Happy Fourth of July week everyone. Hope everyone had a great Fourth of July. I am sure many are taking the week off or having an extended holiday. Have fun and be safe.

 

Today’s blog entry is a three in one. In particular, we will talk about how do you figure out when a temporary disability falls under the actual disability prong, the importance of the EEOC charge, and an upcoming case before the United States Supreme Court dealing with whether emotional distress damages are available under the Rehabilitation Act. As usual, the blog entry is divided into categories and they are: Hamilton v. Westchester County; EEOC charge is everything; and Rehabilitation Act come to the United States Supreme Court. There is not a thoughts/takeaways section because it is incorporated already into each section.

 

I

 

Hamilton v. Westchester County (Just When Is a Temporary Disability Protected under the Actual Disability Prong)

 

In this case, plaintiff dislocated his knee and tore his meniscus when he stepped on crumble concrete in the prison recreational yard. While the disability would have been temporary with proper medical care, he didn’t get that care and things went from bad to worse. The county defended on the grounds that his disability was temporary, and the District Court dismissed his ADA claim on that ground. Plaintiff appealed.

 

After laying out what is needed for a prima facie case in a title II claim and noting that title II claims are driven by the question of whether meaningful access existed, the court notes that the ADA has been held by the Supreme Court to apply to prisons. The court then goes on to talk about how the ADA was interpreted prior to its amendments and how the amendments to the ADA expanded both definitional terms and by way of regulation relaxed temporal requirements with respect to whether a temporary disability could be an actual disability. The court joined the First, Fourth, and Seventh Circuits in holding that a short-term injury can now qualify as an actual disability under the ADA. In other words, a plaintiff’s actual disability claim under the ADA does not fail solely because he failed to state that his or her disability will be permanent or chronic or because he or she fails to indicate the duration or long-term impact of the impairment. The court goes on to note that the expansion for temporary disabilities by way of regulation contrasts with the exception that exist with respect to a person regarding as having a disability. As we know, with respect to the regarded as prong a person does not have protection under that prong if the impairment is both objectively transitory, lasting six months or less, and minor. 28 C.F.R. §35.108(f)(2). However, 28 C.F.R. §35.108(d)(1)(ix) now includes temporary disability as actionable impairments under both the actual and record of prongs. Here, the complaint alleged that the plaintiff sustained a dislocated knee and torn meniscus, suffered from excruciating pain, his injuries were not properly treated, and he was placed in situation where his injuries were aggravated.

 

So, what is the standard for determining when a temporary disability becomes an actual disability under the ADA as amended? The answer comes from a footnote where the court cites to a First Circuit decision holding that a temporary disability falls under the actual disability prong if it is sufficiently severe. They also cite to a decision we discussed here from the Fourth Circuit that also adopted in essence a sufficiently severe standard. However, just what is meant by sufficiently severe? I think it is instructive that the Second Circuit discusses the transitory and minor exception for regarded as as a way of illustrating that temporary disabilities can be covered under the actual disability prong but not the regarded as prong. I remain convinced that as a matter of preventive law if you are trying to figure out whether a temporary disability is an actual disability, asking yourself the question of whether the disability is both transitory AND minor will solve a lot of problems. Again, that isn’t the legal standard rather but good preventive law. We do have cases now saying that the legal standard is, “sufficiently severe.” However, “sufficiently severe,” isn’t really very helpful. Hence, the preventive approach of asking whether the disability is transitory, lasting less than six months, AND minor makes a lot of sense.

 

II

EEOC Charge Is Everything

 

In Yarbough v. Kaiser Permanente , a decision from the Northern District of Georgia decided on June 29, 2021 by United States Magistrate Judge Christopher Bly, a person filed a class-action suit after previously submitting an EEOC charge containing no indication that a class action was involved. The defense moved to dismiss the class action charges because the EEOC claim did not put anyone on notice that a class action was coming. The magistrate judge said that nothing in the charge indicated a class action was forthcoming. As a result, the charge did not provide notice to the EEOC and the employer that the discrimination alleged was more than an isolated act and therefore could not be used to bring class action allegations. The moral of the story is the EEOC charge has to closely match up with the complaint. Also, while anyone can file an EEOC charge, it is helpful to have a lawyer do it as they are aware of how the charge and any subsequent complaint have to match up with each other. Also, even if you can get by the EEOC charge and the complaint matching up with each other, class actions with respect to disability discrimination are incredibly difficult to pursue, as we have discussed here for example.

