I thought I would do a different kind of blog entry this week. Last week, I attended a zoominar (should I trademark “zoominar?”:-), on issues facing persons with disabilities in light of the Covid-19 pandemic. It was put on by Steve Gordon an Assistant Attorney General in the Eastern District of Virginia. I was very impressed how clued in he was to the disability community. He had lots of different elements of the disability community speaking. The blog entry today is divided into the following categories: issues noted on call; statistics; and thoughts/takeaways. I’m figuring that the reader is probably going to want to read the whole thing.

 

I

Issues Noted on Call (these are all issues that persons with disabilities are facing with the Covid-19 pandemic):

 

  1. Compliance with effective communication rules;
  2. Healthcare facilities not allowing people with disabilities to bring their support people with them;
  3. Accessibility of telehealth visits for those with vision impairments and the deaf, Deaf, and hard of hearing communities;
  4. Accessibility of distance learning;
  5. Accuracy of auto captioning and captioning in general;
  6. Masks
  7. Drive-up services;
  8. Inaccessibility of retail stores;
  9. Employers needing to adjust for employees who are at high risk or whom associate with high risk individuals;
  10. Healthcare rationing;
  11. Reasonable modifications where close contact is required for certain programs, services, and activities.
  12. Accessibility of higher education when education is remote in part or completely;
  13. Return to work issues;
  14. Accessibility of K-12 to persons with disabilities when education is remote in part or completely;
  15. Digital accessibility;
  16. Accessibility of Covid-19 briefings to Deaf* individuals and qualifications of interpreters;
  17. Excessive use of VRI (not a new problem);
  18. Telework as a reasonable accommodation.
  19. Return to school for persons with disabilities with underlying conditions (students or faculty).

 

*A culturally deaf individual is a person meeting the following criteria: 1) ASL is their first language; 2) attended a school for the deaf; and 3) is severely to profoundly hard of hearing. I myself have #3 but not the other two.

 

As you can see, accessibility issues are everywhere. Also, this list is by no means exclusive.

 

II

Statistics:

 

One of the publications that I subscribe to is Disability Compliance For Higher Education put out by Wiley periodicals. If you want to keep up with disability compliance in higher education, I highly recommend the publication. I was going through the back issues the other day, and I found a very interesting piece by Halley Sutton on a study that found people hide their disability at work. The study was conducted by the Center for Talent Innovation and published in the Harvard Business Review. In another issue, I found a discussion of a worldwide survey of people in doctorate programs. Here are some statistics mentioned in both of those articles:

 

  1. 30% of the workforce matches the ADA definition of a disability;
  2. Only 39% of those with a disability disclose that fact to an employer;
  3. Only 24% of those with a disability disclose their disability to their team;
  4. Only 21% of those with a disability disclose their disability to human resources;
  5. Only 4% of those with a disability disclose their disability to a client;
  6. Only 13% of employees surveyed with a disability said at least one of their disabilities was visible;
  7. 62% of respondents reported their disability was not visible;
  8. 26% reported that their disability could be either visible or invisible depending upon the circumstances;
  9. Employees with disabilities who disclosed to most people they interact with are twice as likely to feel content and happy at work as their peers who do not disclose their disabilities;
  10. Employees with disabilities who disclose their disability to those they work with regularly are less likely to feel nervous, anxious, or isolated at work than their peers with disabilities who do not disclose;
  11. Signals a person with a disability can use to help determine whether a workplace is a safe space to disclose their disability include: 1) look for signals of support. For example, is there transparency around workplace accommodation during orientation? (These words are taken directly from the article. I am not exactly sure what transparency around workplace accommodation during orientation means. Perhaps, it mean the signals you get during orientation with respect to the employer’s sensitivity to disability issues and to accommodating people with disabilities). Is disability listed as an aspect of diversity in the organization’s diversity statement?; 2) get to know your manager. Inclusive managers make sure everyone gets heard, offer actionable feedback, take advice, empower team members, and make it safe to propose ideas and share credit; 3) identify an ally. That is, if a manager does not seem inclusive look for other leaders in the company who are, or look for organizational advocacy and mentorship options; and 4) join or start an employee resource group;
  12. In a different study, the fifth annual survey of doctoral students across the globe by Nature Magazine, we find other statistics, including: 1) 36% of doctoral students around the globe report suffering from anxiety and depression caused by their doctorate studies and sought help for those conditions in the last year. A 300% increase from 2017; 2) 18% reported seeking help at their institution and did not feel supported in doing so; 3) nearly 10% reported that they tried to seek help for mental health concerns at their institution but such help was not readily available; 4) more than ¼ of students did report receiving adequate assistance at their institution for mental health concerns; 5) more students disagree then agree that the university or college offered adequate one to one mental health support; 6) and more than 40% of students did not feel their institution had adequate mental health resources specifically tailored to meet the needs of doctoral students;

 

III

My Thoughts/Takeaways

 

  1. As a deaf individual who gets 50% of his comprehension from lip reading, masks are a big deal. It works the other way to for those with underlying health conditions. The key is the interactive process.
  2. With everything moving online, effective communication becomes even more complicated. Nevertheless, the effective communication rules still have to be complied with.
  3. Just because faculty and students at schools are working from home does not mean their ADA related obligations end. Same goes for related laws, such as IDEA and §504 of the Rehabilitation Act.
  4. I just read an article today in the Atlanta Journal-Constitution about how one of the ways the State of Georgia is going to deal with budget cuts is to go all in on telework. It saves a tremendous amount of money poured into the physical plant normally. The article talks about how the State of Georgia had an epiphany when it found out that so much work could be done remotely and did not need to be in person. This has absolutely huge implications as to whether attendance is an essential function of the job. An absolute huge issue going forward will be the debate over whether attendance is a personal preference or an essential function of the job. Before the pandemic, most people would say attendance was an essential function of the job. Now, I am not so sure. As a result of the way the world has responded to the Covid-19 pandemic, a strong argument exists that attendance is a personal preference for many jobs and not an essential function at all. You may want to review this blog entry and place it in the current context of where we are with how we are dealing with the Covid-19 pandemic to figure out when a job might require attendance as an essential function. Perhaps, that is something I need to do as a separate blog entry.
  5. The DOJ as well as Health and Human Services have made it quite clear that they are not going to tolerate healthcare rationing. That is, healthcare services should be based upon an individual’s current condition and not based upon subjective notions of the patient’s quality of life.
  6. What is a fundamental alteration is a case-by-case determination.
  7. Digital accessibility is not a new issue but becomes more important now with the pandemic.
  8. Some of these issues are quite complicated with respect to ADA compliance. So, utilizing ADA knowledgeable individuals, including ADA knowledgeable counsel/consultants when necessary, is critical.
  9. With respect to the statistics I mentioned, if the statistics show anything, the number of people feeling comfortable disclosing their disability to employers is extremely low. Such few people disclosing their disability means that the culture of various employers is not sufficiently accepting of people with disabilities in the way they should be. This is something that employers need to change. There is a tremendous amount of press at the moment about making places of employment open places for those who are minorities. In doing that, don’t forget about people with disabilities as well.
  10. The problem with not disclosing a disability is that it gives an employer the right to go about their business as if the disability doesn’t exist. An employer cannot make reasonable accommodations if they don’t know about it. That said, employees are worried about keeping their jobs and not making their jobs miserable if they ask for reasonable accommodations. Clearly, from the statistics, there is a lot of work ahead for employers to make their employees with disabilities comfortable in disclosing.
  11. On the legal side, corporations may want to insist on their outside counsel staffing their cases with attorneys with disabilities as a condition of keeping their outside counsel status. I know Sidley and Austin for example has several clients that insist on disability considerations as part of contracting with them. I also agree that employee resource groups can be very helpful. Also, affinity bar groups can be very helpful. With respect to disability affinity bar groups, they are few and far between. One that is out there is the Deaf And Hard Of Hearing Bar Association, but to my knowledge little else exists. I know from first-hand experience that broad based disability organizations can be very difficult to pull off. I am also aware of big firms that have set up employee resource groups for people with disabilities, including but not limited to Sidley and Austin and Reed Smith.
  12. It doesn’t surprise me that only 4% of people with disabilities disclose their disability to a client. I happen to use it as a marketing tool. Also, I know other attorneys that successfully use their disability in the context of showing clients how they could overcome a disability. Clients can be impressed by that.
  13. Disclosure is an intensely personal call and depends on a myriad of individual factors as well as on the setting. That said, disclosing a disability can have very beneficial psychological effects. It also gives a person with a disability the ability to exercise their rights under the ADA/§504. In my practice, I have seen real problems arise when a person does not disclose early.
  14. One of the things that the LGBT human movement did was encouraging self-disclosure whenever possible. What they found is that the more people worked with people who were out, the more comfortable people became. Disability disclosure is much more complicated because there are all kinds of stigmas, stereotyping, as well as misinformation about what it costs to accommodate a disability. Nevertheless, the more people get used to dealing with people who are open about their disabilities, the more people will get used to it. A big game changer is going to be how we have responded to the Covid-19 pandemic. So many of the accommodations that people with disabilities have been asking for in the past are now given as a matter of course. People with disabilities are likely to remember that.
  15. Finding allies and mentorship for people with disabilities is a big issue. If my experience is any indication, this piece is not easy to figure out at all.
  16. Are we prepared for the coming mental health crisis? I don’t think so. It will make for very busy times for anyone specializing in ADA compliance.

Before moving on to today’s blog entry, I want to point out an excellent blog entry from my friend, colleague, and fellow blogger, Robin Shea. Last week, she blogged on the situation of what can happen when you have an incomprehensible drug policy that nobody understands that is not applied effectively. In short, it creates a big mess. Her blog entry is excellent and I don’t think I can add much to it, which is the reason I decided not to blog on it. The only thing I will say about the blog entry is to be sure that when you are trying to figure out whether a person can do the essential function of the job that you remember that under the ADA, the question is whether the person can do the essential functions of the job with or without reasonable accommodations. Her blog entry, which can be found here, is excellent and I commend everyone to its reading.

 

As I mentioned last week, one of the ways I find cases to blog on is from social media. In particular, I am very active on LinkedIn. This case comes to me courtesy of David Fram posting on LinkedIn. David is with the National Employment Law Institute and is a fountain of good information. Also, my friend, colleague, and fellow blogger, Eric Meyer, has an excellent blog entry on our case, here (more on that later). Our case comes from the Third Circuit and is Eshleman v. Patrick Industries, Inc. a published decision decided on May 29, 2020. The case asks the question just what does transitory and minor mean for purposes of the regarded as exception. That is, under 42 U.S.C. §12102(3)(B), a person with a condition that is both transitory and minor does not get to pursue a regarded as claim. Until this decision, there simply has not been a lot of case law at to what transitory and minor means. Beyond the regarded as situation, knowing what transitory and minor means is also helpful for trying to figure out if you have an actual disability that doesn’t last long. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning transitory and minor are two different concepts; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Between October 14, 2015 and December 14, 2015, plaintiff took medical leave to undergo surgery to remove a nodule from his left lung. He told his supervisor the nodule had to be removed and tested for cancer. After two months of medical leave, plaintiff returned to working at full capacity without restrictions. However, about six weeks later, plaintiff suffered a severe respiratory infection lasting from January 27, 2016 until January 31, 2016. His supervisor approved two vacation days during that time. With his physician’s approval, plaintiff returned to working at full capacity on February 1, 2016. At the end of his shift on his second day back, defendant fired him.

 

The superintendent where plaintiff worked told plaintiff he was terminated due to performance issues. However, plaintiff reminded the superintendent that his performance review from early January 2016 had been excellent, with all 4.5’s and one 5 out of a possible five in each category evaluated. Subsequently, the superintendent claimed that plaintiff was fired because he had not called out sick during his recent leave for upper respiratory infection. Later on, plaintiff was told yet a different reason, namely that his employer was claiming that he had been fired for behavioral issues.

 

At the District Court level, the District Court granted summary judgment to the employer because it concluded that plaintiff’s disability was transitory and minor and therefore excluded under the regarded as prong. Plaintiff appealed saying that the court forgot to realize that transitory and minor were two different concepts.

