To determine if an employee who is not vaccinated due to a disability poses a “direct threat” in the workplace, an employer first must make an individualized assessment of the employee’s present ability to safely perform the essential functions of the job.  The factors that make up this assessment are: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.  The determination that a particular employee poses a direct threat should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19.  Such medical knowledge may include, for example, the level of community spread at the time of the assessment.   Statements from the CDC provide an important source of current medical knowledge about COVID-19, and the employee’s health care provider, with the employee’s consent, also may provide useful information about the employee.   Additionally, the assessment of direct threat should take account of the type of work environment, such as: whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing.

If the assessment demonstrates that an employee with a disability who is not vaccinated would pose a direct threat to self or others, the employer must consider whether providing a reasonable accommodation, absent undue hardship, would reduce or eliminate that threat.  Potential reasonable accommodations could include requiring the employee to wear a mask, work a staggered shift, making changes in the work environment (such as improving ventilation systems or limiting contact with other employees and non-employees ), permitting telework if feasible, or reassigning the employee to a vacant position in a different workspace.

As a best practice, an employer introducing a COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination should notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis.  (See also K.12107194195209210 recommending the same best practice for religious accommodations.)

 

Thoughts/takeaways: 1) An employer can absolutely require Covid-19 vaccination for its current employees providing that standard is job-related and consistent with business necessity, such as by way of example a safety-related standard requiring Covid-19 vaccination. Just what is job-related and consistent with business necessity is something that we have discussed numerous times before in our blog, such as here195196210211; 2) The employer will have to make “reasonable accommodation,” for those with disabilities or for those with sincerely held religious beliefs; 3) if a person with a disability cannot be vaccinated, then the employer has to decide whether that person is a direct threat and whether any reasonable accommodation can be made short of that direct threat point. Direct threat is something that we have discussed before quite a few times, such as here196197211212; 4) when figuring out whether a direct threat exists, CDC guidances are useful as well as information from the employee’s health care provider. With respect to CDC guidances, they have been all over the place, so you would want to have those analyzed closely; 5) Figuring out direct threat also means looking at the employee’s individual work environment, such as: whether the employee works alone or with others or works inside or outside; available ventilation; frequency and duration of direct interaction the employee’s typically has with other employees and nonemployees; number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing; and 6) remember that direct threat is a term of art and always requires an individualized analysis.

 

K.6. Under the ADA, if an employer requires COVID-19 vaccinations for employees physically entering the workplace, how should an employee who does not get a COVID-19 vaccination because of a disability inform the employer, and what should the employer do?   (12/16/20, updated 5/28/21)

An employee with a disability who does not get vaccinated for COVID-19 because of a disability must let the employer know that he or she needs an exemption from the requirement or a change at work, known as a reasonable accommodation.  To request an accommodation, an individual does not need to mention the ADA or use the phrase “reasonable accommodation.”

Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability108197198212213 and know to whom to refer the request for full consideration. As a best practice, before instituting a mandatory vaccination policy, employers should provide managers, supervisors, and those responsible for implementing the policy with clear information about how to handle accommodation requests related to the policy.

Employers and employees typically engage in a flexible, interactive process to identify workplace accommodation options that do not impose an undue hardship (significant difficulty or expense) on the employer.  This process may include determining whether it is necessary to obtain supporting medical documentation about the employee’s disability.

In discussing accommodation requests, employers and employees may find it helpful to consult the 109Job Accommodation Network (JAN) website198199213214 as a resource for different types of accommodations.  JAN’s materials about COVID-19 are available at 110https://askjan.org/topics/COVID-19.cfm199200214215.  Employers also may consult applicable Occupational Safety and Health Administration (OSHA) COVID-specific resources111200201215216.  Even if there is no reasonable accommodation that will allow the unvaccinated employee to be physically present to perform his or her current job without posing a direct threat, the employer must consider if telework is an option for that particular job as an accommodation and, as a last resort, whether reassignment to another position is possible.

The ADA requires that employers offer an available accommodation if one exists that does not pose an undue hardship, meaning a significant difficulty or expense. See 29 C.F.R. 1630.2(p).  Employers are advised to consider all the options before denying an accommodation request.  The proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, who may be ineligible for a vaccination or whose vaccination status may be unknown, can impact the ADA undue hardship consideration.  Employers may rely on CDC recommendations112201202216217 when deciding whether an effective accommodation is available that would not pose an undue hardship.

Under the ADA, it is unlawful for an employer to disclose that an employee is receiving a reasonable accommodation113202203217218 or to retaliate against an employee for requesting an accommodation114203204218219.

 

Thoughts/takeaways: 1) it is up to the employee to request an exemption from a Covid-19 vaccination requirement; 2) requesting that exemption does not need magic words; 3) managers and supervisors need to know how to respond to particular employee requests for exemption from any Covid-19 vaccination requirements; 4) never forget about the interactive process and make sure you get the interactive process right, as we discussed here204205219220; 5) the ADA makes it unlawful to disclose that an employee is receiving a reasonable accommodation or to retaliate against an employee for requesting an accommodation; 6) significant difficulty or expense is a much higher standard- see 29 C.F.R. 1630.2(p)205206220221-then a plain reading of the term would suggest.

K.7.  If an employer requires employees to get a COVID-19 vaccination from the employer or its agent, do the ADA’s restrictions on an employer making disability-related inquiries or medical examinations of its employees apply to any part of the vaccination process? (12/16/20, updated 5/28/21)

Yes. The ADA’s restrictions apply to the screening questions that must be asked immediately prior to administering the vaccine if the vaccine is administered by the employer or its agent.  An employer’s agent115206207221222 is an individual or entity having the authority to act on behalf of, or at the direction of, the employer.

The ADA generally restricts when employers may require medical examinations (procedures or tests that seek information about an individual’s physical or mental impairments or health) or make disability-related inquiries (questions that are likely to elicit information about an individual’s disability).  The act of administering the vaccine is not a “medical examination” under the ADA because it does not seek information about the employee’s physical or mental health.

However, because the pre-vaccination screening questions are likely to elicit information about a disability, the ADA requires that they must be “job related and consistent with business necessity” when an employer or its agent administers the COVID-19 vaccine.  To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, cannot be vaccinated, will pose a direct threat to the employee’s own health or safety or to the health and safety of others in the workplace.  (See general discussion in Question K.5116207208222223.)  Therefore, when an employer requires that employees be vaccinated by the employer or its agent, the employer should be aware that an employee may challenge the mandatory pre-vaccination inquiries, and an employer would have to justify them under the ADA.

The ADA also requires employers to keep any employee medical information obtained in the course of an employer vaccination program confidential.

 

Thoughts/takeaways: 1) the ADA scheme dealing with medical exams also applies to disability -related inquiries. See this blog entry208209223224 for example; 2) pre-vaccination screening questions are likely to elicit information about a disability and therefore, are a disability related inquiry; 3) any disability related inquiries of current employees must be job-related and consistent with business necessity; 4) an employer must have a reasonable belief based upon objective evidence that an employee not answering the questions cannot be vaccinated, will pose a direct threat to the employee’s own health or safety or to the health and safety of others in the workplace; 5) employee medical information obtained in the course of an employer vaccination program must be kept confidential; 6) an employer may want to make sure that neither itself nor its agents do the vaccines for its employees if it wants to avoid possible exposure to disability related inquiries. Of course, bigger companies may not see this as much of an issue. 7) just what is a disability related inquiry can be a bit of a moving target. If you have persons with disabilities involved in that analysis, that certainly will help.

Voluntary Employer Vaccination Programs

K.8.  Under the ADA, are there circumstances in which an employer or its agent may ask disability-related screening questions before administering a COVID-19 vaccine without needing to satisfy the “job-related and consistent with business necessity” standard?  (12/16/20, updated 5/28/21)

Yes.  If the employer offers to vaccinate its employees on a voluntary basis, meaning that employees can choose whether or not to get the COVID-19 vaccine from the employer or its agent, the employer does not have to show that the pre-vaccination screening questions are job-related and consistent with business necessity.  However, the employee’s decision to answer the questions must be voluntary.  (See also Questions K.16 – 17117209210224225.)  The ADA prohibits taking an adverse action against an employee, including harassing the employee, for refusing to participate in a voluntary employer-administered vaccination program.  An employer also must keep any medical information it obtains from any voluntary vaccination program confidential.

 

Thoughts/takeaways: 1) see thoughts/takeaways for K.7; 2) an employee’s decision to answer pre-vaccine questions has to be voluntary; 3) the ADA prohibits taking adverse action against an employee for refusing to participate in the voluntary employer-administered vaccination program; 4) medical information obtained from a voluntary vaccination program must be kept confidential.

K.9.  Under the ADA, is it a “disability-related inquiry” for an employer to inquire about or request documentation or other confirmation that an employee obtained the COVID-19 vaccine from a third party in the community, such as a pharmacy, personal health care provider, or public clinic?   (12/16/20, updated 5/28/21)

No.  When an employer asks employees whether they obtained a COVID-19 vaccine from a third party in the community, such as a pharmacy, personal health care provider, or public clinic, the employer is not asking 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 in the community besides having a disability.  Therefore, requesting documentation or other confirmation of vaccination by a third party in the community is not a disability-related inquiry under the ADA, and the ADA’s rules about 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.