 

III

Rehabilitation Act Comes to the Supreme Court

 

Just last week, the United States Supreme Court agreed to hear the case of Cummings v. Premier Rehab Keller, a 2020 decision from the Fifth Circuit holding that emotional distress damages are not available under the Rehabilitation Act. That decision takes the opposite point of view from the 11th Circuit decision of 2007 in Sheely v. MRI Radiology Network, here, holding that emotional distress damages are available under the Rehabilitation Act. Having just read the 11th Circuit decision, the two decisions cannot be reconciled and are clearly in conflict with each other. So, no surprise that the Supreme Court stepped in to resolve the conflict. Both cases turn on how do you interpret Barnes v. Gorman. Barnes holds that compensatory damages are available under the Rehabilitation Act but not punitive damages. Since title II of the ADA is tied into the Rehabilitation Act remedies, you get the same answer as Barnes for violations of title II of the ADA. However, Barnes does not answer the question of whether a subset of compensatory damages, emotional distress damages, are available. Back in 2007, the 11th Circuit said they were. In June 2020, the Fifth Circuit said they were not. It all comes down to whether the cause of action is something that an entity is on notice of when they agreed to take federal funds. The 11th Circuit says that emotional distress damages are clearly foreseeable when there is discrimination under the Rehabilitation Act. They also say that there is a presumption that all remedies apply when a wrong is committed under a federal statute. On the other hand, the Fifth Circuit says that the 11th Circuit is confusing notice with whether damages are foreseeable. They are not at all the same thing says the Fifth Circuit. At this stage, I have no idea how the Supreme Court is going to deal with this situation. The case of course has huge implications for persons with disabilities pursuing title II or Rehabilitation Act claims for both the person with a disability and for lawyers thinking about taking such cases on. Stay tuned.

 

Have a great Fourth of July week everybody!

Today’s blog entry discusses the real issue of whether ADA serial plaintiffs, architectural or Internet, and ADA testers will continue to have standing with respect to claims filed in federal court. The case of the day actually has nothing to do with disability discrimination, but in a sense it has everything to do with disability discrimination. The case is TransUnion LLC v. Ramirez, here, decided by the United States Supreme Court on June 25, 2021. As usual, the blog entry is divided into categories and they are: facts; Justice Kavanaugh’s general discussion of standing principles; Justice Kavanaugh’s discussion of how those principles apply to standing in this case; Justice Thomas’s dissent; Justice Kagan’s dissent; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

Before jumping into this particular case, I should point out that the Supreme Court came down with another decision this week of interest. It also has nothing to do with disability discrimination except that it affects the regulation of any K-12 student’s off-campus behavior. That case is Mahanoy Area School District v. B.L., here, where the Supreme Court held that if you are going to go after a student for off-campus speech you better have your ducks in a row every which way to Sunday so to speak as the chances of the school being successful of going after that student successfully are not great. I haven’t decided whether to blog on that case yet, but I might do so in the future.

 

I

Facts

 

Beginning in 2002, TransUnion introduced an Office of Foreign Assets Control name screen alert product. Individuals on the Office of Foreign Assets Control list are terrorists, drug traffickers or other serious criminals. It is generally unlawful to transact business with anyone on that list. TransUnion created the Office of Foreign Assets Control name screen alert to help businesses avoid transacting with individuals on the Office of Foreign Assets Control list. While the intention was good, the implementation was not so great. What TransUnion did was if the consumer’s first and last name matched the first and last name of an individual on the Office of Foreign Assets Control’s list, then TransUnion would place an alert on the credit report indicating that the consumer’s name was a potential match to a name on the Office of Foreign Assets Control list. TransUnion did not compare any data other than first and last names. Not surprisingly, TransUnion’s name screen product generated many false positives. Thousands of law-abiding Americans happen to share first and last names with one of the terrorists, drug traffickers, or serious criminals on the Office of Foreign Assets Control’s list of specifically designated nationals. One of those individuals was a gentleman named Sergio Ramirez who tried to purchase a car but could not do so because his name was on the list. He actually had to have his wife purchase the car in her own name. The next day the plaintiff called TransUnion and requested a copy of his credit file. They sent him a mailing the same day that included his credit file and the statutorily required summary of rights prepared by the Consumer Finance Protection Bureau. The mailing did not mention the Office of Foreign Assets Control alert in Ramirez’s file. The following day, TransUnion sent Ramirez a second mailing alerting him that his name was considered a potential match to names on the Office of Foreign Assets Control list. The second mailing did not include any additional copy of the summary of rights. Concerned about the mailings, Ramirez contacted a lawyer and ultimately canceled a planned trip to Mexico. TransUnion eventually removed the Office of Foreign Assets Control alert from his file. He then brought suit alleging three violations of the Fair Credit Reporting Act. That suit was expanded to include a class action of all people in the United States to whom TransUnion sent a mailing during January 1, 2011 to July 26, 2011 that was similar in the form to the second mailing that the plaintiff received. That entire class contained 8185 members including the plaintiff. Of that class, only 1853 members had their credit report disseminated by TransUnion to potential creditors during the period from January 1, 2011, to July 26, 2011. After six days of trial, the jury awarded each class member $984.22 in statutory damages and $6353.08 in punitive damages for a total award of more than $60 million.