 

II

Court’s Reasoning Holding That Transitory and Minor Are Two Different Concepts

 

  1. To state a claim under the ADA, a plaintiff has to show: 1) he is a person with a disability under the ADA; 2) he is otherwise qualified to perform the essential functions of the job with or without reasonable accommodations by the employer; and 3) he has suffered an otherwise adverse employment decision as a result of discrimination.
  2. A plaintiff states a regarded as claim if he establishes that he has been subjected to an action prohibited by the ADA because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
  3. An employer regards a person as having a disability when it misinterprets information about an employee’s limitations and concludes that the employee is incapable of performing his or her job requirements.
  4. The reason the ADA includes regarded as claims is because being perceived as a person with a disability can prove just as disabling to a person as actually having a physical or mental impairment.
  5. The ADA limits regarded as claimed by excluding impairments that are transitory and minor.
  6. While the ADA defines “transitory” as an impairment with an actual or expected duration of six months or less, it doesn’t define minor.
  7. No one disputes that plaintiff pled sufficient facts to state a regarded as claim.
  8. ADA regulations at 29 C.F.R. §1630.15(f), clearly states that an employer must establish that a perceived impairment is objectively both transitory and minor. So, transitory is just one part of the two prong transitory and minor exception.
  9. The EEOC’s interpretive guidance says that transitory and minor requires a showing that the impairment is both transitory and minor, and clarifies that the six month time limit applies only to the transitory prong of the exception. In particular, the EEOC’s interpretive guidance gives an example of a person with a minor back injury lasting more than six months. The EEOC says in that example that while the injury is minor, the impairment is not transitory. So, the opposite of that must be true. That is, an impairment that is transitory because it lasts less than six months but is objectively non-minor also falls outside the transitory and minor exception.
  10. Looking at only impairments that are both transitory and minor is consistent with congressional intent to expand ADA coverage through the amendments to the ADA. As the House Judiciary Committee report on the amendments to the ADA explains, when including regarded as claims under the ADA Congress did not expect or intend this to be a difficult standard to meet. The report goes on to explain that the transitory and minor exception was intended only to weed out claims at the lowest end of the spectrum of severity, such as common ailments like the cold or the flu, and that the exception should be construed narrowly. Therefore, treating transitory and minor as separate and distinct elements is consistent with the ADA’s intent to afford broad coverage under the regarded as provision.
  11. In determining whether an impairment is minor, the district court should have considered such factors as the symptoms and severity of the impairment, the type of treatment required, the risks involved, whether any kind of surgical intervention is anticipated or necessary, and the nature and scope of any postoperative care. After all, a broken pinky finger treated with a splint is hardly comparable to removing a lung nodule by surgery. Since even minimally invasive lung surgery is still thoracic surgery, more than likely requiring inpatient care, it is plausible that the lung surgery was non-minor.
  12. Plaintiff alleges that the employer perceived his recent medical issue to signify an ongoing health condition. In particular, he alleges that it was the lung surgery combined with the severe respiratory infection, close in time ailments affecting the same system of the body, that led his employer to perceive him as a person with a disability.
  13. Plaintiff’s complaint contains plausible allegation that his employer regarded his series of recent medically related absences as signs of a continuing medical condition rendering him damaged goods and therefore unemployable.
  14. In a footnote, the court noted that expert testimony is not needed to appreciate that a very serious medical condition may require only a single surgical procedure.
  15. Cases cited by the employer are not persuasive because those cases fail to make distinct findings about whether the impairment is both transitory and minor. On the other hand, the Seventh Circuit in Silk v. Board of Trustees, Moraine Valley Community College specifically stated that the ADA defines transitory but left minor undefined. They then concluded that a particular disability, in that case a heart condition severe enough to require triple bypass surgery, could not be said to be both transitory and minor. So, the Seventh Circuit treated transitory and minor as separate and distinct inquiries with respect to the regarded as exception.

 

III

Thoughts/Takeaways

 

  1. The Seventh Circuit doesn’t have a great track record with respect to favoring persons with disabilities of late. However, there are two exceptions. First, the Seventh Circuit view is that for a person unable to perform the essential functions of their current job, the employer is under a mandatory obligation to reassign them to a vacant job that they are otherwise qualified to do. Second, when it comes to regarded as claims, the Seventh Circuit says that the physical or mental impairment must be both transitory and minor for the exception to apply.
  2. I really wish the amendments to the ADA stayed with the Rehabilitation Act term “otherwise qualified,” instead of the term it adopted, “qualified.” Instinctively, “qualified,” has more complexity in its meaning, unnecessarily so, then the concept, “otherwise qualified.”
  3. Until this case, we simply didn’t know what minor might mean for purposes of the transitory and minor exception. At a minimum, it means looking at: 1) the symptoms and severity of the impairment; 2) the type of treatment required; 3) the risk involved; 4) the kind of surgical intervention anticipated or necessary; and 5) the nature and scope of any postoperative care. Keep in mind, before listing these particular things to look at, the Third Circuit says, “the district court should have considered such factors as….” That means, these factors are not necessarily exclusive. So, you also want to use common sense when figuring out whether the physical or mental impairment is minor.
  4. My friend and colleague and fellow blogger, Eric Meyer, blogged on this case today as well, here. It is an excellent blog entry, and I commend it to your reading. He makes a couple of points that I completely agree with that bear noting here. First, actual disability isn’t the only thing going on with respect to how you can be a person with a disability. There are two other prongs. You could have a record of a disability regardless of whether you currently have it. You also, which is the subject of our blog entry today, could be regarded as having a disability. Second, I completely agree with Eric that Covid-19 is not minor. So, even if a person has recovered, a strong argument exist that the person has a record of a disability. Furthermore, many people who have Covid-19 recover but wind up with other conditions afterwards. Those conditions may be a disability as well. Third, I completely agree with Eric that if a person has Covid-19 you very well may have a duty to accommodate it as an actual disability.
  5. The EEOC has said that an actual disability could very well be something less than six months. I have said for some time that one way to figure out whether an actual disability is in play for something less than six months would be to borrow from the transitory and minor exception of the regarded as prong. There isn’t anything that says you should do that, but I do think it is good preventive law. So, now we have an idea of what is minor under the regarded as exception. Applying this case definition of minor to Covid-19 leads to the inescapable conclusion that Covid-19 may be transitory but it is certainly not minor. So, on the preventive law side, a person with Covid-19 probably has an actual disability. You also have to worry about the regarded as prong as we discussed here.
  6. Don’t forget about associational discrimination. While a person complaining of associational discrimination is not entitled to reasonable accommodations, they sort of are entitled to at least having an accommodation considered because courts are saying that a failure to engage in the interactive process with respect to association discrimination situations reflects on the employer’s intent to discriminate based upon the plaintiff’s association with a person with a disability. So, while there is no reasonable accommodation requirement with respect to accommodating someone who associates with the person with the disability, that is only as a matter of theory. In practice, failure to try and figure out how to get to a win-win my still come back to bite you.
  7. The transitory and minor exception is an objective standard. Prior to the amendments act, it was basically a subjective standard when it came figuring out whether an employer had perceived both a physical and mental impairment and a substantial limitation on a major life activity. The amendments changed all of that. Also, this case says that the objective standard doesn’t always require expert testimony either. Sometimes it is just obvious that a physical or mental impairment is not minor.
  8. Employers should not expect the transitory and minor exception to be something that is used successfully in the run of cases in light of the language in the case talking about how the exception was meant to only weed out claims at the lowest end of the spectrum.
  9. Employers who change their termination reason over time never look good.
  10. Title I causation is “on the basis of” not “because of,” as we have discussed many times previously. Yet, many courts fail to make that distinction.
  11. An underlying issue in all of this is whether attendance is an essential function of the job, such as we discussed here. What Covid-19 has done is create a real issue of whether attendance is a personal preference or an essential function. After all, Twitter’s CEO said this week that any of his employees from now on can work from home if they so desire. Facebook wants to move to 50% remote workers over time. I expect other companies to follow suit for a whole host of reasons.
  12. The decision is published and precedent-setting. I fully expect the decision to be cited frequently by other courts.

One may wonder how I go about deciding what cases to blog on from week to week. Well, I look in a variety of places: fellow legal bloggers; a Google alert set to the ADA; LinkedIn, Lexblog, and law 360. I subscribe to Law 360 and it is worth every penny. I am able to get a variety of cases and documents without having to use the convoluted pacer system. Many of the documents are free because I am a paid subscriber. Very importantly, Law 360 has an army of legal journalists looking for legal cases in their area. Law 360 enables me to subscribe to certain topical areas where I can get the latest news. Today’s case comes from an ADA search I did today on Law 360. An absolutely big issue is people wearing facemasks in public. Unfortunately, it is becoming a political thing and it shouldn’t be. Even so, there are real legal issues associated with it. The facemasks are an issue in two different ways. First, you may have a person with respiratory problems or some other disability that makes him or her unable to wear facemasks. There is a reverse side to that, which I fall into. That is, many in the small deaf and HOH community, to a lesser extent the Deaf community, rely on lipreading for comprehension. I get 50% of my comprehension from lipreading. The facemasks requirements have made it quite an adventure for me going out into the public world when I have to go inside. So, I keep pretty much to the car and outside. I don’t mind wearing a facemask myself for short periods of time. However, my ability to understand others goes way down when they have a mask on. In addition to not being able to lipread, wearing a mask also reduces the volume of the voice. So, it’s a real nightmare.

 

It was only a matter of time before someone filed a lawsuit saying that a place of public accommodation discriminates against a person with a disability in violation of title III of the ADA with a mandatory facemask policy. We now have such a case. The case is Pletcher v. Giant Eagle, Inc., filed in the Western District of Pennsylvania on May 26, 2020. So, what I thought I would do is list the key allegations in the complaint in one section of the blog entry. Then, in a separate section of the blog entry I would talk about my thoughts on the complaint including its various allegations. So, the categories for this blog entry are the complaint itself and my thoughts/takeaways on the complaint. Keep in mind, for purposes of this blog entry we are taking the allegations in the complaint as true. Of course, that may not be the case subject to further discovery. Also, my paragraphs listing the key allegations in the complaint will not match up with the paragraphs of the actual complaint. Finally, at times I am paraphrasing but the substance of the allegations is exactly the same.

 

I

Key Allegations of The Complaint

 

  1. Plaintiff has a health condition that substantially impacts her major life activity of breathing and her respiratory system. She cannot wear a mask over her mouth and nose without significant difficulty breathing.
  2. On April 15, 2020, Pennsylvania Gov. Tom Wolfe issued a press release announcing that Dr. Rachel Levine under his authority, signed an order directing protection for critical workers at businesses authorized to maintain in person operations during the Covid-19 disaster emergency.
  3. The order issued by Dr. Levine effective April 19, 2020, provided that businesses covered by the order should (“should,” is the word that appears in the complaint): require all customers to wear masks while on the premises, and deny entry to individuals not wearing masks, unless the business is providing medication, medical supplies, or food, in which case the business must provide alternative methods of pickup or delivery of such goods; HOWEVER, INDIVIDUALS WHO CANNOT WEAR A MASK DUE TO A MEDICAL CONDITION (INCLUDING CHILDREN UNDER THE AGE OF TWO YEARS FOR CDC GUIDANCE) MAY ENTER THE PREMISES AND ARE NOT REQUIRED TO PROVIDE DOCUMENTATION OF SUCH MEDICAL CONDITION (the uppercase and bold font appears in the complaint itself).
  4. Giant Eagle implemented policies and procedures requiring all customers to wear masks even if they are a person with a disability and cannot wear a mask due to their medical conditions.
  5. CDC recommendations state that “cloth face covering should not be placed on young children under the age of two, anyone who has trouble breathing, or is unconscious, incapacitated, or otherwise unable to remove the mask without assistance.” (Bold is in the complaint). The CDC also directs individual to make sure when using a face covering that, “you do not have any difficulty breathing while wearing the cloth face covering.”
  6. Giant Eagle’s policies and procedures make no accommodation for invitees wishing to shop in the stores who have disabilities that prohibit wearing a mask or make wearing a mask dangerous to the invitees. In particular the policy says: “moving forward until further notice in order to shop our store (or any other Giant Eagle location) you must be wearing a mask. There will be no exceptions regardless of any reason or medical condition (bold in complaint). We thank you for your compliance and understanding.”
  7. The owner of one Giant Eagle store posted publicly that the entire company had decided not to comply with the accommodation lifted in Dr. Levine’s order because, “It’s too easy to make up an excuse not to wear mask (bold in complaint), and we refused to put our team members and customers who were masks get any more risk than they already are. Health and safety of our community is more important to us than business.” However, Giant Eagle does not require its team members to wear masks if they provide medical excuses (words in italics actually appear in the complaint but the emphasis is mine).
  8. Security guards outside of one Giant Eagle location have told customers who were told that they must wear a mask despite a disability prohibiting the wearing of a mask, that Giant Eagle is a private company not required to comply with the ADA.
  9. Giant Eagle employees and security guards have verbally harassed and physically threatened guests with removal and arrest for trespass. Giant Eagle’s employees and agents have called the police and pressed charges of trespass against guests with disabilities who cannot comply with its illegal mask policy.
  10. Giant Eagle justifies its policies and procedures by claiming excluding such individual from its stores because they cannot wear a mask for medical reasons due to a disability is okay because they still have the option of staying out of the store and having a Giant Eagle team member shop for them or use curbside pickup and delivery services. In essence, Giant Eagle is treating its guests who cannot wear a mask due to a disability like “lepers,” rather than “guests.”
  11. Giant Eagle has gone so far as to call local police departments and have guests who have refused to wear mask because of a disability arrested or threatened with arrest for trespassing on Giant Eagle property.
  12. On April 19, 2020, plaintiff entered Giant Eagle’s Elizabeth location without wearing a mask. A Giant Eagle employee told plaintiff she had to wear mask otherwise the Giant Eagle employee could not wait on her. Plaintiff responded by telling the employee that she has a medical condition preventing her from being able to wear masks. Giant Eagle’s employee told plaintiff she had to put on a mask or she had to leave the premises. At that point, another Giant Eagle employee told the plaintiff that the law is that she had to wear a mask. Because the plaintiff could not comply with Giant Eagle’s illegal demands, she left the premises without making a purchase.
  13. Under the terms of the ADA, discrimination includes a failure to provide services to a person with a disability to the extent that such services are provided to persons without disabilities. The ADA requires that goods, services, facilities, privileges, advantages, and accommodations be afforded to an individual with a disability in the most integrated setting appropriate to the needs of the individual.
  14. Title III of the ADA also requires that no person shall be discriminated against on the basis of a disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any public accommodation.
  15. Plaintiff is a qualified individual with a disability within the meaning of the ADA because plaintiff has a physical mental impairment substantially limiting one or more of plaintiff’s major life activities and systems, i.e. she has asthma and a panic disorder affecting her breathing and her respiratory and nervous systems.
  16. Giant Eagle has stated publicly that it does not intend to change its mask policy and that its “guests,” who cannot wear masks might use some alternative other than shopping inside the stores without a mask. That means, Giant Eagle neither has any intent of complying with the legal requirements of the ADA nor of training its employees of their need to comply with the ADA.
  17. Plaintiff did not pose a direct threat to the health or safety of others. There was no significant risk to the health or safety of others that could not be eliminated by a modification of Giant Eagle’s policies, practices and procedures. Social distancing and other safety precautions were in place at the store, plaintiff had no signs or symptoms of Covid-19, and the Pennsylvania Health Secretary’s order and CDC guideline recognized the need for a medical exception to the mask requirement. Also, Giant Eagle made no individual assessment that consider plaintiff’s actual abilities or disabilities. Instead, Giant Eagle adopted a broad discriminatory policy based on generalizations and stereotypes.
  18. Plaintiff requests injunctive relief requiring Giant Eagle to accommodate plaintiff by allowing her to shop in the stores without wearing a mask so that she may enjoy the benefits, privileges, goods, services, facilities, advantages, and accommodations including equal access to and enjoyment of Giant Eagle’s doors in the future.