 

Thoughts/takeaways: Nothing to add here.

K.10.  May an employer offer voluntary vaccinations only to certain groups of employees?  (5/28/21)

If an employer or its agent offers voluntary vaccinations to employees, the employer must comply with federal employment nondiscrimination laws.  For example, not offering voluntary vaccinations to certain employees based on national origin or another protected basis under the EEO laws would not be permissible.

 

Thoughts/takeaways: if you are going to offer voluntary vaccinations only to certain groups of employees, make sure you have documentation in place to why you are doing that. Also, make sure that any such decisions do not run into problems with persons with protected characteristics.

K.11. What should an employer do if an employee who is fully vaccinated for COVID-19 requests accommodation for an underlying disability because of a continuing concern that he or she faces a heightened risk of severe illness from a COVID-19 infection, despite being vaccinated? (5/28/21)

Employers who receive a reasonable accommodation request from an employee should process the request in accordance with applicable ADA standards.

When an employee asks for a reasonable accommodation, whether the employee is fully vaccinated or not, the employer should engage in an interactive process to determine if there is a disability-related need for reasonable accommodation.  This process typically includes seeking information from the employee’s health care provider with the employee’s consent explaining why an accommodation is needed.

For example, some individuals who are immunocompromised might still need reasonable accommodations because their conditions may mean that the vaccines may not offer them the same measure of protection as other vaccinated individuals.  If there is a disability-related need for accommodation, an employer must explore potential reasonable accommodations that may be provided absent undue hardship.

 

Thoughts/takeaways: 1) interactive process!!!!

Title VII and COVID-19 Vaccinations

K.12.  Under Title VII, how should an employer respond to an employee who communicates that he or she is unable to be vaccinated for COVID-19 (or provide documentation or other confirmation of vaccination) because of a sincerely held religious belief, practice, or observance? (12/16/20updated 5/28/21)

Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from getting a COVID-19 vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship.  Employers also may receive religious accommodation requests from individuals who wish to wait until an alternative version or specific brand of COVID-19 vaccine is available to the employee.  Such requests should be processed according to the same standards that apply to other accommodation requests.

EEOC guidance explains that the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar.  Therefore, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance.  However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information. See also 29 CFR 1605.

Under Title VII, an employer should thoroughly consider all possible reasonable accommodations, including telework and reassignment.  For suggestions about types of reasonable accommodation for unvaccinated employees, see question and answer K.6.118210211225226, above.  In many circumstances, it may be possible to accommodate those seeking reasonable accommodations for their religious beliefs, practices, or observances.

Under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer.  This is an easier standard for employers to meet than the ADA’s undue hardship standard, which applies to requests for accommodations due to a disability.  Considerations relevant to undue hardship can include, among other things, the proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, whose vaccination status could be unknown or who may be ineligible for the vaccine.  Ultimately, if an employee cannot be accommodated, employers should determine if any other rights apply under the EEO laws or other federal, state, and local authorities before taking adverse employment action against an unvaccinated employee.

 

Thoughts/takeaways: The first sentence in the last paragraph of this § mentions how title VII reasonable accommodation for sincerely held religious beliefs is quite a bit different than the ADA standard even if they use the same terminology.

K.13.  Under Title VII, what should an employer do if an employee chooses not to receive a COVID-19 vaccination due to pregnancy?   (12/16/20, updated 5/28/21)

Under Title VII, some employees may seek job adjustments or may request exemptions from a COVID-19 vaccination requirement due to pregnancy.

If an employee seeks an exemption from a vaccine 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 VII119211212226227.

 

Thoughts/takeaways: 1) we have discussed pregnancy before. For example, see this blog entry212213227228; 2) the Pregnant Workers Fairness Act213214228229 if it passes through Congress, and there is a good probability it will, will have something to say on this as well.

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. 

 

Thoughts/takeaways: nothing to add here.

 

K.14.  Is Title II of GINA implicated if an employer requires an employee to receive a COVID-19 vaccine administered by the employer or its agent? (12/16/20, updated 5/28/21)

No.  Requiring an employee to receive a COVID-19 vaccination administered by the employer or its agent would not implicate Title II of GINA unless the pre-vaccination medical screening questions include questions about the employee’s genetic information, such as asking about the employee’s family medical history.   As of May 27, 2021, the pre-vaccination medical screening questions for the first three COVID-19 vaccines to receive Emergency Use Authorization (EUA) from the FDA do not seek family medical history or any other type of genetic information.  See CDC’s Pre-vaccination Checklist120214215229230 (last visited May 27, 2021).  Therefore, an employer or its agent may ask these questions without violating Title II of GINA.

The act of administering a COVID-19 vaccine does not involve the use of the employee’s genetic information to make employment decisions or the acquisition or disclosure of genetic information and, therefore, does not implicate Title II of GINA.

 

Thoughts/takeaways: nothing to add here.

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 doctor, pharmacy, health agency, or another health care provider in the community? (12/16/20, updated 5/28/21)

No.  An employer requiring an employee to show documentation or other confirmation of vaccination from a doctor, pharmacy, or other third party 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: nothing to add here.

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

ADA:  Employer Incentives for Voluntary COVID-19 Vaccinations

K.16.  Under the ADA, may an employer offer an incentive to employees to voluntarily provide documentation or other confirmation that they received a vaccination on their own from a pharmacy, public health department, or other health care provider in the community?  (5/28/21)

Yes.  Requesting documentation or other confirmation showing that an employee received a COVID-19 vaccination in the community is not a disability-related inquiry covered by the ADA.  Therefore, an employer may offer an incentive to employees to voluntarily provide documentation or other confirmation of a vaccination received in the community.  As noted elsewhere, the employer is required to keep vaccination information confidential pursuant to the ADA.

 

Thoughts/takeaways: 1) employers are free to offer an incentive so long as the employee is getting the vaccination from a pharmacy, public health department, or other healthcare provider in the community; 2) as you can see from the very next question, different story with respect to vaccinations administered by the employer or the employer’s agent.

K.17.  Under the ADA, may an employer offer an incentive to employees for voluntarily receiving a vaccination administered by the employer or its agent?  (5/28/21)

Yes, if any incentive (which includes both rewards and penalties) is not 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. As explained in K.16., however, this incentive limitation does not apply if an employer offers an incentive to employees to voluntarily provide documentation or other confirmation that they received a COVID-19 vaccination on their own from a third-party provider that is not their employer or an agent of their employer.

 

Thoughts/takeaways: 1) incentives are permissible if the employer or the employer’s agent is the one administering the vaccine so long at the incentive is not so substantial as to be coercive. What that means is anybody’s guess, which is why employers still want the EEOC to clarify this. In the meantime, keep any such incentives really small, such as small dollar gift cards, a mug, etc.

GINA:  Employer Incentives for Voluntary COVID-19 Vaccinations

K.18.  Under GINA, may an employer offer an incentive to employees to provide documentation or other confirmation that they or their family members received a vaccination from their own health care provider, such as a doctor, pharmacy, health agency, or another health care provider in the community? (5/28/21)

Yes.  Under GINA, an employer may offer an incentive to employees to provide documentation or other confirmation from a third party not acting on the employer’s behalf, such as a pharmacy or health department, that employees or their family members have been vaccinated.  If employers ask 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: nothing to add here.

K.19.  Under GINA, may an employer offer an incentive to employees in exchange for the employee getting vaccinated by the employer or its agent? (5/28/21)

Yes.  Under GINA, as long as an employer does not acquire genetic information while administering the vaccines, employers may offer incentives to employees for getting vaccinated.  Because the pre-vaccination medical screening questions for the three COVID-19 vaccines now available do not inquire about genetic information, employers may offer incentives to their employees for getting vaccinated.  See K.14121215216230231 for more about GINA and pre-vaccination medical screening questions.

 

Thoughts/takeaways: nothing to add here.

K.20. Under GINA, may an employer offer an incentive to an employee in return for an employee’s family member getting vaccinated by the employer or its agent? (5/28/21)

No.  Under GINA’s Title II health and genetic services provision, an employer may not offer any incentives to an employee in exchange for a family member’s receipt of a vaccination from an employer or its agent.   Providing such an incentive to an employee because a family member was vaccinated by the employer or its agent would require the vaccinator to ask the family member the pre-vaccination medical screening questions, which include medical questions about the family member.  Asking these medical questions would lead to the employer’s receipt of genetic information in the form of family medical history of the employee.  The regulations implementing Title II of GINA prohibit employers from providing incentives in exchange for genetic information.  Therefore, the employer may not offer incentives in exchange for the family member getting vaccinated.  However, employers may still offer an employee’s family member the opportunity to be vaccinated by the employer or its agent, if they take certain steps to ensure GINA compliance.

 

Thoughts/takeaways: nothing to add here.