 

II

Justice Kavanaugh on General Principles of Standing (Majority Opinion Joined by Chief Justice Roberts, Justice Alito, Justice Barrett, and Justice Gorsuch).

 

 

  1. For there to be a case or Controversy under article III, a plaintiff must have a personal stake in the case.
  2. Answering whether a person has a personal stake in the case involves a plaintiff showing: 1) that he or she suffered an injury in fact that is concrete, particularized, and actual or imminent; 2) that the injury was likely caused by the defendant; and 3) that the injury would likely be redressed by judicial relief.
  3. Requiring a plaintiff to demonstrate a concrete and particularized injury caused by the defendant that is redressable by the courts and ensures that federal courts decide only the rights of individuals and that federal courts exercise their proper function in a limited and separated government.
  4. Federal courts do not adjudicate hypothetical abstract disputes nor do they possess a roving commission to opine on every legal question. They also do not exercise general legal oversight of the legislative and executive branches or private entities. Finally, they do not issue advisory opinions.
  5. A federal court may resolve only a real controversy with real impact on real persons.
  6. Courts need to assess whether the alleged injury to the plaintiff has a close relationship to a harm traditionally recognized as providing a basis for a lawsuit in American courts. That is, the question is whether plaintiffs have identified a close historical or common-law analog the injuries alleged.
  7. Certain injuries readily qualify as concrete injuries under article III of the U.S. Constitution. The most obvious such injuries are traditional tangible harms, such as physical harms and monetary harms. If a defendant has caused physical or monetary injury to the plaintiff, the plaintiff has suffered a concrete injury.
  8. Intangible harms can also be concrete. Chief among those harms are those injuries with a close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts, such as reputational harms, disclosure of private information, and intrusion upon seclusion.
  9. Traditional harms may also include harms specified by the Constitution itself.
  10. Courts must afford due respect to Congress’s decision to impose a statutory prohibition obligation on the defendant and grant a plaintiff a cause of action to sue over the defendant’s violation of that statutory prohibition obligation.
  11. Congress is not permitted to enact an injury into existence using lawmaking power to transform something that is not remotely harmful into something that is.
  12. The Supreme Court has previously rejected the proposition that a plaintiff automatically satisfies the injury in fact requirement whenever a statute grants a person a statutory right that purports to authorize that person to sue to vindicate that right. That is, article III standing requires a concrete injury even in the context of a statutory violation. In other words, courts cannot treat an injury as concrete based only on Congress’s say-so.
  13. So, an important distinction exists between a statutory cause of action and whether a concrete harm exists because of the defendant’s violation of federal law. In other words an injury in law is not an injury in fact. You could have an injury in law without the person being concretely harmed.
  14. An uninjured plaintiff who is not seeking to remedy any harm to herself but instead is merely seeking to ensure a defendant’s compliance with regulatory law does not have standing. The example the Supreme Court used is a person in Hawaii suing for environmental pollution in Maine.
  15. Absent a concrete harm requirement, Congress could authorize virtually any citizen to bring statutory damages suit against virtually any defendant that violated virtually any federal law. Such an expansive understanding of article III flouts constitutional text, history, and precedent. In other words, a public interest that mandates private entities to comply with the law cannot be converted into an individual right by a statute that permits all citizens who suffer no distinctive concrete harm to sue.
  16. A regime where Congress could freely authorize unharmed plaintiff’s to sue defendant for violating federal law violates article III and also infringes upon the executive branch’s article II authority.
  17. In a footnote, the Court said that concreteness and particularization are separate requirements and you have to have both.
  18. The concrete harm requirement is essential to the Constitution’s separation of powers.