 

II

Thoughts/Takeaways

 

For purposes of this section, I am assuming that all allegations are true.

 

  1. Plaintiff’s respiratory condition is most probably a disability under the ADA. It is very difficult, though not impossible, for something to not be a disability anymore after the amendments to the ADA.
  2. B6 of Dr. Levine’s order, here, is not phrased in an optional way. That is, the complaint said that the order demands that businesses, “should.” That makes it seem like the order was phrased in an optional way. Many states around the country are phrasing such orders in an optional way. However, a close look at the order reveals that the order is not phrased in an optional way. Businesses in Pennsylvania are expected to do it Dr. Levine’s way. Interesting, that the complaint seemed to suggest that the order is a recommendation and not mandatory.
  3. Since the order is mandatory and has been given the blessing of the governor, the question then becomes whether the governor and Dr. Levine have exceeded their authority in issuing the order. States have the obligation to protect the welfare of its citizenry. Hard to believe that the authority has been exceeded.
  4. Since the order is mandatory, businesses must follow those orders unless federal law conflicts.
  5. CDC recommendations make clear that certain individuals should not wear masks.
  6. Blanket policies (Giant Eagle’s policies that there will be no exceptions regardless of any reason for medical condition) are always very risky under the ADA.
  7. One problem for Giant Eagle is apparently it does not require their team members to wear masks if they provide medical excuses but yet they do not give that option to their customers.
  8. Giant Eagle is a place of public accommodation under 42 U.S.C. §12181(7)(E). The statements of its employees are simply wrong.
  9. The verbal harassment and physical threatening of a person with a disability creates an issue of hostile environment. While hostile environment is commonly seen in title I cases, I haven’t yet seen it in title III cases.
  10. 42 U.S.C. §12182(b)(1)(A)(ii)- participation in unequal benefit, states: “it shall be discriminatory to afford an individual or class of individuals, on the basis of adisabilityor disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals,” would seem to be a far better fit for the complaint than the integration mandate cited in the complaint. The integration section of 42 U.S.C. §121812(b)(1)(B) talks about the most integrated setting “appropriate to the individual.” “Appropriate to the individual,” language can get complicated in this situation.
  11. We have talked about the obligations of police with respect to the ADA numerous times before and the need for law enforcement training. They also need ADA training across the entire range of the ADA because they may get called into situation dealing with any of the titles. I am not sure this is happening. Of course, one problem is where is the money going to come from in light of Covid-19’s impact on state budgets. Even so, law enforcement does need to know their ADA obligations.
  12. The complaint makes the statement that plaintiff is a qualified individual with a disability. That is strange because whether an individual is a qualified individual with a disability is not a concept found in title III of the ADA. It is also strange because even assuming “qualified,” is a part of title III, which it is not, there isn’t any allegations in the complaint that the plaintiff meets the essential eligibility requirements to shop at the store (if you think about it, that is probably a reason why you do not see “qualify,” in title III because in most situations it isn’t an issue). All that said, you often still have to go through a qualified analysis in order to figure out if there is a fundamental alteration or an undue burden. However, going through a qualified analysis is not the same thing as “qualified,” actually appearing in title III.
  13. The plaintiff showed up to shop and was turned away. So, I don’t expect standing to be an issue. Also, the complaint contains intent to return language.
  14. Under title II’s final regulations, here, and title III’s final regulations of the ADA, direct threat is only a question of whether an individual poses a direct threat to the health or safety of others. The fact that the DOJ regulation do not talk about direct threat to self is a huge issue here. Absolutely true that the plaintiff might be a direct threat to herself. However, the title III regulation, 36 C.F.R. §36.208, here, is quite explicit that the consideration is a direct threat to others. Direct threat to self unlike the EEOC regulation, 29 C.F.R. §1630.2(r) here, is not listed as a consideration in the final DOJ title III regulations. Accordingly, this makes for a difficult argument for the defense to claim that the ADA somehow conflicts with Dr. Levine’s order.
  15. The ADA does require an individualized analysis across the board.
  16. Two other allegations could have been made in the complaint and were not. 42 U.S.C. §12182(b)(1)D) says that a title III entity cannot adopt administrative methods that have the effect of discriminating on the basis of disability. 42 U.S.C. §12182(b)(2)(A)(i) prohibits a title III entity from, “the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disabilityor any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered.” Both of these sections would seem applicable to the facts alleged in the complaint.
  17. I expect to see many more of these cases in the future. I also expect to see cases demanding accommodations for those who are lip readers struggling to navigate a facemask world.
  18. One way to prevent all of this is to make sure you engage in the interactive process and that you execute the do’s and don’ts of the interactive process we discussed previously.

Before getting started on the blog entry of the day, I did a webinar the other day for the Georgia Lawyers for the Arts on Internet accessibility and on effective communications. We also talked about other matters as well. It was the first time I did a webinar using the zoom platform. I found it worked well so long as I had the ability to dial in and use my Bluetooth so the sound could go directly to my hearing aids. One of the questions that came up was this: employer of less than 15 employees; in a state with no disability discrimination laws; and took the funds from the government to keep their business afloat. Does that company despite having less than 15 employees now have to worry about disability discrimination in employment? The answer I gave was yes because 29 U.S.C. §794, §504 of the Rehabilitation Act, applies to any entity receiving federal financial assistance. If same facts but state disability discrimination laws exist, then the company has to worry about §504 and possibly state disability discrimination laws as well.

 

I have promised a couple of times and have never followed up on it to blog on the case of Schmitz v. Alamance Burlington Board of Education a decision from February out of the Middle District of North Carolina. It does a great job of discussing associational discrimination. It also sets up a potential circuit court split with respect to the paradigm for evaluating these claims. As usual, the blog entry is divided into categories and they are: Key facts; court’s reasoning association discrimination generally; court’s reasoning adverse action/constructive discharge; court’s reasoning qualified; court’s reasoning reasonable inference of unlawful discrimination; court’s reasoning retaliation; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Key Facts (Taken Directly from Opinion):

 

Theresa Schmitz (“Plaintiff”) is a resident of Wake County, North Carolina. (Compl. (Doc. 5) ¶ 3.) The Alamance-Burlington Board of Education (“Defendant”) is a corporate body solely based and operating in Alamance County, North Carolina. (Id. ¶ 4.)

 

Defendant hired Plaintiff in late October 2016 to teach fourth grade at an elementary school in Snow Camp, North Carolina. (Id. ¶ 6.) Plaintiff alleges that she performed satisfactorily throughout her first months, receiving positive feedback. (Id. ¶ 7.) In November 2016, her son was diagnosed with a brain tumor and required emergency surgery. (Id. ¶ 8.) Plaintiff alleges she returned to work on November 29, 2016, after her son’s surgery on November 23. (Id.) Plaintiff’s son was diagnosed with neurofibromatosis Type 1 (“NF1”), a disease also known as von Recklinghausen’s Disease. (Id. ¶ 9.) NF1 is a rare genetic disorder that causes tumors and growths in certain parts of the body; it negatively affected Plaintiff’s son’s ability to see, think, and learn. (Id.) Plaintiff’s son was unable to walk or care for himself following surgery. (Id.) Plaintiff’s son requires regular screenings and chemotherapy as a result of the disease. (Id.)

 

After returning to work on November 29, Plaintiff asked her Principal, Mark Gould, for permission to leave work at 2:30 p.m. each day to care for her son. (Id. ¶ 11.) Though classes ended at 2:30 p.m., teachers were expected to stay until 3:15 p.m. each day. (Id.) Principal Gould allowed Plaintiff to leave at 2:30 p.m. for one week, from November 29 until December 5. (Id.)

 

On or about December 5, Plaintiff took her son to the doctor to have his stitches removed; at that appointment, the doctor informed Plaintiff that her son would not be able to return to school for several weeks. (Id. ¶ 12.) Plaintiff emailed Principal Gould following that meeting, explaining the situation and asking for permission to leave at 2:30 p.m. for another week. (Id. ¶ 13.) Principal Gould responded that he could not talk about it at that moment because he was busy, but that he would discuss it with Plaintiff the next day. (Id.) Plaintiff never heard from Principal Gould, but she still left 2:30 p.m. the next day, December 6. (Id. ¶ 14.) Later that day, Principal Gould emailed Plaintiff to ask why she had not been at bus duty at 2:30 p.m. that day. (Id.) “Plaintiff replied that she had explained her situation with her son and thought it was okay to leave at 2:30 p.m. When she received no response back, she became very concerned.” (Id.) Plaintiff told Principal Gould that she would not be at work on December 7. (Id.)

On December 7, Plaintiff contacted Defendant’s human resources (“HR”) department to explain the situation with her son and to express concern that Principal Gould was “bullying her and retaliating against her for caring for her disabled son.” (Id. ¶ 15.) The HR department responded that day and told Plaintiff she was not permitted to leave at 2:30 p.m., but instead would have to take leave in half-day increments. (Id. ¶ 16.) Plaintiff alleges she asked HR why she could not work until 2:30 and have her pay prorated for the final forty-five minutes of the day, but she received no response. (Id.)

Plaintiff alleges that she was treated differently in this regard, because “other employees not associated with a disabled family member were regularly permitted to take sick leave in less-than-half-day increments on temporary bases.” (Id. ¶ 30.)[1] Still, Plaintiff complied with HR’s instruction and took leave in half-day increments from December 5 until December 16. (Id. ¶ 16.) After December 16, 2016, Plaintiff alleges she did not request, nor did she take any other time off to care for her son. (Id.)

Plaintiff alleges that Principal Gould began a course of retaliation against her starting in mid-December 2016 and carrying into February 2017. (Id. ¶ 17.) This alleged retaliation, which Plaintiff characterizes as “nitpicking,” allegedly resulted in Plaintiff being held to a higher standard than other teachers. (Id. ¶ 18.) Plaintiff was placed on a performance improvement plan (“PIP”) on or about March 14, 2017. (Id. ¶ 20.) Plaintiff alleges this PIP entailed a lot of busy work, was based on misstated facts about her performance, and was another example of how she was held to a higher standard than other teachers. (Id. ¶¶ 20-21.)