K.21. Under GINA, may an employer offer an employee’s family member an opportunity to be vaccinated without offering the employee an incentive? (5/28/21)

Yes.  GINA permits an employer to offer vaccinations to an employee’s family members if it takes certain steps to comply with GINA.  Employers must not require employees to have their family members get vaccinated and must not penalize employees if their family members decide not to get vaccinated.  Employers must also ensure that all medical information obtained from top family members during the screening process is only used for the purpose of providing the vaccination, is kept confidential, and is not provided to any managers, supervisors, or others who make employment decisions for the employees.  In addition, employers need to ensure that they obtain prior, knowing, voluntary, and written authorization from the family member before the family member is asked any questions about his or her medical conditions.  If these requirements are met, GINA permits the collection of genetic information.

 

Thoughts/takeaways: nothing to add here.

Today’s blog entry explores a variety of issues dealing with vindicating rights under the ADA in the face of a collective bargaining agreement (CBA). The case of the day is Murphy v. United Parcel Service,186188204208207 Inc., a decision from the Eastern District of Wisconsin on March 23, 2021. As usual, the blog entry is divided into categories and they are: facts; CBA need not be exhausted prior to filing an ADA claim; CBA does not require arbitration of the claim; plaintiff has standing; failure to accommodate claim do not require an adverse action; sufficient allegations exist with respect to plaintiff being otherwise qualified; 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 Excepting Materials in Brackets Added at the Very End of This Section.

 

The defendant hired the plaintiff in 2004. Dkt. No. 19 at ¶7. The plaintiff worked in the Germantown facility, but now works in Elm Grove as package handler; he is a member of the Teamsters Local Union 344. Id. at ¶7, 9. The plaintiff, who is deaf and communicates through American Sign Language (ASL), did not have communication problems in Germantown because he had a supervisor who knew some ASL and whenever there was an important meeting, the defendant provided a sign language interpreter. Id. at ¶¶6, 7. The plaintiff began having problems with communication and the lack of interpreters once he transferred to the Elm Grove facility. Id. at ¶7. The plaintiff requested *9 interpreters for meetings and provided the human resources manager with contact information for interpreters. Id. at ¶8. On multiple occasions, the defendant failed to provide interpreters for meetings discussing promotions, scheduling, job changes, discipline and safety. Id. The failure to provide interpreters continues to be a problem for the plaintiff. Id. 9

 

The plaintiff has filed union grievances for the alleged “failure[s] to provide interpreters or appropriate communication.” Id. at ¶9. At least two of the grievances went to the Wisconsin Area Panel Grievance Committee, which ruled in the plaintiff’s favor and ordered the defendant to provide appropriate sign language interpretation to the plaintiff. Id. The plaintiff alleges that these orders have been followed “sporadically at best” and that there continues to be a failure to provide interpretation for many meetings, resulting in his not getting the information that his co-workers receive in daily briefings. Id. at ¶10. The plaintiff alleges that “[i]n the alternative,” the defendant has failed to provide him with notes on the meetings or has provided inadequate notes. Id. at ¶11. As a result, he has missed information about schedule changes in the days of the week he was supposed to work and how to participate in incentive programs. Id. at ¶12. The plaintiff alleges that the Elm Grove facility fails to follow UPS corporate policy for deaf and hard of hearing employees and applicants, which generally requires interpreters. Id.

 

The plaintiff applied for three full-time driving positions in 2016. Id. at ¶¶13-14. The process for bidding on driving positions is covered by the *10 seniority system mandated by the CBAs. Dkt. No. 24-3 at 7 (Sec. 8). A vacancy must be filled be the senior bidding employee. Id. 10 4 Murphy v. United Parcel Serv. Case No. 19-cv-1728-pp (E.D. Wis. Mar. 23, 2021)

 

The first two times the plaintiff bid for full-time driver positions—on August 16 and September 16, 2016—he was the most senior bidder. Dkt. No 19 at ¶13. The defendant removed the postings without explanation. Id. The third time he bid (again, as the most senior bidder), on September 27, 2016, the plaintiff took a required physical exam (and passed), then was scheduled to take a driving test. Id. at ¶¶14-15. An applicant must complete several steps to be hired as a package car driver. He must pass the physical examination, which the plaintiff did. Dkt. No. 19 at ¶14. The applicant also must meet the hearing threshold required by the FMCSA. 49 C.F.R. §391.41(b)(11). The plaintiff obtained an exemption from the hearing requirement through an experimental program conducted by the FMCSA. Dkt. No. 19 at ¶14.

 

Next, the plaintiff was required to pass a driving test. Dkt. No. 19 at ¶15. When he took the test on November 7, 2016, the plaintiff requested an interpreter and asked to use a student truck because it had enough seats for the plaintiff, the tester and the interpreter. Id. The defendant refused to allow the interpreter to ride along and required the plaintiff to take the test in an older vehicle with a manual transmission. Id. When the plaintiff asked if he could practice driving with supervisors (which he says had happened in the past), the HR representative told him that option was no longer available because of liability concerns. Id. The plaintiff asserts, however, that after he *11 was told this, another driver (who was not deaf) was allowed to practice with a supervisor. Id. 11

 

The plaintiff alleges that before starting the test, the tester agreed to use hand gestures to administer directions on the test; however, the tester did not use the agreed upon gestures and used different gestures. Id. at ¶16. The tester never had the plaintiff pull over during the test to explain to the plaintiff what the tester wanted the plaintiff to do or what was to be evaluated. Id. The plaintiff says that his test was fifty-five minutes long; he says that non-deaf drivers usually had a test lasting between fifteen to twenty minutes. Id. The plaintiff did not pass the test. Id.

 

The plaintiff had a second driving test that was similar to the first one, except that the tester wrote notes and stuck them in the plaintiff’s face while he was driving. Id. at ¶17. The tester also marked a score for the plaintiff on the uphill parking portion of the test, even though the plaintiff does not recall being directed to perform this portion of the test. Id. The plaintiff did not pass this test. Id. After the second test, the tester allegedly told others that the defendant was determined never to let the plaintiff become a company driver. Id. at ¶18.

 

The CBAs are negotiated every five years [an internal process exist for resolving disagreements with the CBA].

 

II

A Collective Bargaining Agreement Need Not Be Exhausted Prior to Filing an ADA Claim

 

  1. The Labor Management Relations Act is silent on whether exhaustion is an affirmative defense with the default rule being it is an affirmative defense.
  2. Plaintiff is not suing under the Labor Management Relations Act rather this is a title I of the ADA claim claiming the defendant failed on multiple occasions to provide reasonable accommodations to help the plaintiff in his work and also failed on multiple occasions to provide reasonable accommodations so that he was denied a promotion to full-time work.
  3. Several courts have held that exhaustion of a CBA is not jurisdictional.

 

III

The Labor Management Relations Act Does Not Preempt ADA Claims

 

  1. The amended complaint asserts federal law claims.
  2. The Sixth Circuit has held that the Labor Management Relations Act did not preempt a claim brought in federal court under the ADA.
  3. Since the claim is based upon a federal cause of action and is in federal court, there is no danger of divergent application of the collective bargaining agreement provisions and therefore, preemption simply does not apply.
  4. A claim under the ADA is a separate, statutorily created federal cause of action independent from a CBA based contract claim under the Labor Management Relations Act. So, any contractual right under the collective bargaining agreement does not negate the statutory rights under the ADA.
  5. The Labor Management Relations Act does not bar a plaintiff from bringing an independent state or federal claim in court unless the claim can be conclusively resolved by interpretation of the CBA. That is, the claim is only precluded if it can be dispositively resolved through an interpretation of a CBA, which is not the case here.
  6. The defendant has not identified any provision of the CBA needing to be reinterpreted, or applied differently to other similarly situated employees if the court were to rule on the plaintiff’s ADA claim.
  7. The first amended complaint alleges that the defendant repeatedly failed to provide interpreters for meetings and other employment functions when requested and refused to provide notes on meetings without interpreters in violation of the ADA. Figuring this case out does not involve interpreting the CBA to decide whether the defendant has violated federal law. The case also has nothing to do with seniority bidding processes.
  8. The plaintiff alleges he was treated differently from other employees during the examination process so that the defendant would never allow him to become a driver. Further, the procedures employed during testing are not governed by the CBA. So while the court may consult the collective bargaining agreement or his prior grievances in resolving this case, a decision on the plaintiff’s claim does not require interpretation of the CBA.

 

IV

The CBA Does Not Require Arbitration of the Claims

 

  1. The relevant section of the CBA with respect to the ADA states as follows:

 

The Parties agree to abide by the provisions of the Americans with Disabilities Act. The Company shall be required to negotiate with the Local Union prior to providing a reasonable accommodation to a qualified bargaining unit employee. The Company shall make a good faith effort to comply in a timely manner with requests for a reasonable accommodation because of a permanent disability. Any grievance concerning the accommodation not resolved at the center level hearing will be referred to the appropriate Union and Company co-chairs for the Local Area or to the Region Grievance Committee, if applicable. If not resolved at that 32 14 Murphy v. United Parcel Serv. Case No. 19-cv-1728-pp (E.D. Wis. Mar. 23, 2021) *33 Dkt. No. 24-1 at 49-50 (emphasis added). level within then (10) days, the grievance shall be submitted directly to the National Safety and Health Grievance Committee. If the Company claims that the individual does not fall within the protections of the Americans with Disabilities Act, then the grievance must follow the normal grievance procedure in order to resolve that issue before it can be docketed with the National Safety and Health Committee. Any claim in dispute concerning rights under this Section shall be addressed under the grievance and arbitration procedures of this Agreement. A grievance may be filed by an employee or the Union, notwithstanding any contrary provision in any Supplement, Rider or Addendum. The submission of a claim under this Section to the grievance and arbitration procedures of the Agreement shall not prohibit or impede an employee or the Union from pursuing their statutory rights under the Americans with Disabilities Act (ADA) or comparable state or local laws.

 

  1. The section talking about how a submission of claim under this particular section of the CBA does not prohibit or impede an employee or the union from pursuing their statutory rights under the ADA is ambiguous. For instance, it doesn’t define what a claim under this section means. Also, this section does not appear to give rise independent claims, rather it simply states its intent to abide by the ADA. It also isn’t clear whether a claim refers to an employee claim for reasonable accommodation or whether it refers to a claim regarding the defendant’s handling of such claims. Finally, it is unclear whether this section means that an employee may pursue his statutory rights under the ADA and arbitration or whether he may pursue those rights in the courts. The CBA could have easily made that clear. Accordingly, the language of the CBA suggests that nothing shall prohibit or impede a plaintiff from pursuing his rights under the ADA in any forum.
  2. For a claim to be subject to arbitration, the agreement must be really clear (clear and unmistakable), that the claim subjects itself to arbitration and this one isn’t.
  3. In short, the CBA did not articulate a clear intent to require employees to submit ADA claims to the grievance process. For that matter, it does not contain a clear waiver of an employee’s right to pursue an ADA claim in federal court.

 

V

Plaintiff Has Standing to Pursue His Claim

 

  1. The plaintiff took all the necessary steps to file an ADA claim: he filed his claims with the EEOC and received a notice of right to sue with a finding of reasonable cause. The plaintiff has suffered a concrete and particularized injury. The injuries he alleges are neither hypothetical nor illusory; the plaintiff requested an ASL interpreter, he grieved the failure to accommodate and prevailed twice, he applied three times for the driving position, he requested accommodations in testing and he failed the driving test twice without accommodations. He alleges that others were tested under different conditions, allowed to practice, and accommodated.
  2. The defendant argues that the plaintiff must repeatedly return to a process that has failed him. Twice the state panel has agreed with the plaintiff and ordered the defendant to provide accommodation. Yet the plaintiff alleges that the defendant still has failed to address his needs. It is not clear why the defendant believes that a third—or fourth or fifth trip through the grievance process would make a difference. The defendant’s argument has little to do with ripeness. The plaintiff’s claims are ripe.

 

VI

Failure to Accommodate Claims Do Not Require an Independent Adverse Action

 

  1. In the Seventh Circuit, to prevail on a failure to accommodate claim a plaintiff must show: 1) he was a qualified individual with a disability; 2) his employer was aware of a disability; and 3) the employer failed to reasonably accommodate his disability.
  2. The Seventh Circuit does not require a plaintiff pursuing a failure to accommodate claim to allege an adverse action.
  3. Plaintiff alleged: 1) he was a qualified individual with a disability; 2) the employer was aware of it disability and have previously provided ASL interpreters at another location; 3) the plaintiff requested an ASL interpreter for meeting and had agreed the requested accommodation twice and the defendant continue to ignore his request. All of this is sufficient to get by a motion to dismiss.
  4. Since an adverse action is not an essential element of a failure to accommodate claim, the fact that the plaintiff did not plead it in the amended complaint is irrelevant.

 

VII

Sufficient Allegations Exist With Respect to Whether the Plaintiff Was Otherwise Qualified

 

  1. To state a discrimination claim under the ADA, a plaintiff has to allege: 1) he is a person with a disability within the meaning of the ADA; 2) he is qualified to perform the essential elements of the job with or without reasonable accommodation; and 3) he suffered an adverse employment action because of his disability.
  2. Here, plaintiff alleges that he is qualified to perform the essential functions of the job with reasonable accommodation. He alleged that he sought and was granted a hearing exemption from the Federal Motor Carrier Safety Administration and passed the requisite physical test. He holds a valid Wisconsin driver’s license. Finally, he was denied accommodations and failed the driving test twice.
  3. Whether a plaintiff can perform the essential functions of the job with or without reasonable accommodations is a jury question.

 

Separately, the court granted the defendant’s motion to strike the claim for declaratory relief because the amended complaint did not identify any policies or regulations for the court to declare in violation of the ADA and did not assert a declaratory relief claim. For that matter, the plaintiff did not respond to the defendant’s arguments on the issue. Also, the court explicitly encouraged the party to consider mediation, especially since the defendant had already litigated a similar case in another federal court.

 

VIII

 

Thoughts/Takeaways

 

  1. If an employee is faced with an ADA claim and is a member of a union, the employee’s claim will not be bounced out of court automatically if the employee does not go through the collective bargaining grievance process.
  2. The Labor Management Relations Act may preempt ADA claims in narrow situations, but not often because just about all cases will not involve interpreting the CBA to decide whether the defendant has violated the ADA. It may be a different story with respect to seniority bidding processes (think mandatory reassignment situations).
  3. Any agreement to arbitrate must be clear and unmistakable.
  4. The more specific a plaintiff is with respect to allegations in an ADA claim, the more likely the plaintiff will have standing and also get by any claims he or she is not otherwise qualified.
  5. Check your jurisdiction with respect to whether failure to accommodate claim require an independent adverse action. The courts are definitely split on that question. Look for that question to go to the Supreme Court eventually.
  6. Whether you are qualified under the ADA involves asking whether you can perform the essential functions of the job with or without reasonable accommodations and is a jury question.
  7. It wouldn’t surprise me to see an appeal to the Seventh Circuit. Hard to say what the Seventh Circuit would do on the various issues raised in this opinion.

I have a ton of cases in my pipeline. However, sometimes breaking developments jump the pipeline. This is one of those situations. As everybody knows, the CDC came out with new guidelines regarding mask wearing, which can be found here185198205. Everybody and anybody is talking about them, and the guidelines have big implications for the world of the ADA and persons with disabilities. A couple of days before the guidelines came out, I read an article saying that the CDC should do exactly this type of thing as a way to encourage people to get vaccinated. Since the guideline came out, I have read that because there is no proof of vaccination piece associated with the guidelines, this will only make matters worse. On that score, I recommend this article by Leana Wen M.D., here186199206. Regardless, the new guidelines certainly merits discussing and trying to figure out what it means for the ADA. As usual, the blog entry is divided into categories and they are: the CDC guidelines; can employers, governmental entities, and places of public accommodations require proof of vaccination before allowing the employee to return to work, providing services to an individual, or allowing that individual to access a place of public accommodation; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories. That said, this blog entry isn’t that long by my standards. So, you are probably going to want to read all of it.

 

I

The CDC Guidelines

 

  1. The CDC guidelines can be found here187200207.
  2. Fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidances.
  3. Fully vaccinated people can refrain from testing following a known exposure unless they are residents or employees of a correction or detention facility or homeless shelter.
  4. Fully vaccinated people can resume domestic travel and refrain from testing before or after travel or self quarantine after travel.
  5. Fully vaccinated people can refrain from testing before leaving the United States for international travel unless required by the destination. They also can refrain from self quarantine after arriving back in the United States.
  6. Fully vaccinated people can refrain from testing following a known exposure so long as they are asymptomatic with some exception for specific settings.
  7. Fully vaccinated people can refrain from quarantine following a known exposure if asymptomatic.
  8. Fully vaccinated people can refrain from routine screening testing.
  9. Indoor and outdoor activity pose minimal risk to fully vaccinated people.
  10. Fully vaccinated people should still get tested if they are experiencing symptoms of Covid-19.
  11. Fully vaccinated people should not visit private or public setting that they have tested positive for Covid-19 and in the prior 10 days or they are experiencing Covid-19 symptoms.
  12. Masks are still required in healthcare settings and when traveling on planes, buses, trains and other forms of public transportation, including when at the airport and at stations.

 

II

Can Employers, Governmental Entities, and Places of Public Accommodations Require Proof of Vaccination before Allowing the Employee to Return to Work, Providing Services to an Individual, or Allowing That Individual to Access a Place of Public Accommodation?