Despite those positive developments, on May 12, 2017, Plaintiff was called into a meeting with Principal Gould and HR. (Id. ¶ 23.) Waiting for her in the meeting was a pre-drafted letter of resignation for her to sign, effective at the end of the school year. (Id.) Plaintiff was told to sign the letter, or she would be “put on a list she did not want to be on.” (Id.) Plaintiff alleges this list was “presumably a list of terminated employees or employees who were not eligible for hire” within North Carolina’s school systems. (Id.) Plaintiff was told she had to sign and “turn in” the letter. (Id.) Plaintiff does not expressly allege that she signed the letter, but she does allege that she was “forced to resign,” (id. ¶ 30), and that she was “constructively terminated,” (id. ¶ 24).

Plaintiff alleges she was retaliated against in the form of changes to her schedule and responsibilities, being placed on a PIP, being forced to resign, and other, smaller acts. (Id. ¶ 30.)

Plaintiff sued for association discrimination, retaliation, and violation of North Carolina law. The court winds up dismissing the North Carolina law claim but that does not concern us here.

II

Court’s Reasoning Association Discrimination Generally

 

  1. A prima facie case for an associational discrimination means showing: (1) she was associated with an individual with a disability as defined by the ADA and that her employer had knowledge of that association; (2) she suffered an adverse employment action; (3) at the time of such action, she was performing her job at a level that met her employer’s legitimate expectations; and (4) the adverse employment action occurred under circumstances raising a reasonable inference of unlawful discrimination.
  2. Pleadings are subject to Iqbal/Twombly. That said, plaintiff only has to plead facts that permit the court to reasonably infer that each element of the prima facie case is satisfied.
  3. McDonnell Douglas burden shifting applies to associational discrimination and retaliation claims.
  4. Association discrimination is, “because of.”
  5. The reason for the association provision being added to the ADA was to protect qualified individuals from adverse job actions based on unfounded stereotypes and assumptions arising from the employee’s relationship with particular persons with disabilities.
  6. With respect to employment, associational discrimination per 42 U.S.C. §12112(b)(4) means excluding or otherwise deny equal jobs or benefits to a qualified individual because of their association with a disabled person.
  7. In a footnote, the court says that plaintiffs alleging associational discrimination claims need not fit their claim into one of Judge Posner’s categories, which we discussed in this blog entry.

 

III

Court’s Reasoning Adverse Action/Constructive Discharge

 

  1. Adverse employment actions under the ADA use the same framework as title VII.
  2. Constructive discharge is viable where either the employee’s resignation was obtained by the employer’s misrepresentation or deception or where the employee’s resignation was forced by the employer’s duress or coercion.
  3. With respect to duress/coercion, it is a totality of circumstances test.
  4. When assessing the voluntariness of a resignation, factors to look at include: 1) whether the employee was given some alternative to resignation; 2) whether the employee understood the nature of the choice he or she was given; 3) whether the employee was given a reasonable time and when to choose to resign; and 4) whether the employee was permitted to select the effective date of resignation.
  5. If an employee can show that the employer knew that the reason for the threatened removal could not be substantiated, the threatened action by the employer is purely coercive.
  6. While plaintiff failed to plausibly allege that she did not have an option other than resignation, she did plausibly allege facts allowing the court to reasonably infer the employer lacked a good faith basis for threatening her with termination in the first place. For example, she successfully completed her performance improvement plan and had received a positive performance review from the principal.
  7. Plaintiff’s complaint permits a reasonable inference that the suggestion of a list that she would be put on if she did not resign was a threat of some undesirable consequences.
  8. While plaintiff was given sufficient time to consider her resignation, she did allege facts showing that her resignation date was predetermined, which is a strong indicator of the lack of voluntariness.
  9. The court was persuaded by the contrast between plaintiff’s allegations about her successful performance at the end of the school year and the allegedly abrupt way she was forced to resign. So, the totality of circumstances test combined with the facts alleged are sufficient to get by a motion to dismiss.

 

 

IV

Court’s Reasoning Qualified

 

  1. To be protected under the ADA, a person with a disability must also be qualified.
  2. Plaintiff brought forward enough facts showing she was meeting defendant’s expectations. In particular: 1) plaintiff was a teacher and did miss class time to care for her son, but those instances allegedly ceased in December 2016, and it appeared the absences were approved leave; 2) between the time of absenteeism and when she was shown her pre-drafted resignation, plaintiff alleges she was performing satisfactorily. Those allegations are supported by the performance report written by the principal at some point during April 2017, which did not indicate any deficiencies nor did it indicate that she was not qualified to do the job.

 

V

Court’s Reasoning Reasonable Inference of Unlawful Discrimination

 

  1. Plaintiff has to show that it is more likely than not that the employer took the adverse action because of her association with an individual with a disability.
  2. “Because of,” language associated with association discrimination and retaliation in the statute means causation is, “but for.”
  3. Where a plaintiff is performing her job satisfactorily and her only issues with her employer revolve around her association with the person with a disability, then that raises an inference of discriminatory motivation.
  4. Plaintiff alleged discriminatory intent sufficient to get by a motion to dismiss in numerous ways: 1) she was performing her job well in October and November of 2016; 2) defendant’s only alleged displeasure with the plaintiff involved her time off to care for her son with a disability in late 2016 early 2017; 3) after December 2016, defendant allegedly began to treat plaintiff differently; and 4) after those incidents involving her son with a disability, plaintiff was again performing her job well. Accordingly, plaintiff alleged sufficient facts to show that her association with her son was more likely than not the motivating factor for defendant’s actions.
  5. Even though there was some period of time between the defendant’s notice of plaintiff’s association with her son with a disability and her termination, a period of six months, the totality of the circumstances is such that there still exist the necessary minimal inference of discriminatory intent (the court noted that the Seventh Circuit has found five months to not be too long of a gap).
  6. A period of time that is otherwise long does not negate causation if the adverse action comes at the first opportunity to retaliate.
  7. If a period of time between notice about an association with the person with the disability and the discriminatory act is filled with other acts illustrating discriminatory animus, then causation can still be established. Particularly noteworthy, is that the defendant knew plaintiff was associating with a family member with a persistent condition requiring more care and that the defendant was also aware of the chronic nature of plaintiff’s son’s disease. Plaintiff also alleged evidence of discriminatory intent between the time defendant became aware of plaintiff’s association and her forced resignation. Those actions included: 1) holding plaintiff to a higher standard than other teachers; 2) reprimanding her for allegedly routine matters; and 3) placing her on a performance improvement plan starting in mid-March.
  8. While the ADA does not require an employer to provide a reasonable accommodation to the nondisabled associate of a person with disability, an employer’s reaction to such a request for accommodation can support an inference that a subsequent adverse employment action was motivated by associational discrimination.

 

VI

Court’s Reasoning Retaliation

 

  1. Proving up a retaliation claim means showing: 1) plaintiff engaged in protected conduct; 2) plaintiff suffered an adverse action; and 3) a causal link exists between the protected conduct and the adverse action.
  2. Plaintiff need not show that the conduct being opposed was actually an ADA violation. Instead, plaintiff must show a good faith belief the conduct violated the ADA. That good faith belief has to be objectively reasonable.
  3. A reasonable and good faith belief is only required for opposition activity. If a person is involved in the EEOC process and retaliation occurs, a reasonable and good faith belief showing is not necessary.
  4. The law is crystal clear that a person alleging associational discrimination is not entitled to reasonable accommodations. Accordingly, it is not reasonable to assume that a plaintiff had a good faith belief that such a request was protected under the ADA. Accordingly, dismissal of the retaliation claim is warranted.

 

VII

Thoughts/Takeaways

 

  1. Iqbal/Twombly means giving the defendant enough facts so that it is clear as to what is being alleged and what the claims are. Depending upon the jurisdiction, judges may allow a degree of notice pleadings, but it is very specific to the individual judge. So, on the plaintiff side, more facts are better than less.
  2. It’s interesting that even though causation for retaliation and associational discrimination claims is “but for,” McDonnell Douglas is still in play.
  3. The court’s footnote talking about how associational discrimination claim do not have to fit into one of the boxes we discussed in this blog entry sets up a potential circuit court split.
  4. Duress and coercion when it comes to figuring out constructive discharge is a totality of the circumstances test.
  5. Just because there is a length of time between notice about an individual’s association with a person with a disability and the ultimate discriminatory act, that is not the end of the matter where other acts illustrating discriminatory intent exists.
  6. Objective reasonableness when it comes to retaliation does mean not being ignorant of the law. In other words, it makes perfect sense to me that a person would think it is perfectly reasonable and within the ADA to request accommodations because they are associating with a person with disability. However, the law is quite clear that is not the situation. Accordingly, regardless of a plaintiff believing that, that belief does not hold up for retaliation claim. All this said, many courts are holding a failure to accommodate a person’s request for a reasonable accommodation to deal with their association with the person with a disability can be evidence of discriminatory intent. So, in this situation, the interactive process or lack thereof is critical.
  7. “Disabled,” v. “person with a disability.” The medical community, many courts, and some disability rights activists use the term, “disabled.” However, a significant group of people in the disability rights arena, and it does not depend upon age, prefer people first language, i.e. “person with a disability.” Since it is an individual preference, when speaking generally always start with people first language and then switch over to identity first, “disabled,” if the person with a disability prefers it that way.

One thing I have noticed with the pandemic is that legal bloggers have shifted what issues they are talking about to anything related to Covid-19. That said, there are other issues besides Covid-19 going on. For example, service animals and emotional support animals in housing. I am aware of reports from those in university towns where off campus complexes catering to students are faced with a significant number of tenants in the complex claiming their animal is an emotional support animal. What is such a landlord to do? As already mentioned here, the latest circular from the Department of Housing and Urban Development is a big mess. States are coming up with their own ideas in this area as well. For example, Illinois enacted the Assistance Animal Integrity Act, effective January 1 of 2020. The timing of the bill’s enactment is such that it would have been signed by the Illinois governor before Housing and Urban Development came out with its latest circular. I am licensed in Georgia, Illinois, and Texas. Accordingly, I do have the ability to parse Illinois law. I thought it would be useful to do that here because it shows one approach a State is taking to deal with emotional support animals in housing. I will also add some more thoughts of my own, particularly with respect to how such state laws interact with the latest circular. As usual, the blog entry is divided into categories and they are: the Illinois Assistance Animal Integrity Act explained; and thoughts/takeaways on the Illinois Assistance Animal Integrity Act. The reader is free to look at either of the categories or both.

 

I

The Illinois Assistance Animal Integrity Act Explained:

 

  1. Assistance animal is defined as an emotional support or service animal qualifying as a reasonable accommodation under the federal Fair Housing Act or the Illinois Human Rights Act.
  2. Disability is defined as a person with any physical or mental impairment or record of such impairment satisfying the definition of handicap under the Fair Housing Act or the definition of disability under the Illinois Human Rights Act.
  3. Housing provider means any owner, housing provider, property management company, property manager, government entity, condominium board, condominium association,, cooperative, or related entity, and any of its agents or employees, engaged in the selling, leasing, management, control, or governance of residential housing.
  4. Reasonable accommodation has the meaning provided under the federal Fair Housing Act or the Illinois Human Rights Act
  5. Therapeutic relationship refers to the provision of medical care, program care or personal care services made in good faith for and with actual knowledge of an individual’s disability and that individual’s disability related need for an assistance animal by: 1) a physician or other medical professional; 2) a mental health service provider; or 3) a nonmedical service agency or reliable third-party in a position to know about the individual’s disability.
  6. “Therapeutic relationship does not include an entity that issues a certificate, license, or similar document that purport to confirm, without conducting a meaningful assessment of a person’s disability or a person’s disability related need for an assistance animal, that a person: (a) has a disability; or (b) needs an assistance animal.”
  7. A housing provider may require a person to produce reliable documentation of the disability and disability related need for the animal only if the disability or disability related need is not readily apparent or known to the housing provider.
  8. Housing providers may ask a person to make the request on a standardized form, but it cannot deny the request if the person did not use the form to submit documentation otherwise meeting the requirements of the Act.
  9. If a housing provider received a request for more than one assistance animal, it may request documentation establishing the disability related need for each animal unless the need for an animal is apparent.
  10. Any documentation that a person has a disability and requires the use of an assistance animal as a reasonable accommodation in housing under the federal Fair Housing Act or the Illinois Human Rights Act shall: 1) be in writing; 2) be made by a person with whom the person requesting accommodation has a therapeutic relationship; and 3) describe the individual’s disability related need for the assistance animal.
  11. A housing provider can deny a documented request for an accommodation or rescind a granted request if: 1) the accommodation imposes either: i) an undue financial and administrative burden; or ii) a fundamental alteration to the nature of the operations of the housing provider; or 2) after conducting an individualized assessment, there is reliable objective evidence that the specific assistance animal: i) poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation; ii) causes substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation; or iii) has engaged in a pattern of uncontrolled behavior that its handler has not taken effective action to correct.
  12. If the initial documentation provided by the person requesting accommodations does not satisfy ¶ 10 above, the housing provider may require additional supporting documentation. If the initial documentation is not sufficient to show the existence of the therapeutic relationship as defined in the Act, the housing provider may request additional information describing the professional relationship between the person and the individual with the disability.
  13. A housing provider cannot deny an assistance animal solely due to the disability related needs of another resident. Instead, it has to attempt to balance the disability related needs of all residents.
  14. If a housing provider bills for damages caused by pets, they can do the same for animals protected by the Assistance Animal Integrity Act. That said, pet related deposits, pet fees, or related pet assessments are out. Also out, is demanding that a resident within the assistance animal procure special liability insurance coverage for the assistance animal.
  15. The Act cannot be construed as requiring documentation of a specific diagnosis regarding the disability or disability-related need.
  16. The housing provider does have the ability to verify the authenticity of any documentation submitted.
  17. If an assistance animal causes injuries to an individual, the landlord is not liable for that.