 

  1. The EEOC, here, as we have discussed previously has put out a technical assistance questions and answers when it comes to dealing with the Covid-19 situation with respect to the ADA, Rehabilitation Act, and other EEO laws. Undoubtedly that publication is going to have to be updated. For our purposes, there are several applicable paragraphs in that document. K.3. asks the question is asking or requiring an employee to show proof of receipt of a Covid-19 vaccination a disability related inquiry? The EEOC says that it is not a disability related inquiry and therefore, perfectly permissible to ask for. After all, there are many reasons that may explain why an employee has not been vaccinated and those reasons may or may not be disability related. However, subsequent employer questions, such as asking why an individual did not receive the vaccination, may lead to information about a disability and would be subject to only being allowed if it was job-related and consistent with business necessity with respect to a current employee. The EEOC goes on to say that if an employer requires its employees to provide proof they have received a Covid-19 vaccination from a pharmacy or their own healthcare provider, the employer may want to warn the employee not to provide any medical information as part of that proof in order to avoid implicating the ADA.
  2. K5. discusses the question of what happens where an employer requires vaccinations when they are available and an employee indicate that she is unable to receive a Covid-19 vaccination because of a disability. Here, the employer is going to have to allow for reasonable accommodations for such an individual. Qualification standards going to whether the employee is a direct threat are certainly permissible. As we have discussed many times, such as here188201208, direct threat is a term of art and requires an individualized analysis looking at the best current and objective medical evidence. If the employer reaches the conclusion that a nonvaccinated individual will expose others to the virus at the worksite and that individual cannot be vaccinated, the employer can exclude the employee from the workplace providing there is no other way to provide a reasonable accommodation that would eliminate or reduce that risk so that the unvaccinated employee does not pose a direct threat. Be sure to engage in the interactive process before terminating any such individual.
  3. K6. talks about an employee refusing to get vaccinated because of a sincerely held religious belief. The employer has to make accommodations here too. However, keep in mind undue hardship in this section of the law does not, for now, match up with undue hardship in the ADA world. It doesn’t take much to show an undue hardship when it comes to accommodating a sincerely held religious belief.
  4. K8. talks about how requiring proof of a Covid-19 vaccination does not violate the Genetic Information Nondiscrimination Act.
  5. A nonfederal governmental entity would be perfectly within its rights under title II of the ADA to demand proof of vaccination before rendering services. Per 28 C.F.R. §35.130189202209(h), a public entity can impose legitimate safety requirements necessary for the safe operation of its services, program, or activities so long as its safety requirements are based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.
  6. A place of public accommodation under 42 U.S.C. §12181190203210(7) would be perfectly within its right to demand proof of vaccination before rendering services were allowing the person to access services because, per 28 C.F.R. §36.301191204211(b), a place of public accommodation may impose legitimate safety requirements that are necessary for safe operation. Safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.

 

III

Thoughts/Takeaways

 

  1. As a practical matter, employers, businesses, and governmental entities have no way of knowing whether a person has received the vaccine or not. It is certainly permissible for employers, nonfederal governmental entities, and businesses to demand proof of vaccination before giving services. Politically that is a real hot potato. Even though the phones that we all carry around give us little privacy anymore, requiring proof of vaccination is a step too far for many in the United States. Some countries are taking that approach. For example, Israel puts a notification on your smart phone that you can show to businesses that you have been fully vaccinated. With that notification, you are allowed to do anything.
  2. Would proof of vaccination violate HIPAA? The answer to that is no because that law only applies to covered entities, which just about all businesses would not be. True, healthcare entities are covered HIPAA entities but the guidance excludes healthcare entities from its coverage.
  3. The guidance is a game changer for the deaf and hard of hearing because now a deaf and hard of hearing person would be perfectly within their rights to request a reasonable accommodations of a person removing his or her mask if the deaf and hard of hearing individual and the person wearing the mask have both been vaccinated. I just picked up a lunch order for my daughter and I at Jason’s Deli and came very close to making that requested reasonable accommodation myself as I could not hear a word that the employee told me when I went in to pick up my order. I decided against that approach as being too confrontational and just explained to the employee that I was deaf and wore hearing aids and could not understand anything she said. She then tried to speak a little louder, which of course didn’t help much (it is a myth that the louder the sounds are, the easier they are to understand. In fact, it is the opposite), but I was able to figure it out. I would be more aggressive if I was in a doctor’s office.
  4. Vaccines have not been approved for children under 12 years old yet. Also, there are many people who are immunocompromised. Expect these guidelines to make things very difficult for such affected individuals with respect to their choices.
  5. One of the things that people will have to get use to is that for a year now the federal government has been quite explicit in what we need to do to stay safe. Now, the wheels have come completely off with the CDC saying essentially that wearing a mask or not is an individual choice even though Covid-19 is far from conquered.
  6. Two things you are going to want to very much keep in mind going forward are the concept of direct threat, which has now changed considerably in its application, and the interactive process. Remember, a covered entity must do everything short of a direct threat to reasonably accommodate a person with a disability.
  7. What happens if you have a person with anxiety whose anxiety is severely exacerbated by people around him or her not wearing masks or the person is immunocompromised. Is it a reasonable accommodation for that individual to insist that people around that individual wear masks? The answer is probably not but don’t be surprised if people request this. Expect to see remote work request in the situation.
  8. The $64,000 question is will America get away with the new CDC guidance without requiring proof of vaccination. The jury is very much out on that question.
  9. The guidelines are good news for the deaf and hard of hearing and bad news for kids under 12 and for parents with kids under 12 who cannot avoid taking their kids with them in public. Guidelines are also bad news for anyone immunocompromised.
  10. Look for a lot of requests for remote work to continue.
  11. Don’t forget about OSHA rules if you are an employer. You still have to provide a safe workplace for your employees.
  12. Some States and some localities may have more stringent rules and those rules still apply.
  13. CDC guidelines may have ended any possibility of the CDC nationwide eviction notice being upheld now that everyone as a practical matter can go without masks.
  14. It is too politically risky to require proof of vaccination. In fact, Florida has signed into law legislation that prohibits proof of vaccination from being asked for. So, that means we are left with an honor system.
  15. Delta Airlines is requiring all new employees to have a Covid-19 vaccine.
  16. Lots and lots of training will probably be needed. Also, don’t forget about knowledgeable legal counsel.

Today’s case of the day deals with two questions. First, just how does association standing work? Second, what is the burden of proof when it comes to figuring out whether something is readily achievable per title III of the ADA?

 

The case is Schalamar Creek Mobile Homeowners Association, Inc. v. Adler decided by the 11th Circuit on May 7, 2021, here185188199200. It is an unpublished decision. So, check your jurisdiction on how persuasive the decision might be. As usual the blog entry is divided into categories, and they are: facts; association standing; burden of proof readily achievable; and thought/takeaways. Of course, the reader is free to focus on any or all of the sections.

 

I

Facts

 

Schalamar Creek is a mobile home community located in Polk County, Florida, designed for adults fifty-five or older. Like many mobile home parks, Schalamar Creek offers amenities for its residents. It has a golf course, a driving range, several pools, a lounge, and a clubhouse. The clubhouse, built in 1989, is a three-story building with its own amenities. There is a restaurant on the first floor. On the second floor, there is a large event space and a bank. The rent deposit box is also located on the second floor. The third floor houses offices for Schalamar Creek’s management. The golf course, driving range, restaurant, bank, and lounge are open to the public.

 

Plaintiff’s filed a RICO claim as well as an ADA claim. We are not going to worry about the RICO claim, which takes up a large part of the opinion. Instead, we are going to focus on the ADA side. The defendants argued that the homeowners association (HOA) did not have standing. They also argued that the HOA did not meet its burden of proof with respect to readily achievable. Therefore, the summary judgment for the defense should stand.

 

The 11th Circuit, as discussed below, winds up disagreeing with the lower court on standing but agreeing with the lower court on the burden of proof of readily achievable not being satisfied by the plaintiff.

 

II

Association Standing

 

  1. An association has standing to bring suit on behalf of its members when: 1) its members otherwise have standing to sue in their own right; 2) the interests at stake are germane to the organization’s purpose; and 3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.
  2. In the 11th Circuit, organizational plaintiff’s only have to establish that at least one member faces a realistic danger of suffering an injury.
  3. The ADA confers on any person the right to be free from discrimination on the basis of disability with respect to the full and equal enjoyment of facilities. That right is violated when an individual encounters architectural barriers that discriminate against him on the basis of his or her disability. So, an individual encountering architectural barriers has suffered injury precisely in the form the statute was intended to guard against.
  4. Several members of the HOA are persons with disabilities who testified they had difficulty accessing the common areas due to their disabilities.
  5. The HOA also specifically identified barriers at the clubhouse that made it inaccessible to residents with mobility, balance, gait, vision, and hearing difficulties, including by way of example the lack of an elevator and inaccessible configuration of the clubhouse bathrooms.
  6. Whether the claim is germane to the Association is an undemanding standard that simply requires mere pertinence between the litigation at issue and the organization’s purpose.
  7. Florida Rules of Civil Procedure 1.222 gives the HOA the authority to act as a class representative and bring suits in the name and on behalf of all Association members concerning matters of common interest of its members. Common interest to the members include such things as common property and structural components of a building or other improvements.
  8. Florida law also designate the HOA as the representative of all the mobile homeowners in all matters relating to the mobile home act regardless of whether the homeowner is a member of the Association.
  9. Residence of the mobile home park have an interest in making sure that the clubhouse is accessible and compliant with the ADA.
  10. The Florida mobile home act give the HOA the right input to institute certain claims when only a majority of members vote in favor and does not require complete commonality.

 

II

Burden of Proof Readily Achievable

 

  1. When it comes to the burden of proof for figuring out whether something is readily achievable in the 11th Circuit, it works like this: 1) plaintiff has the initial burden of production to show that an architectural barrier exists and that the proposed method of architectural barrier removal is readily achievable, i.e. easily accomplishable and able to be carried out with much difficulty or expense; 2) plaintiff must present sufficient evidence so that a defendant can evaluate the proposed solution to a barrier, the difficulty of accomplishing it, the costs of implementation, and the economic operation of the facility; and 3) once plaintiff has met its burden of production, it is the defendant with the burden of persuasion.
  2. The clubhouse predates the ADA. Although the complaint identified deficiencies with the clubhouse, the HOA presented no summary judgment evidence that any of the proposed modification were readily achievable. Instead, the HOA chose to rely on the allegations in the complaint.
  3. The HOA did not put forth any specific evidence about the feasibility of their proposals, the estimated costs associated with them, or the defendant’s ability to pay those costs.

 

III

Thoughts/Takeaways

 

  1. From reading this case, Association standing does not appear to be all that difficult to obtain in the 11th Circuit.   
  2. Whether a claim is germane to the Association is not a demanding one.
  3. The leading case on proving up readily achievable is Colorado Cross Disability Coalition v. Hermanson Family, here186189200201. That case has been cited over 142 times. You want to check your jurisdiction because how that case plays out varies from place to place. For example, we discussed the way one jurisdiction looked at that case in a previous blog entry, here187190201202.
  4. All the cases agree that readily achievable is an affirmative defense. That is, the defendant has the burden of persuasion. However, it is the plaintiff with the burden of production. What that burden of production is will also vary from place to place. You do want to check out the concurring and dissenting opinion in the Colorado Cross Disability Coalition v. Hermanson Family case, especially if you are on the plaintiff’s side.
  5. This was an unpublished decision.
  6. This is also a summary judgment case and not a motion to dismiss. The distinction is important because there is a difference between what might get by a motion to dismiss and what gets by summary judgment. After reading this case, the question in my mind is whether the two will not bleed together. That is, will courts start requiring greater specificity with respect to any costs of fixing the architectural barriers when considering a motion to dismiss? They just might because these things do bleed into each other oftentimes.
  7. Assuming you can get by a motion to dismiss if you are on the plaintiff side, you definitely want to hire an accessibility specialist (Texas and California actually have certification for such specialists), to evaluate the property. Make sure that accessibility specialist discusses what it would cost to fix the architectural barriers. On the defense side, you are going to want to read this blog entry188191202203. You also going to want to hire an accessibility specialist as well as knowledgeable ADA legal counsel to help sort out just what are your legal obligations with respect to fixing the architectural barriers, which will likely mean certain barriers that you’re going to want to fix right away and other barriers that can be prioritized. Knowledgeable ADA counsel can help you figure out which of the barriers must be fixed right away and which can be prioritized.
  8. On the plaintiff side, there are strategies you can use to make your burden of production easier. For example, you can ask the defense in an interrogatory if they plan to use an undue burden and/or readily achievable defense. If so, ask them to supply their financials. That puts them in the box of having to reveal their financials if they are going to go with the readily achievable and/or undue burden defense. Remember, the readily achievable defense only applies to existing facilities and portions thereof that were built before the ADA went into effect. The number of such facilities is of course decreasing all the time considering the years that have gone by since the ADA was enacted. Circuit

Today’s blog entry deals with the question of what happens when an employer demands that an employee move to a different job without evaluating or completely assessing whether that employee is capable of performing his or her current job’s essential functions with or without reasonable accommodations. The answer to the question says the Fourth Circuit in Wirtes v. City of Newport News18618619620367207, a published opinion decided April 30, 2021, is that the employee survives summary judgment. This case is different than the usual reassignment situation where the person wants to be reassigned and the employer resists. Here, the employee did not want to be reassigned, claimed he could do the essential functions of the job with reasonable accommodations, and had no choice but to leave the employment because the employer insisted on the reassignment. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that an employer must explore all options prior to insisting on reassignment; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Facts

 

The facts can be condensed quite a bit. In short, what happened here is that you have a police officer that developed a condition as a result of wearing a duty belt they have to wear on their waist. In the end, instead of fully assessing whether the police officer could do the essential functions of his job with or without reasonable accommodations, the employer demanded that the police officer be reassigned to a non-detective position. At first, he accepted the position. However, he then reconsidered, retired, and then sued for disability discrimination, including failure to accommodate. He loses on summary judgment and appeals.

 

II

Court’s Reasoning that an Employer Must Explore All Options Prior to Insisting on Reassignment

 

  1. The ADA requires employers to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified employee with a disability.
  2. An employee is qualified if they can perform the essential functions of the employment position they hold or desire with or without reasonable accommodations.
  3. A prima facie case for failure to accommodate under the ADA involves showing: 1) the person is an individual with a disability under the ADA; 2) the employer had notice of the disability; 3) the individual could perform the essential functions of the position with reasonable accommodations; and 4) the employer refused to make such an accommodation.
  4. In a footnote, the Fourth Circuit said evaluating an employee’s physical issues is not a reasonable accommodation. Instead, reasonable accommodation, per 29 C.F.R. §1630.218718719720468208(o), refers to modifications or adjustment to the work environment that enables an individual with a disability who is qualified to perform the essential functions of that position to stay in that position. So, the only plausible accommodation cited by the district court was the City’s offer to reassign the plaintiff to a position as a logistics manager.
  5. In another footnote, the Fourth Circuit said that it was error for the district court to not explicitly find what the essential functions of plaintiff’s desired position were or that there were no other reasonable accommodations available so that transfer was the only viable option. In this same footnote, the court goes on to say that the practical effect of the ruling is when an employer decides to accommodate an employee by reassigning them, district courts need to consider whether other reasonable accommodations exist that permit the employee to perform the essential functions of their current position with reasonable accommodations. As such, that inquiry will require district courts to consider what the essential functions of the position are before jumping to whether the employee was properly accommodated.
  6. Reassignment is the ADA’s accommodation of last resort and such a view is supported by both the EEOC and case law.
  7. The EEOC has long advised that before considering reassignment as a reasonable accommodation, employers should first consider those accommodations enable an employee to remain in his or her current position.
  8. The EEOC has explicitly said that reassignment is the reasonable accommodation of last resort and is required only after it has been determined: 1) there are no effective accommodations enabling the employee to perform the essential functions of his or her current position; or 2) all other reasonable accommodations impose an undue hardship on the employer.
  9. The undue hardship standard has been adopted by several circuit courts to explain that an employer can reassign an employee with a disability at the employee’s request where any other reasonable accommodation poses an undue hardship to the employer.
  10. In a footnote, the court cited to an 8th Circuit case holding that the very prospect of reassignment does not even arise unless accommodation within the individual’s current position poses an undue hardship.
  11. Treating reassignment as a last among equals respects the core values underlying the ADA and employment law more generally.
  12. The ADA’s treatment of reassignment as a last among equals accommodation is a situation where employers, employees with disabilities, and the coworkers of employees with disabilities all win. That is, allowing other reasonable forms of accommodation to take precedence over reassignment prevents either the employer or the employee with a disability from unilaterally insisting upon reassignment to a vacant position. It also helps employers by protecting their discretion over hiring for the open spot. It helps employees by keeping them in their present job rather than forcing them into an unfamiliar position. It also protects the employee with a disability coworkers by both during their confidence that the misfortune of a colleague does not unfairly deprive them of opportunities for which they themselves have worked for. So, reassignment is something that should be held in reserve for unusual circumstances.
  13. Reassignment is a disfavored accommodation that employers are generally under no obligation to offer.
  14. Every Circuit (Seventh, Third, Tenth, D.C.), that has considered the question of whether reassignment to a vacant position is permissible when the employee wishes to stay in their current position and can perform the essential functions of that position with reasonable accommodations has concluded that the employer has failed to accommodate an otherwise qualified employee.
  15. It does not appear that any circuit court has treated transferring the employee wishing to remain in their current position who was qualified to do so as being a reasonable accommodation.
  16. Reassignment is strongly disfavored when an employee can still do their current job with the assistance of a reasonable accommodation.