 

II

 

Thoughts/Takeaways on the Illinois Assistance Animal Integrity Act

 

  1. The Illinois Assistance Animal Integrity Act defines an assistance animal as an emotional support or service animal qualifying as a reasonable accommodation under the federal Fair Housing Act or the Illinois Human Rights Act. But what does that mean? As we have discussed previously, the only place assistance animals are defined with respect to fair housing is in circulars. With respect to the Illinois Human Rights Act, you do see a mention there in the definition of disability of guide dogs, hearing dogs or support dogs. I didn’t see any definition in the Illinois Administrative Code, after doing a quick search, with respect to what those terms mean, but that doesn’t mean it doesn’t exist.
  2. The Illinois Assistance Animal Integrity Act says disability under the Act means the same thing as handicap under the Fair Housing Act. Here is the thing. My colleague Richard Hunt has written several times in his blog, which is in my blogroll and can be found here, that handicap under the Fair Housing Act does not necessarily mean at all what it means under the ADA because the Fair Housing Act was not amended when the ADA was. So, despite the definition of handicap under the Fair Housing Act strongly resembling the definition of disability under the ADA, a reasonable argument exist that handicap is looked at in the way disability was looked at prior to the amendments to the ADA. That distinction can be very important because that means Toyota Motor and Sutton are still in play. In other words, a substantial limitation on a major life activity under the Fair Housing Act could very well be a limitation that severely restricts or prevents a person from performing a major life activity of central importance to most people’s daily lives. Also, per Sutton, you can factor into the equation mitigating measures with respect to determining whether a person has a disability.
  3. The Illinois Assistance Animal Integrity Act also says that disability means the same thing as the definition of disability under the Illinois Human Rights Act. However, the Illinois Human Rights Act has a very interesting definition of disability that doesn’t closely resemble the definition of a disability under the ADA. In particular, 775 ILCS 5/1-102(I), (I)(2) says that disability means a determinable physical or mental characteristic of a person, including, but not limited to, a determinable physical characteristic necessitating the person’s use of a guide, hearing or support dog, the history of the characteristic, or the perception of such characteristic by the person complained against, which may result from disease, injury, congenital condition of birth or functional disorder in which characteristic is unrelated to the person’s ability to acquire, rent, or maintain a housing accommodation. I could see lots of litigation over whether the characteristic is unrelated to the person’s ability to acquire, rent, or maintain a housing accommodation. The Illinois definition of disability in its Human Rights Act is very unusual.
  4. The reason I put the section defining what a therapeutic relationship does not include in quotation marks is because the punctuation is very funny. The phrase, “without conducting a meaningful assessment of a person’s disability or a person’s disability related need for an assistance animal,” is entirely encapsulated in commas. Accordingly, is this phrase restrictive or parenthetical? If it is restrictive, it means that entities issuing certificates, licenses, or other similar documents can continue to do so and have it counted as sufficient documentation if they conduct a meaningful assessment of a person’s disability or a person’s disability related need for an assistance animal. However, if it is parenthetical, then an argument exists that documentation from entities issuing certificates, licenses, or similar documents purporting to confirm that a person has a disability or is in need of an assistance animal is no longer sufficient documentation. Judging from context, it seems that the phrase would have to be restrictive. Nevertheless, an argument to the contrary does exist.
  5. The Act clearly sets forth when documentation can be requested (where the need is not readily apparent), what is necessary for sufficient documentation, and when follow-up documentation can be requested.
  6. The Act allows for a variety of ways the documentation can be submitted.
  7. This Act is quite a bit different from the circular, which we discussed here. That raises a real question of what is a landlord to do when they are faced with the issue of the Illinois Assistance and Animal Integrity Act allowing for a different approach and having different requirements than the Fair Housing Act circular. In that situation, I believe the Fair Housing Act circular loses out to the applicable state law. Now, you may say wait a minute doesn’t federal law trumps state law? It does. However, the Fair Housing Act circular is not federal law. As we have said before, it is not even in the interpretation of an agency’s own regulations. Accordingly, under Kisor, I don’t see how a federal court would give deference to the Fair Housing Act circular. Accordingly, state law would prevail over the circular. Now, where the state law discriminates against people with disabilities with respect to any conflict with the ADA or with respect to the equal protection clause of the 14th amendment, that is another question. Remember, excepting the common areas, the ADA does not apply to dwellings. Rather, dwellings are covered by Fair Housing Act.
  8. The Illinois approach seems a sensible one, though it is imperfect. The Illinois approach has three big issues: 1) “disability,” is not defined in the same way as it is under the ADA, and the way disability is defined can be very confusing to figure out; 2) it is very unclear whether entity’s issuing certificates, licenses, or other similar document can ever be counted as giving sufficient documentation; and 3) does a landlord have to show both undue financial and administrative burden if using that defense or is it okay to just show one or the other (the Act uses “and,” and not or).
  9. Don’t forget about utilizing knowledgeable legal counsel.
  10. For those representing housing providers in Illinois, be prepared to defend the housing provider on the grounds that they are doing exactly what Illinois law allows and that the HUD circular is not the governing law per what we discussed in this blog entry.
  11. Landlord should be prepared for litigation and pushback from Housing and Urban Development should they decide assistance animals should only be allowed after an application of Toyota Motor and Sutton even though landlord may be perfectly within the law to take that approach.

Today’s blog entry is a twofer. In the first part of the blog entry, we are going to update a case that we previously blogged on here. In the second part of the blog entry, we are going to explore the question of whether general commercial liability insurance policies cover failure to accommodate claims outside of the employment context. As usual, the blog entry is divided into categories and they are: Access Living v. Uber Technologies update; Access Living thoughts/takeaways; Brooklyn Center for Psychotherapy introduction; Second Circuit’s reasoning/insurance coverage; Second Circuit’s reasoning/certification; and thoughts/takeaways on the Second Circuit decision.

 

I

Access Living v. Uber Technologies, Inc. Update

 

We previously blogged on the District Court decision here. It gets appealed to the Seventh Circuit and the Seventh Circuit winds up affirming the District Court. Nevertheless, there are some things in the Seventh Circuit opinion that bear noting and they follow below:

 

  1. The lawsuit was brought by three individuals and Access Living. Two of those individuals settled. That left one individual and Access Living still in the case on appeal.
  2. The language of title III of the ADA requires plaintiffs to directly experience the challenged discrimination. In particular, 42 U.S.C. §12188(a)(1) limits claims to any person subjected to discrimination on the basis of disability. The dictionary defines “subject,” as, “bringing under the operation of an agent, agency, or process; to submit to certain treatment; to cause to undergo or experience something physically.” Therefore, title III of the ADA eliminates claims of individuals alleging only indirect injury experienced derivatively or vicariously through another.
  3. With respect to Access Living, no allegations were made that Access Living had its own corporate account and found itself unable to order rides for staff, volunteers, or guests. Instead, all of its allegations are indirect in the form of increased reimbursement costs to other individuals not able to use Uber.
  4. Title II of the ADA at 42 U.S.C. §12133 authorizes claims by, “any person alleging discrimination on the basis of disability.” The difference in formulation between title II and title III has to matter. That is, where Congress includes particular language in one section of a statute but omits it in another, it is generally presumed that Congress acted intentionally and purposely in doing it that way.
  5. Title II plaintiffs only have to trace the alleged injury to any proscribed discrimination within that portion of the ADA.
  6. The remaining individual plaintiff claim fails because she did not allege any direct injuries. It would have been a different story if the plaintiff had actually downloaded the app and tried to use it. However, she never did that, presumably to avoid an arbitration agreement kicking in. Failure to download the app meant that she could not show that she directly experienced the discrimination. Her association claim also fails because her husband, who had to use specialized vehicles all the time, never downloaded the app either. So, no direct injury there either.

 

II

Thoughts/Takeaways

 

  1. Association discrimination claims are still viable but there has to be a direct injury, which wasn’t present in this case because the husband never downloaded the app and tried to use Uber.
  2. With respect to Access Living, the whole case would change if Access Living got a corporate account from the Uber and employees tried to utilize Uber through the corporate account.
  3. The court’s language about the difference between how title II and title III phrase who can bring claims is very significant for the issue of what is causation under title II. Recall, title II’s causation is, “by reason of disability.” Whereas, §504 of the Rehabilitation Act is, “solely by reason of disability.” An argument exists that the difference in formulation between the two laws has to matter. After all, the ADA came into effect after §504 of the Rehabilitation Act.
  4. Also, very significant is the court’s statement that a title II plaintiff only has to trace the alleged injury to any proscribed discrimination within that portion of the ADA, which presumably includes the final regulations.
  5. The court is most probably right that the reason why the app was never downloaded was because the plaintiff did not want to subject themselves to an arbitration agreement. Should plaintiffs always be afraid of entering into arbitration? Certainly, plaintiffs do not like to do that. On the other hand, I have read many a blog entry from lawyers representing management saying that winning arbitration matters is no sure thing, and it can be just as expensive as traditional litigation.

 

III

Brooklyn Center for Psychotherapy, Inc. v. Philadelphia Indemnity Insurance Company Introduction

 

Our second case is Brooklyn Center for Psychotherapy, Inc. v. Philadelphia Indemnity Insurance Company, which can be found here. I found out about the case from one of the blogs in my blog roll, the Wait a Second blog. This case asks a fascinating question of whether general commercial liability insurance policies cover failure to accommodate claims. After reading this case, I did some legal research. There are very few cases around the country talking about this. I found a handful in California. As we will discuss in a bit, the answer as to why there are so few cases has an explanation. Nevertheless, there are cases. In the end, the Second Circuit winds up certifying to the highest court of the state of New York, which is actually called the Court of Appeals, to see how they would answer the question. Even so, it pays to look at what the Second Circuit said about the issue before certifying it to the highest court of the state of New York.

 

IV

Second Circuit’s Reasoning/Insurance Coverage

 

  1. Under the policy, which is fairly typical, the policy provided coverage for those sums Brooklyn Center becomes legally obligated to pay as damages because of bodily injury or property damage caused by an occurrence. That policy also mandates the insurance company has a duty to defend the Brooklyn Center against any suit seeking those damages. Finally, the policy defined an occurrence to mean an accident, including continuous or repeated exposure to substantially the same general harmful conditions. This “accident,” language has commonly appeared in comprehensive general liability policies since 1966.
  2. The duty to defend is broader than the duty to indemnify. An insurer has to defend whenever the allegations of the complaint suggests a reasonable possibility of coverage even though it is entirely possible that the insurer may not be required to pay once the litigation had run its course.
  3. Damages flowing directly immediately from the intended acts are not covered by such policies. However, damages accidentally arising out of a chain of unintended though expected or foreseeable events occurring after an intentional act are covered by such policy.
  4. Under New York law, damages can be considered accidental where the total situation could be found to constitute an accident.
  5. Under New York law, discrimination based upon disparate treatment is an intentional wrong, but that is not the case with respect to disparate impact discrimination suits and suits involving vicarious liability of employers.
  6. So long as Brooklyn Center believe that hiring interpreters to accommodate the customer’s disability was unreasonable or would have imposed an undue hardship on its business, any resulting harm from its refusal to accommodate that individual would be accidental.
  7. On the other hand, failure to provide the accommodation is an intentional act, and New York law has said that damages flowing directly and immediately from intended acts are not covered by such policies.

 

V

Second Circuit’s Reasoning Certification

 

  1. Certification to the highest court of New York is proper when: 1) the highest court of New York has not squarely addressed an issue and other decisions by New York State courts are insufficient to predict how the highest court will resolve it; 2) the plain language of the insurance contract does not indicate an answer; 3) a decision on the merits requires value judgments and important public policy choices that the highest court is better situated than the federal court to make; and 4) the question certified will control the outcome of the case.
  2. All four of the factors a court considers when making a certification referral apply: 1) the highest court of New York has not made any decision whether insurers must defend the insured in actions alleging failure to accommodate discrimination under general commercial liability insurance policies; 2) sufficient litigation does not exist for the federal court to figure out what the New York highest court would do; 3) based upon existing New York common law, the language of the policy is ambiguous with respect to whether a duty to defend exists for failure to accommodate claims; 4) a decision on the merits would require the federal court to determine whether New York public policy bars the defense of a failure to accommodate claim. Such a decision clearly implicates important public policy choices that the highest court of New York is better situated than a federal court to make; and 5) the answer to the question is wholly determinative of the decision before the Second Circuit.