 

III

Thoughts/Takeaways

 

  1. In my view, what the court says about why the accommodation of reassignment is a last resort makes a great deal of sense. In fact, to me it makes so much sense that I don’t expect to see a circuit court split on the issue of whether reassignment is a last resort or not.
  2. Interactive process interactive process interactive process. Be sure to get it right as we discussed here18818819820569209.
  3. How do you go about figuring out what are the essential functions of the job? You can start with job descriptions. Be sure to talk to people who actually do the job. Make sure you get with legal counsel to make sure that the job description is not screening out people with disabilities. Finally, make sure you have some kind of system to periodically check on the particular job’s essential functions. Jobs always evolve over time and essential functions are not static. By way of analogy, you might look at this blog entry as well18918919920670210.
  4. It makes good business sense to exhaust all possibilities with the current job before reassigning a person to another job. The employee would be more motivated to stay in that job, knows the job already, and no need to retrain.
  5. Remember you have to make reasonable accommodations unless there is an undue hardship (logistical or financial, both of which are hard to show).
  6. In the Fourth Circuit, failure to accommodate is a separate cause of action.
  7. Don’t forget about the Job Accommodation Network. They are a great resource for working out difficult reasonable accommodation situations.
  8. I personally prefer the Rehabilitation Act term “otherwise qualified,” over the ADAAA term “qualified,” because the former is more clearly a term of art. The court actually uses both terms interchangeably in its decision.

This is a two hours CLE that I am doing next week. The CLE is being offered through the Georgia bar. They are only doing the CLE for Georgia. So you are on your own with respect to CLE in your own state. If you are not seeking Georgia CLE credit, just put n/a in the CLE box. The CLE is divided into two hours. The first hour will be talking about how the Airline Deregulation Act,, the Air Carrier Access Act, the ADA, and state negligence laws all bounce into each other. The second hour, we will be talking about animals on planes in the latest final rule from the DOT. Hope you can join us. And yes, there are two laws involved here with the acronym ADA; I did a double take when I first got into this:-) to

 

 

 

 

*REMINDER* Aviation Law Section | Upcoming CLE

 

Section Members:

Make plans now to join the Aviation Law Section for a CLE event in May.

Topic: The Intersection between the Airline Deregulation Act, the Air Carrier Access Act, the Americans with Disabilities Act and State Negligence Law and Commercial Airline Travel

Date/Time: May 5, 2021 from 12 – 2 p.m.

CLE: 2 hours of trial CLE credit have been approved for this event.

The Aviation Law Section of the State Bar of Georgia will sponsor a two hour webinar featuring William Goren and chaired by Alan Armstrong, dealing with the intersection of the law as it relates to the Airline Deregulation Act, Americans with Disabilities Act (“ADA”), Air Carrier Access Act, state negligence laws and the duties and obligations of air carriers holding certificates of authority to engage transportation by air under Part 121 of the Federal Aviation Regulations. The second hour of the presentation will be devoted to understanding the DOT final rule pertaining to animals on planes and how those rules compare to the ADA rules.  Mr. Goren has extensive experience in these areas and brings a wealth of knowledge relating to this timely and interesting topic. This event is free and materials will be emailed prior to the event.

Please mark your calendars and make plans to attend this interesting and informative webinar.

Click here185 to register. Please note, you must register prior to the day of the event. After registering, Zoom will email the information needed to join the day of the webinar. If you are not a member of the State Bar of Georgia, please enter “N/A” when asked for your Bar number during the registration process.

Alan Armstrong, Chair
Aviation Law Section
State Bar of Georgia

 

I would say about 10% of my blog entries deal with ADA related nondiscrimination laws and concepts but not the ADA itself, including such things as the Fair Housing Act, Air Carrier Access Act, and constitutional law. Occasionally, we throw in a state law as well. Today is another one of those, the, Affordable Care Act (ACA), which I have not blogged on before. A recent case from the Second Circuit reveals that the ACA is another arrow in the quiver of a plaintiff’s attorney alleging that a healthcare entity did not provide effective communication. It also has a four year statute of limitations. The case of the day is Vega-Ruiz v. Northwell Health185205212, an unpublished per curiam decision decided by the Second Circuit on March 24, 2021. As usual the blog entry is divided into categories and they are: facts; court’s reasoning statute of limitations is four years; court’s reasoning primary consideration rule; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Plaintiff is profoundly deaf woman with limited English proficiency and limited ability to read lips. On October 13, 2015, she accompanied her brother to Long Island Jewish Valley Stream, a facility operated by Northwell Health, as his health care proxy for his scheduled surgery. During her brother’s visit, she requested an ASL interpreter in order to fulfill her duties as a proxy. Instead, Northwell provided a Spanish language interpreter who communicated to the plaintiff through written notes and lip reading. Three years and three months later, plaintiff filed a complaint against defendants alleging disability discrimination under the ACA, 42 U.S.C. §18116186206213(a). The District Court threw out the claim as being untimely concluding that the claim was in effect a Rehabilitation Act claim so the New York’s three year statute of limitation period for personal injury actions applied.

 

II

Court’s Reasoning Statute of Limitations Is Four Years

 

  1. Before Congress enacted 28 U.S.C. §1658187207214, if a federal statute lacked a limitation period the federal courts looked to the most appropriate or analogous state statute of limitations.
  2. The Rehabilitation Act lacks an express statute of limitations. So, courts apply the limitation period of a state’s personal injury laws.
  3. In 1990, Congress enacted §1658 to simplify the arduous task of determining which limitation period applies to an act of Congress not containing a statute of limitations.
  4. Under §1658, Congress created a uniform federal statute of limitations applying when a federal statute fails to set its own limitation periods. §1658 provides a four-year catchall limitation period for claims arising under acts of Congress in effect after December 1, 1990 that do not specify a statute of limitations.
  5. In a footnote, the court noted that the practice of borrowing various state statute of limitations created a number of practical problems, including: obligating judges and lawyers to determine the most analogous state law claims; imposing uncertainty on litigants; and creating a situation where reliance on varying state laws results in undesirable variance among the federal courts and disrupts the development of federal doctrine on the suspension of limitation periods.
  6. The United States Supreme Court has concluded that §1658’s four year statute of limitation applies just as much to an amendment to an existing statute as it does to a new stand-alone statute. With respect to any amendment, what matters is the substantive effect of an enactment. The key is the creation of new rights of action and corresponding liabilities and not the format in which it appears in the code. In other words, the four-year statute of limitation applies if the plaintiff’s claim against the defendant was made possible by a post 1990 enactment.
  7. A plaintiff bringing a claim under the ACA presents a different case than a plaintiff alleging the same harm under the Rehabilitation Act.
  8. Northwell’s argument that §1658 needs to be construed narrowly is superseded by the Supreme Court, which has held that a narrow reading of “arising under,” subverts Congress’s goal by restricting §1658 the cases in which the plaintiff’s cause of action is based solely on a post 1990 statute establishing a new cause of action without reference to pre-existing law.
  9. Congress when enacting §1658 sought to avoid the precise situation of trying to untangle competing statutes of limitations where the federal statute on which plaintiff’s claim is based lacks its own limitation period.
  10. Plaintiff’s disability claim is made possible by the ACA because the ACA changed Northwell’s obligation by subjecting them to the “primary consideration,” obligation when it had previously been subjected to the lesser “encouraged to consult,” obligation. Accordingly, §1658 applies and the four-year statute of limitations is the applicable statute. Since only 3 ½ years transpired before filing the claim from the incident, plaintiff claim is timely.

 

III

Primary Consideration Rule

 

  1. The ADA creates a different set of standards for public entities under title II than for places of public accommodations under title III when it comes to effective communications.
  2. Under title II’s final implementing regulation, 28 C.F.R. §35.160188208215(b)(2), a public entity has to give primary consideration to the kind of aid requested by a person with a communication disability, though the type of auxiliary aid or service necessary to ensure effective communication varies in accordance with the method of communication used by the individual. Giving primary consideration mean that a title II entity has to honor the person’s choice unless it can demonstrate that another equally effective means of communication is available, or that the use of the means chosen would result in a fundamental alteration or in an undue burden.
  3. Under title III’s final implementing regulation, 28 C.F.R. §36.303189209216(c)(1)(ii), places of public accommodations are only encouraged to consult with the person with a disability to discuss what aid or service is appropriate. Title III entities are not obligated to honor an individual’s choice of aid.
  4. The Department of Justice has said that strongly encouraging consultation with persons with disabilities in lieu of mandating primary consideration of their expressed choice is consistent with congressional intent with respect to title III of the ADA.
  5. The ACA diverged from the Rehabilitation Act because the ACA does not distinguish between title II public entities and title III places of public accommodations. Instead, the ACA applies title II requirements to all defendants. In particular, 45 C.F.R. §92.102190210217(a) provides, “any entity operating or administering a program or activity under this part shall take appropriate steps to ensure that communication with individuals with disabilities are as effective as communication with others and subprograms or activities in accordance with the standards found that 28 C.F.R. 35.160 through 35.164.” In other words, the ACA extends primary consideration to individuals seeking services at title III places of public accommodations.
  6. In a footnote, court notes that the remedies for violating the ACA are tied into the remedies for violating the Rehabilitation Act, 42 U.S.C. §18116191211218(a). Those remedies include: allowing a person discriminated against to seek injunctive relief, damages, etc.; giving the Atty. Gen. the power to investigate claims and undertake periodic compliance reviews, and allowing private parties or the Atty. Gen. or both to bring civil suits (42 U.S.C. §12133192212219, 42 U.S.C. §12188193213220).
  7. In a footnote, the court said that at the time of the discrimination proposed rules regarding the change in standard applying to disability discrimination claim under the ACA existed. Although those rules were amended in August 2020, the relevant rules to this appeal were not substantively changed.

 

IV

Thoughts/Takeaways

 

  1. The issue of the four-year statute of limitations is something that we have discussed previously, such as here194214221. The key question is whether new rights were created after December 1 of 1990. With respect to the ADA, most of the time new rights were not created. However, in some cases you could argue that there were new rights created by the amendments to the ADA. For example, under the amendments to the ADA you can no longer consider mitigating measures when it comes to deciding whether a person has a disability. The amendments to the ADA expanded the ADA’s definitional terms, such as but not limited to what is a major life activity. So, it is possible that a person may have been given new rights depending upon the major life activity that they have and/or their use of mitigating measures. I don’t believe there are many situations where the amendments created new rights rather than clarifications, but some such situations may well exist.
  2. The practical problems for figuring out a statute of limitations for a federal claim are every bit what the court notes in one of its footnotes. For example, states don’t always agree that the personal injury statute of limitations is what applies. Sometimes, a court will find that the disability nondiscrimination statute of limitation applies. The various statute of limitations can range all over the place with respect to their time frame.
  3. The Rehabilitation Act does not follow the primary consideration rule. However as we have discussed here195215222, case law does exist saying that anything that hinders effective communication is not effective communication under the Rehabilitation Act. Admittedly, courts are taking various views on what that means as we discussed in this blog entry196216223. That said, is an effective communication case under the ACA really different than an effective communication case under the Rehabilitation Act? The standards of liability are different, but aren’t they in essence the same claim? That said, there can be no doubt that the ACA gives a person rights that did not previously exist before 1990. So, it makes sense that the four-year statute of limitation applies to ACA matters even if the court’s language is a bit ambiguous.
  4. Any entity subject to the ACA that does not go about effective communication with its customers/patient properly is likely to face an ACA cause of action. True, the company may also face ADA and Rehabilitation Act claims as well. However, the ACA allows the plaintiff to utilize the “primary consideration,” rule whereas the ADA and the Rehabilitation Act do not. Arguably, the primary consideration rule is even more broad than the “hinder communication,” principle established in Silva197217224, which we discussed here198218225. Any plaintiff attorney dealing with a defendant subject to the ACA and an effective communication claim strongly needs to consider adding the ACA claim.
  5. Since the remedies for the ACA are tied into the Rehabilitation Act, that means punitive damages are out under Barnes v. Gorman199219226.
  6. I don’t get how a Spanish language interpreter is an appropriate call for a person needing an ASL interpreter.
  7. This case is a per curiam unpublished decision and so its precedential value is limited, especially depending upon the jurisdiction. Nevertheless, the case does suggest one possibility where courts may be heading and so as a matter of preventive law. So, companies subject to the ACA may want to think about enacting policies and procedures reflecting the primary consideration approach rather than the consultation approach.

Today’s blog entry is an update on a prior blog entry where I discussed a District Court of New Hampshire decision saying that legislative immunity trumps everything, including the ADA. That case got appealed to the First Circuit. I was very flattered to learn that my blog entry discussing the decision holding that legislative immunity trumps everything was actually included as an appendix by the appellant/plaintiffs in the case in their appellate brief to the First Circuit. The First Circuit on April 8, 2021 vacated the decision218 and remanded for further proceedings. Let’s see how they got to that point. As usual, the blog entry is divided into categories and they are: additional facts; court’s reasoning; and thoughts/takeaways. The blog entry is pretty short, and so you will probably want to read all of it.

 

I

Additional Facts

 

The facts are laid out in my prior blog entry here184185197206206203. I do want to add that in the very first footnote of the decision the First Circuit explains some of the disabilities involved including: stage IV prostate cancer; compromised or suppressed immune system; cardiac problems; type II diabetes; Guillain-Barré syndrome; kidney disease; degenerative joint disease; asthma and other issues affecting lung capacity and function; and advanced age. At least one plaintiff lives in a communal facility that restricts residents from participating in events involving groups larger than 10 individuals, even when outside the community.

 

II

Court’s Reasoning

 

  1. Title II of the ADA at 42 U.S.C. §12132185186198207207204 provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, program, or activities of a public entity, or be subjected to discrimination by any such entity.
  2. 42 U.S.C. §12131186187199208208205(1)(A)-(B) defines a public entity as including any State or local government or any instrumentality of the State or States or local government.
  3. 42 U.S.C. §12202187188200209209206 says that Congress’s imposition of obligations on state governments under title II may even trump 11th amendment immunity. The court also cites to Tennessee v. Lane188189201210210207 as well.
  4. 504 Rehabilitation Act, 29 U.S.C. §794189190202211211208(a), provides that no otherwise qualified individual with a disability shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal funds.
  5. Under the Rehabilitation Act, 29 U.S.C. §794190191203212212209(b)(1)(A)-(B), the term program or activity includes all of the operations of an instrumentality of the State or of a local government and of each State or local government entity to which federal assistance is extended.
  6. 504 requires a public entity to make reasonable modification to existing practices to accommodate persons with disabilities.
  7. Under the Rehabilitation Act, States waive immunity by receiving funds from a federal program.
  8. A statute may express a congressional intent sufficient to override a common law doctrine without expressly mentioning the doctrine. The key question is whether the statute as a whole makes it evident that Congress understood its mandate to control.
  9. Congress expressly said at 42 U.S.C. §12131191192204213213210(1)(A) that the requirements of the ADA apply to any State… Government.
  10. Not surprisingly, the Speaker of the New Hampshire House did not make any argument that the New Hampshire House of Representatives is not part of the New Hampshire state government.
  11. The mandates of the Rehabilitation Act apply to a state government as well.
  12. A State waves immunity under the Rehabilitation Act when it decides to accept federal program funds. Here, New Hampshire’s legislature has received at least $190,000 in federal funds from the Coronavirus Aid, Relief, and Economic SecuritiesAct. Those funds were provided to the legislature in order to cover Covid-19 related expenses, such as off-site sessions, subscription for videoconferencing technology, IT equipment for remote work, and sanitation.
  13. It is not persuasive that the fact the ADA expressly abrogates 11th amendment immunity by name but fails to include a similar mention of legislative immunity, means that legislative immunity trumps everything. That is because sovereign immunity is a more obvious impediment expressly enshrined in the Constitution. So one can easily see why Congress might expressly mention it, while relying otherwise on the broad statement applying the statute to state governments to abrogate any other asserted bar, including legislative immunity.
  14. Under both the ADA and the Rehabilitation Act, the decision whether to require an accommodation must balance the benefits of the accommodation against the legitimate interests of the affected entity.
  15. It can be reasonably expected that a federal court would give considered weight to the views of the state legislature when considering the reasonableness of any proposed accommodation affecting the conduct of that legislature.
  16. On return of the case back to the District Court, the District Court will have to consider the following: whether plaintiffs are persons with disabilities within the meaning of the ADA or the Rehabilitation Act; whether the ADA or the Rehabilitation Act or both has been violated and if so, what remedy or remedies should be provided; and to what extent changing circumstances may moot the plaintiffs claims.

 

III

Thoughts/Takeaways

 

  1. It never made any sense to me how legislative immunity could trump the field the way the District Court held that it did.
  2. Undoubtedly, the District Court will find that the plaintiffs are persons with disabilities under the ADA and the Rehabilitation Act, especially with the amendments to the ADA.
  3. Legislative immunity is not a get out of jail free card when it comes to complying with the ADA or to Rehabilitation Act.
  4. Whenever dealing with claims of sovereign immunity by a state entity, Tennessee v. Lane313214211 is a must read.
  5. An abrogation of sovereign immunity is also an abrogation of legislative immunity.
  6. Accepting federal funds waives sovereign immunity under the Rehabilitation Act.
  7. The Rehabilitation Act goes further than the ADA when it comes to title II because under the Rehabilitation Act all of the operation of an instrumentality of the state or of a local government must be meaningfully accessible to persons with disabilities. On the other hand, the ADA will often take you into the issue of program accessibility.
  8. Interactive process is very important and there really wasn’t much of it here, if at all. Assuming an interactive process does occur, what a state legislature comes up with would be given considerable weight. Even so, you still have to happen interactive process. Accommodations will have to be made unless a fundamental alteration or an undue burden exists, which in this context both will be difficult to show.
  9. Effective communication rules were not discussed in the opinion.
  10. Can the same arguments be made with respect to judicial immunity when a court does not grant accommodation to a litigant or someone associated with a litigant? Even if not, an argument can be made that the granting or not granting of an accommodation is not a judicial act but a clerical one. It will be interesting to see if this particular ruling expands to situations where a court fails to accommodate a person with a disability.
  11. On remand, it will be interesting to see whether the different causation standard for the ADA and the Rehabilitation Act will be an issue. See also this blog entry192193205214215212.

I do want to mention that if any of my blog entries are helpful to you on either side of the aisle with respect to a case you have, feel free to include the blog entry in an appendix to your brief as I don’t mind at all.