 

VI

Thoughts/Takeaways regarding Brooklyn Center

 

  1. You see very few of these cases. There is the Second Circuit case. As I mentioned above, when I did the legal research I found a handful of cases exploring this from California. At least one of those cases, I didn’t read them all, sided with the insured with respect to the duty to defend failure to accommodate claims under commercial general liability insurance policies. That fact is significant in and of itself as California has the tort of the covenant of good faith and fair dealing and does not give insurance companies a lot of slack when it comes to the duty to defend (in law school, I actually took insurance law from Harvey Levine, now deceased, who was one of the preeminent California attorneys with respect to the tort of the covenant of good faith and fair dealing in California. So, we were constantly talking about the duty of the insurance company to defend and what happens when they didn’t offer the limits of an insurance policy and settlement).
  2. If you think about it, it makes sense why you don’t see a lot of these cases. First, when it comes to title I of the ADA, employment liability insurance would cover that. When it come to title II of the ADA, nonfederal governmental entities are invariably self-insured. When it comes to title III of the ADA, damages aren’t even possible. The only remedies you can get for title III claims are injunctive relief and attorney fees. So, attorney fees can get expensive, but there aren’t any damages to worry about unless the Department of Justice gets involved. Accordingly, many title III cases will either result in the plaintiff backing off, a settlement, including attorney fees, being reached; or the title III entity granting the requested accommodation (any of these outcomes are cheaper than litigating). It will be interesting to see more of these cases arise in the future.
  3. An act may be intentional but not intentional in the legal sense. That is, negligence is intentional but that isn’t the same thing as conscious disregard, deliberate indifference, or discriminatory animus, or even an intentional tort. Many failure to accommodate claims are more like negligence claim than they are how lawyers think of intentional acts. Does such a distinction sway insurance coverage? Possibly… It would be interesting to see how a court would deal with that argument.

Braille, Barrier-Free, Black, Symbol

 

It is hard to write on anything that doesn’t have something to do with Covid-19. However, ADA jurisprudence continues and a lot of it happens outside of Covid-19. That said, expect a tremendous amount of issues stemming from Covid-19. We will certainly be following those issues closely. Today, we will be talking about a case, Dominguez v. Banana Republic, LLC, out of the Southern District of New York where Judge Woods dismisses plaintiff’s claims that not offering braille gift cards violates title III of the ADA. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning general/standing; court’s reasoning gift cards are not places of public accommodation; court’s reasoning no claim exists for Banana Republic failing to provide auxiliary aids and services; and thoughts/takeaways. As usual, the reader is free to focus on any or all of the categories.

 

I

Facts

 

In Dominguez v. Banana Republic, found here, Dominguez called Banana Republic’s customer service office to ask whether the store sold braille gift cards. An employee told him that the store did not. During the call, the employee did not offer plaintiff any alternative auxiliary aids or services. Later, plaintiff unsuccessfully attempted to locate accessible braille gift card for Banana Republic on his own. Plaintiff then sued Banana Republic under the ADA and the New York State Human Rights law. Plaintiff’s firm and another firm have brought several identical lawsuits like this, which the court was none too happy about.

 

II

 

Court’s Reasoning General/Standing

 

  1. Proving up a claim of a violation of title III of the ADA means establishing that: 1) plaintiff is a person with a disability as defined by the ADA; 2) defendants own, lease, or operate a place of public accommodation; and 3) the defendant discriminated against the plaintiff within the meaning of the ADA.
  2. Showing standing under title III of the ADA involves showing: 1) a past injury; 2) it is reasonable to infer that discriminatory treatment would continue; and 3) it is reasonable to infer, based upon the past frequency of plaintiff’s business and the proximity of defendant services to plaintiff’s home, that plaintiff intended to return to the subject location.
  3. Plaintiff has alleged both a past injury and that discriminatory treatment was likely to continue because he was told that not only Banana Republic’s does not have any braille gift cards, but they had no plans to offer them in the future.
  4. Plaintiff did not allege enough facts to plausibly plead that he intended to return to the place where he encountered the alleged discrimination for several reasons: 1) he did not profess any interest in procuring contemporary, affordable workwear; 2) he didn’t assert that he owned Banana Republic pieces already and wished to continue compiling a collection with the help of Banana Republic gift card; and 3) generic conclusory statements are not sufficient.
  5. Cut and paste pleadings have their advantages in terms of the ability to turn them out quickly and often. However, their disadvantage is that they are too conclusory and fail to allege sufficient specific facts to show a real or immediate threat of injury in a specific situation.

III

 

Court’s Reasoning Gift Cards Are Not Places of Public Accommodations

 

  1. Title III of the ADA regulates access to places of public accommodation and not to the type of merchandise a place of public accommodation sells.
  2. Title III does not require provision of different goods or services. Rather, it just requires nondiscriminatory enjoyment of those that are provided. For example, a bookstore cannot prohibit a visually impaired person from entering the store, but the books themselves do not have to be available in both braille and in standard print.
  3. Gift cards are a good under the dictionary term of the meaning and therefore, do not need to be made accessible under title III.
  4. A retailer sells gift card to consumers in the same way as they sell any other product in its stores.
  5. DOJ implementing regulations, 28 C.F.R. §36.307(a), says a title III entity does not have to alter its inventory to include accessible or special goods designed for person with disabilities.
  6. The purpose of the ADA’s title III requirements to ensure accessibility to the goods offered by a public accommodation and not to change the nature or mix of goods that the public accommodation typically provides.
  7. Gift cards are neither places nor public accommodations.
  8. Gift cards are not public accommodation because gift cards fit into none of the categories of 42 U.S.C. §12181(7).
  9. Gift cards are not places either. That is, Congress likely used the words place of public accommodation because it could find no other less cumbersome way to describe businesses offering particular goods or services covered in 42 U.S.C. §12181. While it is true that the Second Circuit allows for places of public accommodation to extend beyond physical spaces, it simply is impossible to come up with the conclusion that gift cards are a place. After all, gift cards do not sell or rent goods. Put differently, you can make a purchase with a gift card, but not on or in a gift card.
  10. Courts have the responsibility of interpreting the actual text of laws that Congress enacts, and not with rewriting or expanding the scope of laws in the absence of the statutory text no matter how much one thinks it may advance remedial goals or represent congressional intent.

 

IV

 

Court’s Reasoning: No Claim Exists for Banana Republic Failing to Provide Auxiliary Aids and Services

 

  1. 42 U.S.C. §12182(b)(2)(A)(iii) requires the providing of auxiliary aids and services by a title III covered entity unless doing so would result in the fundamental alteration of the goods, services, facility, privileges, advantages, or accommodations being offered or would result in an undue burden.
  2. Auxiliary aids and services include, per 42 U.S.C. §12103(1)(B)-(D), qualified readers, tape text, modification of equipment or devices, or other effective methods of making visually delivered materials available to individuals with visual impairments.
  3. With respect to title III, DOJ final implementing regulations, 28 C.F.R. §36.303(c)(1)(ii) make clear that it is the title III entity that gets to decide what auxiliary aid to offer. For example, a restaurant would not be required to provide menus in braille for patrons who are blind if the waiters in the restaurant are made available to read the menu. Similarly, a clothing boutique would not be required to have braille price tag if sales personnel provide price information orally upon request, and a bookstore would not be required to make available a sign language interpreter because effective communication can be conducted by notepad.
  4. Plaintiff was not denied access to an auxiliary aid or service, much less one that effectively communicated information about Banana Republic’s gift cards.
  5. In a footnote, the court notes that it is absurd to read the ADA as requiring a place of public accommodation to offer every single customer the help of all available auxiliary aids and services before the customer even after one.
  6. Braille gift cards may or may not even be technologically possible because a braille gift card can only fit 55 to 70 braille characters. Braille is very big.
  7. ADA and constitutional law integration arguments don’t work because gift cards are not cash and gift cards do not facially maximize a person’s employment, economic self-sufficiency, independence, or inclusion and integration into society.

 

IV

 

Thoughts/takeaways

 

  1. The decision seems well reasoned, to me anyway.
  2. Be careful about taking the example of using communication by notes with people who are Deaf, deaf, or hard of hearing. Especially with the Deaf (culturally deaf individuals), communication by notes back and forth especially where complex information is involved, is not likely to be effective as we saw in the case we discussed here. Also, depending upon context, it isn’t even something you would want to try.
  3. Do we have a different case if instead of just asking for braille gift cards, the blind individual asked for some way to use gift cards in a way a person who is not blind could use them? For example, would there be some way for the blind individual to know that the gift card is from Banana Republic? Would there be some way for the blind individual to know how much is on their gift card? I suppose all of that is possible litigation down the road.
  4. If a blind individual does call saying I would like a braille gift card. A better response might be we don’t offer that, but how can I be of help so that you can participate in that activity? Most people with disabilities are not looking to foment litigation. Respecting the individual with the disability goes a long way.
  5. When it comes to the ADA, if on the plaintiff side, stay away from notice pleadings. Instead, be sure to allege enough facts to put the defendant on notice as to the specifics of the claim. Think of it as a hybrid of staying somewhere in the middle between notice pleading and fact-based pleadings.
  6. While magic words aren’t required to request an accommodation, some kind of request for accommodation does have to be made.

As everyone knows, I rarely post to blog entries in a week. However, there are exceptions. The EEOC has updated their guidance on the pandemic twice since we last wrote, including yesterday. So, I thought it would be a good time to go over the paragraphs of the EEOC guidance that we have yet to cover. The way this blog entry will proceed is that I am listing the paragraphs verbatim we have yet to discuss. Underneath each of the EEOC paragraphs, I have my thoughts. At the very end, I have additional thoughts as well.

 

A.6.   May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace? 4/23/20

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.”  Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable.  For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates.  Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test.  Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.

Based on guidance from medical and public health authorities, employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.

 

My thoughts:

  1. In this particular section, EEOC does not say what job-related and consistent with business necessity actually means. Those are two concepts we have discussed quite often in our blog, including here.
  2. While an employer may choose to administer Covid-19 testing to employees before they enter the workplace to determine if they have the virus, employers do need to ensure that the tests are accurate and reliable. That may be a dicier proposition than you might think.
  3. The EEOC also cautions that employers may wish to consider the incidence of false positives and false negatives associated with the particular test. The clear implication there is getting into a regarded as situation or even creating a record of disability where none actually exists.
  4. The EEOC also notes that accurate testing only reveals if the virus is currently present and not whether the employee will get it later.
  5. Employers must have employees observe infection control practices.

D.6.  During the pandemic, may an employer still engage in the interactive process and request information from an employee about why an accommodation is needed? (4/17/20)

Yes, if it is not obvious or already known, an employer may ask questions or request medical documentation to determine whether the employee’s disability necessitates an accommodation, either the one he requested or any other. Possible questions for the employee may include: (1) how the disability creates a  limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether another form of accommodation could effectively address the issue, and (4) how a proposed accommodation will enable the employee to continue performing the “essential functions” of his position (that is, the fundamental job duties).

My thoughts:

  1. Essential job functions are the fundamental job duties.
  2. What the EEOC is talking about in this section should already be happening long before Covid-19.
  3. If the disability is obvious or already known, this guidance suggests that you may be much more limited as an employer in what you can ask or seek by way of medical documentation in those cases. We have seen this type of strategy with respect to service animals and the DOJ final implementing regulation where if the disability is obvious or known you do not get to ask the two inquiries.

D.7.  If there is some urgency to providing an accommodation, or the employer has limited time available to discuss the request during the pandemic, may an employer provide a temporary accommodation? (4/17/20)

Yes.  Given the pandemic, some employers may choose to forgo or shorten the exchange of information between an employer and employee known as the “interactive process” (discussed in D.5 and D.6., above) and grant the request.  In addition, when government restrictions change, or are partially or fully lifted, the need for accommodations may also change.  This may result in more requests for short-term accommodations. Employers may wish to adapt the interactive process – and devise end dates for the accommodation – to suit changing circumstances based on public health directives.

Whatever the reason for shortening or adapting the interactive process, an employer may also choose to place an end date on the accommodation (for example, either a specific date such as May 30, or when the employee returns to the workplace part- or full-time due to changes in government restrictions limiting the number of people who may congregate). Employers may also opt to provide a requested accommodation on an interim or trial basis, with an end date, while awaiting receipt of medical documentation. Choosing one of these alternatives may be particularly helpful where the requested accommodation would provide protection that an employee may need because of a pre-existing disability that puts her at greater risk during this pandemic. This could also apply to employees who have disabilities exacerbated by the pandemic.

Employees may request an extension that an employer must consider, particularly if current government restrictions are extended or new ones adopted.

My thoughts:

  1. With respect to temporary accommodations, this is something I see quite a bit at colleges and universities where a temporary accommodation will be given until the process can be worked out.
  2. The interactive process should always be fluid and not just a one time thing.
  3. Once an accommodation is given, be absolutely sure an interactive process occurs before taking the accommodation away or giving a new accommodation.
  4. Employers can always opt to provide a requested accommodation on an interim or trial basis with an end date while awaiting receipt of medical documentation. Be careful not to request excessive medical documentation. Also, be sure to engage in the interactive process throughout the trial period and especially when the trial period ends.
  5. I look for lots and lots of issues with employers with respect to employees with pre-existing disabilities that put them at greater risk during the Covid-19 pandemic. Also, same goes for employees that had Covid-19 and have recovered.
  6. Know how to go about the interactive process as we discussed in this blog entry.
  7. If you are doing reasonable accommodations on a trial basis, be sure to stay on top of that. Also, do not get trapped by fixed deadlines. If you are not sure if it is working out, nothing wrong with extending the deadline. Also, pay attention to the medical science.
  8. An employer is under no obligation to waive an essential function of the job. If an employer due to Covid-19 pandemic decides to waive an essential function of the job because the context has changed so dramatically, be sure to let the employee know that this waiver is not a permanent situation. Also, if you do that, be prepared for the employee later to claim that his or her job has evolved so that they can perform the essential functions of the job with or without reasonable accommodations. In short, this is a good time for the employer to be reassessing just what are the essential functions of the job.
  9. A personal preference is not the same thing as an essential function. For example, many people may prefer the interpersonal contact of being in an office. However, their job may be such that the essential functions can be done anywhere. So, if an employer were to insist on coming into the office when the essential function could be done anywhere, that does create an ADA compliance issue.

D.8.  May an employer ask employees now if they will need reasonable accommodations in the future when they are permitted to return to the workplace? (4/17/20)

Yes.  Employers may ask employees with disabilities to request accommodations that they believe they may need when the workplace re-opens.  Employers may begin the “interactive process” – the discussion between the employer and employee focused on whether the impairment is a disability and the reasons that an accommodation is needed.

My thoughts:

  1. A person with Covid-19 may very well have a disability.
  2. A person who has recovered from Covid-19 may very well have a record of a disability and possibly other disabilities as well.
  3. As we have discussed numerous times in our blog, such as here, magic words are not required to start the interactive process.

D.9.  Are the circumstances of the pandemic relevant to whether a requested accommodation can be denied because it poses an undue hardship? (4/17/20)

Yes.  An employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship,” which means “significant difficulty or expense.” In some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.

My thoughts:

  1. An employer never has to provide an accommodation if it is an undue hardship.
  2. Undue hardship can either be logistical or financial.
  3. “Significant difficulty or expense”, is actually a term of art in ADA jurisprudence. So, don’t take that literally. In the world of the ADA, financial undue hardship is very difficult to show, such as we discussed here, though it may be slightly easier now in light of the financial hit being caused by the Covid-19 pandemic. Remember, EEOC final regulations, 29 C.F.R. §1630.2(p)(2), require looking at the entire resources of the entity with respect to figuring out financial undue hardship.
  4. Logistical undue hardship, i.e. fundamental alteration, is also going to be much more complicated to determine with Covid-19 pandemic.
  5. It is certainly possible that what would not an undue hardship previously is one now. However, that may happen less than you might think.

D.10.  What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant difficulty” during the COVID-19 pandemic? (4/17/20)

An employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace.  For example, it may be significantly more difficult in this pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking.  Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions.  If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.

My thoughts:

  1. Undue hardship considerations are always very fact specific. Again, as mentioned above, financial undue hardship looks to the entire resources of the entity.
  2. Logistical undue hardship looks to how the business operates.
  3. If the conclusion is reached that a proposed accommodation poses an undue hardship, do not forget about the interactive process so that it can be determined if there is in some accommodation that can be done that does not pose an undue hardship.

D.11.  What types of undue hardship considerations may be relevant to determine if a requested accommodation poses “significant expense” during the COVID-19 pandemic? (4/17/20)

Prior to the COVID-19 pandemic, most accommodations did not pose a significant expense when considered against an employer’s overall budget and resources (always considering the budget/resources of the entire entity and not just its components).  But, the sudden loss of some or all of an employer’s income stream because of this pandemic is a relevant consideration.  Also relevant is the amount of discretionary funds available at this time – when considering other expenses – and whether there is an expected date that current restrictions on an employer’s operations will be lifted (or new restrictions will be added or substituted).  These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic.  For example, even under current circumstances, there may be many no-cost or very low-cost accommodations.

My thoughts:

  1. Absolutely true that the loss of some or all of an employer’s income stream because of Covid-19 is a relevant consideration when it comes to financial undue hardship.
  2. I am not sure I understand where the EEOC is going with respect to their view that it is relevant what the amount of discretionary funds available are when considering other expenses. Keep in mind, final federal regulations are always going to trump guidances as we discussed here.
  3. Generally speaking, the actual cost of accommodations I have seen go as high as $1400 on the high-end. Many are $500 or less. The vast majority of accommodations do not cost anything at all. Have those costs changed in light of Covid-19? Maybe but maybe not appreciably. It may depend on the specific accommodation.

D.12.  Do the ADA and the Rehabilitation Act apply to applicants or employees who are classified as “critical infrastructure workers” or “essential critical workers” by the CDC?

Yes.  These CDC designations, or any other designations of certain employees, do not eliminate coverage under the ADA or the Rehabilitation Act, or any other equal employment opportunity law.  Therefore, employers receiving requests for reasonable accommodation under the ADA or the Rehabilitation Act from employees falling in these categories of jobs must accept and process the requests as they would for any other employee.  Whether the request is granted will depend on whether the worker is an individual with a disability, and whether there is a reasonable accommodation that can be provided absent undue hardship.

My thoughts:

  1. The fact that a person is labeled by the CDC as a critical infrastructure worker or an essential critical worker has nothing to do with whether that individual is a qualified person with a disability under the ADA.
  2. A qualified individual with a disability on probation is also covered by the ADA.

E.2.  Are there steps an employer should take to address possible harassment and discrimination against coworkers when it re-opens the workplace? (4/17/20)

Yes.  An employer may remind all employees that it is against the federal EEO laws to harass or otherwise discriminate against coworkers based on race, national origin, color, sex, religion, age (40 or over), disability, or genetic information.  It may be particularly helpful for employers to advise supervisors and managers of their roles in watching for, stopping, and reporting any harassment or other discrimination.  An employer may also make clear that it will immediately review any allegations of harassment or discrimination and take appropriate action.

My thoughts:

  1. This paragraph is straightforward, and I do not have anything to add to it. That said, even now, an employer still has to take steps to address possible harassment and discrimination against coworkers. As we have discussed here, hostile work environment has been held applicable to people with disabilities.

G. Return to Work

G.1.  As government stay-at-home orders and other restrictions are modified or lifted in your area, how will employers know what steps they can take consistent with the ADA to screen employees for COVID-19 when entering the workplace? (4/17/20)

The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity.  Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.

Direct threat is to be determined based on the best available objective medical evidence.  The guidance from CDC or other public health authorities is such evidence.  Therefore, employers will be acting consistent with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time.

For example, this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace.  Similarly, the CDC recently posted information on return by certain types of critical workers.

Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.

My thoughts:

  1. Any medical exams must be reliable.
  2. Don’t go on fishing expeditions. That is, keep any inquiries and medical exams narrowly focused on Covid-19.
  3. Rely on the best available objective medical evidence. You might consider as an employer having your own infectious disease specialist on retainer as the guidances from various governmental entities and public health authorities can be all over the place. Certainly, start with CDC.
  4. Watch out for practices that screen out people based upon protected characteristics, including people with disabilities, in decisions relating to screening and exclusion.

G.2.  An employer requires returning workers to wear personal protective gear and engage in infection control practices.  Some employees ask for accommodations due to a need for modified protective gear.  Must an employer grant these requests? (4/17/20)

An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols).

However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer’s business under the ADA or Title VII.

My thoughts:

 

  1. It is entirely possible that protective gear may need to be modified for a person with a disability. Be sure to engage in the interactive process in that situation. For example, a lip reader like myself will have an incredibly difficult time trying to understand a person wearing a mask of some kind.
  2. Interactive process!!!!!!!!!!!!!!!!!!!

 

Other thoughts:

 

  1. Knowledgeable ADA legal counsel is more critical now than ever.
  2. If you are in a State that is arguably getting ahead of the science, you will need to think about all of this. You will also need to be thinking about business interruption insurance coverage being available in the event of a future shutdown if you reopen ahead of the science, OSHA, negligence, and many other laws as well.

 

Stay safe y’all.

Today’s blog entry is a topic that I have never discussed before. Since December 2011, my records show that I have put up 408 blog entries. In not one of them, have I discussed today’s entry. Today’s entry discusses the doctrine of after-acquired evidence and how it works with title I and logically, to a lesser extent, title II as well. As usual the blog entry is divided into categories and they are: just what is the after-acquired evidence doctrine; Anthony introduction/facts; court’s reasoning; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Just What Is the After-Acquired Evidence Doctrine

 

The after-acquired evidence doctrine comes from the case of McKennon v. Nashville Banner Publishing Company, 513 U.S. 352 (1995), a unanimous decision by Justice Kennedy. That case involved ADEA. In that case, the employer terminated an employee because of her age. There was absolutely no dispute about that. After termination and during discovery, the employer found out that the employee had engaged in misconduct that would have justified her termination in any event. In particular, she copied certain files and kept them for herself in order to protect herself later. The case goes all the way to the United States Supreme Court and the Court holds that after-acquired evidence can be used but it only affects remedies not liability. With respect to remedies where after-acquired evidence justifies a termination, reinstatement and front pay are out. Also, when it comes to backpay, backpay is calculated from the date of the unlawful discharge to the date the new information was discovered. The judge also has a lot of discretion with respect to remedies in such cases as well. In short, with respect to ADEA after-acquired evidence goes to remedies and not to liability.

 

II

Anthony Introduction/Facts

 

Our case of the day is Anthony v. Trax international Corporation, a published decision from the Ninth Circuit decided on April 17, 2020. This case asked the question of whether after-acquired evidence works the same way with respect to title I of the ADA matters. There are two critical facts that need to be mentioned before proceeding further. First, plaintiff was fired because she never gave her employer a full return to work release. Second, the particular job that the plaintiff had was a technical writer. That position required per her employer’s contract with the government that any technical writer must have a bachelor’s degree. Plaintiff represented on her employment application that she had such a degree when in fact she did not. Finally, the party cross moved for summary judgment.

 

II

Court’s Reasoning

 

  1. Unlike the ADEA, the ADA in title I only protects people with disabilities who are both qualified and who are a person with a disability. Under title I of the ADA’s final implementing regulations at 29 C.F.R. §1630.2(m), which has been adopted uniformly throughout the courts, a person with a disability is qualified if he or she satisfies the requisite skill, experience, and education requirements of the position and can, with or without reasonable accommodation, perform the essential functions of the job. Accordingly, to be protected under the ADA a person with a disability must be a person with a disability And also be qualified. So, since qualified and being a person with a disability are two independent prerequisites for protection under the ADA, after-acquired evidence showing that the individual was not qualified knocks them out from any ADA recovery whatsoever.
  2. An employer’s ignorance cannot create a credential where there is none.
  3. Whether a person is qualified is a question decided at the time of the adverse employment action.
  4. The parade of horrible’s argument from this decision simply doesn’t work. Currently, employers sued for discrimination already have to hunt for such disqualifiers because after-acquired evidence can be used to limit damages. Also, employers are unlikely to purposefully expose themselves to significant liability on the off chance they might discover some after missing qualification during the already costly discovery process. Finally, employers cannot invent new requirements to avoid liability because the employer must actually require the missing qualification at the time of the allegedly discriminatory action.
  5. Accepting plaintiff’s argument would extend coverage to those who do not meet a job’s prerequisites, including those who successfully deceived their employer as to their qualification. That outcome would be at odds with Congress’s expressed decision to limit the ADA’s protection to qualified individuals.
  6. The EEOC filed an amicus brief in the case. If they disagree with this reasoning, they are free to reconsider its own implementing regulations and interpretive guidance elaborating upon the statutory definition of qualified individual.
  7. Plaintiff’s claim that the employer failed to engage in the interactive process fails for the same reason because plaintiff was not qualified per 29 C.F.R. §1630.2(m). That is, the obligation to engage in the interactive process only applies to a person with a disability who is qualified.

 

III

Thoughts/Takeaways

 

  1. The reasoning in this case appears to me to be very solid. I don’t see how an appeal to the Supreme Court would be successful given the Ninth Circuit’s reasoning and the Supreme Court’s current configuration.
  2. Title I of the ADA is not the only place you find the term qualified. You also find it in title II of the ADA at 42 U.S.C. §12132 and in DOJ’s final implementing regulations for title II of the ADA at 28 C.F.R. §35.104. That particular provision states that a person with a disability is qualified if he or she can, with or without reasonable modification to rules, policies, or practices; the removal of architectural, communication, or transportation barrier; or the provision of auxiliary aids and services, meet the essential eligibility requirements for receiving services or participating in programs or activities provided by a public entity. So, if a person seeking services from a nonfederal governmental entity misrepresents their eligibility for that particular program, service, or activity, then there is absolutely no reason why the nonfederal governmental entity cannot use this particular case as a means of saying that they never had to provide the service, program, or activity in the first place because the person was not qualified to begin with. Admittedly, in the title II context this is going to be a much harder lift because essential eligibility requirements are often not an issue with respect to whether they are met. Nevertheless, I can foresee certain governmental programs, services, or activities where this might be an issue.
  3. Title III of the ADA does not have a qualified component to it either in its statutory text  or in its final implementing regulations. As a practical matter, in order to deal with undue burden and fundamental alteration in title III you are applying qualified principles even if they don’t exist. However, the fact remains that qualified does not appear in title III of the ADA nor does it appear in its final implementing regulations. Accordingly, very unclear whether this decision would apply to a title III situation. The question may be very theoretical, but nevertheless it exists. At the moment, I am having trouble coming up with a situation that would mimic our case of the day in the title III context, but that doesn’t mean such a situation doesn’t exist.
  4. The bottom line is that with respect to title I and II matters after-acquired evidence can knock out a plaintiff’s case entirely because both titles statutory text and their final implementing regulations use the term qualified.
  5. From all the cases I have read over the years, I have always found it interesting when I see the statement from the court that the parties cross moved for summary judgment for a couple of reasons. First, plaintiffs very rarely get a summary judgment granted in their favor, though it does happen sometimes. Second, if on the plaintiff side, the object is to get to a jury trial. Cross moving for summary judgment as a practical matter often turns it into a bench decision without the benefit of trial testimony. Also, many courts use summary judgment as a screening out tool to only get the strongest cases to the jury. So, I have always wondered about a plaintiff moving for summary judgment in light of these considerations.
  6. The employer here got off on a technicality so to speak. That said, full return to work is not something an employer should be doing as we discussed here.

On April 9, 2020, the EEOC updated its March 17, 2020, what you should know about Covid-19 and the ADA, Rehabilitation Act, and other EEO laws document. I thought it would be a good idea to list the additions below and then discuss a bit. I’m only focusing on the additions since I covered the other stuff previously here. The categories A-E and the information in those categories are verbatim from the EEOC publication, which can be found here. The very last paragraph in each category contains my thoughts. At the end of §E, I have additional thoughts. Why this paragraph is in bold, I do not know.

A. Disability-Related Inquiries and Medical Exams

A.2.  When screening employees entering the workplace during this time, may an employer only ask employees about the COVID-19 symptoms EEOC has identified as examples, or may it ask about any symptoms identified by public health authorities as associated with COVID-19? (4/9/20)

As public health authorities and doctors learn more about COVID-19, they may expand the list of associated symptoms.  Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease. These sources may guide employers when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace. For example, additional symptoms beyond fever or cough may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.

My thoughts: What the EEOC is essentially saying here are a couple of things. First, know the medical science as best as you can. You might even want to consider having on retainer your own infectious disease specialist to give you another set of eyes with respect to what you are seeing from the CDC. Second, any disability related inquiries and medical exams need to be narrowly focused. The EEOC says as much in their technical assistance memorandum at §6.6. An excellent case for understanding how the disability related inquiries and medical exams need to be narrowly focused on the science is Scott v. Napolitano, 717 F. Supp. 2d 1071 (S.D. Cal. 2010).

B. Confidentiality of Medical Information

B.1.  May an employer store in existing medical files information it obtains related to COVID-19, including the results of taking an employee’s temperature or the employee’s self-identification as having this disease, or must the employer create a new medical file system solely for this information? (4/9/20)

The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information.  An employer may store all medical information related to COVID-19 in existing medical files.  This includes an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.

B.2.  If an employer requires all employees to have a daily temperature check before entering the workplace, may the employer maintain a log of the results? (4/9/20)

Yes.  The employer needs to maintain the confidentiality of this information.

B.3.  May an employer disclose the name of an employee to a public health agency when it learns that the employee has COVID-19? (4/9/20)

Yes.

B.4.  May a temporary staffing agency or a contractor that places an employee in an employer’s workplace notify the employer if it learns the employee has COVID-19? (4/9/20)

Yes.  The staffing agency or contractor may notify the employer and disclose the name of the employee, because the employer may need to determine if this employee had contact with anyone in the workplace.

My thoughts: with Covid-19 being a direct threat, this view of the EEOC seems to be common sense.

C. Hiring and Onboarding

C.5.  May an employer postpone the start date or withdraw a job offer because the individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19? (4/9/20)

No.  The fact that the CDC has identified those who are 65 or older, or pregnant women, as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer.  However, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone the start date.

My thoughts: the best preventive law tool for figuring out whether attendance is an essential function of the job is the Samper case, which we discussed here. Also, be aware of ADEA (Age Discrimination in Employment Act), and PNDA (Pregnancy Nondiscrimination Act), here as well

D. Reasonable Accommodation

In discussing accommodation requests, employers and employees may find it helpful to consult the Job Accommodation Network (JAN) website for types of accommodations, www.askjan.org.  JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.

My thoughts: JAN is a great resource for both the employer and the employee.

 

D.1.  If a job may only be performed at the workplace, are there reasonable accommodations for individuals with disabilities absent undue hardship that could offer protection to an employee who, due to a preexisting disability, is at higher risk from COVID-19?  (4/9/20)

There may be reasonable accommodations that could offer protection to an individual whose disability puts him at greater risk from COVID-19 and who therefore requests such actions to eliminate possible exposure.  Even with the constraints imposed by a pandemic, some accommodations may meet an employee’s needs on a temporary basis without causing undue hardship on the employer.

Low-cost solutions achieved with materials already on hand or easily obtained may be effective.  If not already implemented for all employees, accommodations for those who request reduced contact with others due to a disability may include changes to the work environment such as designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure.

Flexibility by employers and employees is important in determining if some accommodation is possible in the circumstances. Temporary job restructuring of marginal job duties, temporary transfers to a different position, or modifying a work schedule or shift assignment may also permit an individual with a disability to perform safely the essential functions of the job while reducing exposure to others in the workplace or while commuting.

My thoughts: Good stuff from the EEOC. I would be sure if you are on the employer side to put in language that any waiver of essential functions is temporary if you are going to be waving current essential functions of the job. Keep in mind, as the job evolves over time, a new job with its own essential functions may essentially arise. Definitely look for plaintiff lawyers and disability rights activist to claim that there is no reason why the accommodations shouldn’t continue. Many people with disabilities have been trying for years to get certain accommodation that are now being done as a matter of course for everyone. They will not willingly go back to the old system easily.

D.2.  If an employee has a preexisting mental illness or disorder that has been exacerbated by the COVID-19 pandemic, may he now be entitled to a reasonable accommodation (absent undue hardship)? (4/9/20)

Although many people feel significant stress due to the COVID-19 pandemic, employees with certain preexisting mental health conditions, for example, anxiety disorder, obsessive-compulsive disorder, or post-traumatic stress disorder, may have more difficulty handling the disruption to daily life that has accompanied the COVID-19 pandemic.

As with any accommodation request, employers may: ask questions to determine whether the condition is a disability; discuss with the employee how the requested accommodation would assist him and enable him to keep working; explore alternative accommodations that may effectively meet his needs; and request medical documentation if needed.

 

My thoughts: interactive process!!!!!!!!!!!!!!!!!!!!!!!!

 

D.3.  In a workplace where all employees are required to telework during this time, should an employer postpone discussing a request from an employee with a disability for an accommodation that will not be needed until he returns to the workplace when mandatory telework ends? (4/9/20)

Not necessarily.  An employer may give higher priority to discussing requests for reasonable accommodations that are needed while teleworking, but the employer may begin discussing this request now.  The employer may be able to acquire all the information it needs to make a decision.  If a reasonable accommodation is granted, the employer also may be able to make some arrangements for the accommodation in advance.

My thoughts: getting on top of reasonable accommodation/modification request as quickly as possible given the circumstances always make sense and prevents lawsuits later. When engaging in the interactive process, make sure you go about it the right way as we discussed here.

D.4. What if an employee was already receiving a reasonable accommodation prior to the COVID-19 pandemic and now requests an additional or altered accommodation? (4/9/20)

An employee who was already receiving a reasonable accommodation prior to the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship.  For example, an employee who is teleworking because of the pandemic may need a different type of accommodation than what he uses in the workplace.  The employer may discuss with the employee whether the same or a different disability is the basis for this new request and why an additional or altered accommodation is needed.

My thoughts: the obligation to reasonably accommodate a qualified person with a disability continues during the pandemic. Also, the specific reasonable accommodations may vary depending upon context. So, this is really good stuff from the EEOC.

E. Pandemic-Related Harassment Due to National Origin, Race, or Other Protected Characteristics

E.1.  What practical tools are available to employers to reduce and address workplace harassment that may arise as a result of the COVID-19 pandemic? (4/9/20)

Employers can help reduce the chance of harassment by explicitly communicating to the workforce that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited bases.

Practical anti-harassment tools provided by the EEOC for small businesses can be found here:

  • Anti-harassment policy tipsfor small businesses
  • Select Task Force on the Study of Harassment in the Workplace (includes detailed recommendations and tools to aid in designing effective anti-harassment policies; developing training curricula; implementing complaint, reporting, and investigation procedures; creating an organizational culture in which harassment is not tolerated):
    • report;
    • checklistsfor employers who want to reduce and address harassment in the workplace; and,
    • chart81of risk factors that lead to harassment and appropriate responses.

My thoughts: many courts have held, such as we have discussed here, that hostile work environment applies to persons with disabilities. So, just because everybody is working differently does not mean that the right of a person to be free from a hostile work environment doesn’t continue.

 

My overall thoughts on the amended guidelines:

 

  1. See this blog entry and this blog entry.
  2. Many companies seeing that remote working is not so bad, may move more in that direction. Good policy reasons exist for it. For one thing, I read in the Wall Street Journal not too long ago that employee turnover dramatically increases once they have to commute more than 30 minutes each way. Remote working solves that problem. Also, it takes many cars off the road. For example, I just read in the Wall Street Journal yesterday that the city of Los Angeles pollution problem has gone way down since the lockdown. Of course, there are drawbacks to remote working. It will be up to each employer to figure this out going forward. Nevertheless, people with disabilities are going to remember all the accommodation that employers put in place during this pandemic and will keep that in mind as they go about making future reasonable accommodation requests. Certain professions lend themselves to remote working while others don’t. For example, lawyers easily lend themselves to remote working, especially those who do not litigate. However, the healthcare professions frequently do not. Again, I don’t think you can go wrong with following Samper whenever you are trying to assess whether attendance is an essential function of the job.
  3. What about the situation where a person associates with an individual (let’s say significant other), who has a higher chance of getting Covid-19 and that person requests an accommodation so as to not expose or increase the risk of his or her significant other to getting Covid-19. While it is absolutely true that a person requesting an accommodation because they associate with an individual with a disability is not entitled to that accommodation, it is also true that many courts are saying a denial of such an accommodation or a refusal to even engage in the interactive process is evidence of the mindset of the employer’s intent to discriminate.
  4. Remember, that for a regarded as claim all you need is a perception of the physical or mental impairment. You do not need to show anymore that the employer subjectively perceived a substantial limitation on a major life activity thanks to the amendments to the ADA. An employer does have a little play here because of Covid-19 being a direct threat. However, you can’t forget about regarded as. Engaging in the interactive process solves all kinds of problems. So, interactive process!!!!!!!
  5. If you are making disability related inquiries or doing medical exams, make sure they are narrowly focused on Covid-19 identification and transmission. If you go on a fishing expedition beyond that, trouble will likely ensue per Scott and EEOC’s TAM6.
  6. A person with Covid-19 if they are symptomatic may well be a person with an actual disability depending upon the severity of the symptoms. Also, a person who had Covid-19 may also be a person with a record of a disability, again depending upon the severity of the symptoms. Finally, having Covid-19 may lead to other disabilities. In all cases, you may see request for reasonable accommodations. If so, be sure to engage in the interactive process.
  7. If you are trying to extrapolate this guidance to title II and title III situations, be aware that the technical assistance memorandums for both of those titles also demand that medical exams and disability related inquiries be narrowly focused.