 

III

Justice Kavanaugh’s Discussion of How the General Principles of Standing Apply to This Case

 

  1. Plaintiff bears the burden of demonstrating they have standing.
  2. Standing is something that must be maintained at all stages of the litigation.
  3. Plaintiffs must demonstrate standing for each claim they allege and for each form of relief they seek.
  4. Under long-standing American law, a person is injured when a defamatory statement that would subject him to hatred, contempt, ridicule is published to a third party. Here, TransUnion provided third parties with credit reports containing alerts that labeled the class members as potential terrorists, drug traffickers, or serious criminals. Therefore, the 1853 class members suffered a harm with a close relationship to the harm associated with the tort of defamation and have standing because they suffered a concrete harm qualifying as an injury in fact.
  5. The harm from being labeled a potential terrorists bears a close relationship to the harm from being labeled a terrorist. That is, the harm from the misleading statement of this kind bears a sufficiently close relationship to the harm from a false and defamatory statement.
  6. With respect to the remaining 6332 class members, the parties stipulated that none of their credit information was provided to any potential creditors during the class period. In other words, while inaccurate written information was in the credit file, it didn’t make any sound because it wasn’t disseminated.
  7. Publication is essential to liability in a suit for defamation.
  8. There is no historical or common-law analog where the mere existence of inaccurate information, absent dissemination, amounts to a concrete injury. In other words, the mere existence of inaccurate information in a database is insufficient to confer article III standing.
  9. The mere presence of an inaccuracy in an internal credit file if not disclosed to a third party causes no concrete harm. That is, a letter not sent to anyone does not harm anyone no matter how insulting the letter is.
  10. Injunctive relief is a different matter entirely. When it comes to injunctive relief, a person exposed to a risk of future harm may pursue forward-looking injunctive relief to prevent the harm from occurring at least so long at the risk of harm is sufficiently imminent and substantial.
  11. When it comes to damages, the mere risk of future harm by itself does not qualify as a concrete harm unless the exposure of the risk of future harm itself causes a separate concrete harm.
  12. Libel and slander require evidence of publication.
  13. The risk of future harm for the 6332 class members that did not have the report disseminated is too speculative to support article III standing.
  14. Plaintiff did not demonstrate a sufficient likelihood that their individual credit information would be requested by third-party businesses and provided by TransUnion during the relevant time period. They also did not demonstrate that there was a sufficient likelihood that TransUnion would otherwise intentionally or accidentally release the information to third parties.
  15. Plaintiff did not present any evidence that the 6332 class members even knew that there was an Office of Foreign Assets Control alert in their internal TransUnion credit files.
  16. Plaintiffs have the burden to prove the trial that the reports were actually sent to third-party businesses.
  17. Plaintiff put forth no evidence that they tried to correct their credit files and thereby prevent dissemination of the misleading reports. They also made no effort to explain how they were prevented from contacting TransUnion to correct any errors before misleading credit reports were disseminated that third-party businesses.

 

IV

 

Justice Thomas’s Dissent (Joined by Justice Kagan, Justice Breyer, and Justice Sotomayor)

 

  1. Even though TransUnion had a verdict against it for its sloppy practices with respect to the Office of Foreign Assets Control list product, TransUnion made very little change in its practices. All it did was require exact matches for names and add language saying the consumer was a potential match rather than saying the person was a match.
  2. At the time of the founding of the United States, whether a court possessed judicial power over an action with no showing of actual damages depended upon whether the plaintiff sought to enforce a right held privately by an individual or a duty owed broadly to the community.
  3. Where an individual of that time sought to sue someone for a violation of his private rights, the plaintiff needed only to allege the violation.
  4. When individuals sue based on violation of the duty owed broadly to the whole community, the person had to allege both a legal injury as well as damages. That distinction mattered not only for traditional common law rights, but also for newly created statutory ones.
  5. The principle that the violation of an individual right give rise to an actionable harm was widespread at the founding of the United States.
  6. So long as a statute fixes a minimum of recovery, there would seem to be no doubt of the right of one who establishes a technical ground of action to recover this minimum sum without any specific showing of loss.
  7. Courts for centuries have held that injury and loss to a private right was enough to create a case or controversy.
  8. In this case, all the class members established the violation of his or her private rights. The jury found that TransUnion violated three separate duty created by statute. All three of those duties were owed to individuals and not to the community at large. That the duties were owed to individuals and not to the community at large is obvious from the language in the statute’s remedies provision, which uses language of “any person,” “that consumer,” and “liable to the consumer.”
  9. Injury in fact did not come into existence until 1970, 180 years after article III of the US Constitution was ratified.
  10. When injury in fact came into existence, it served as an additional way to get into federal court and not as a way to limit access to federal courts.
  11. The majority opinion takes the view that an injury in law is not an injury in fact. So no matter if the right is personal or if the legislature deemed the right worthy of legal protection, legislatures are constitutionally unable to offer to protection of the federal courts for anything other than money, bodily integrity, and anything else that the Supreme Court thinks looks close enough to rights existing at common law. The 1970s injury in fact theory has now displaced the traditional gateway into federal courts.
  12. Never before has the Supreme Court declared that legal injury is inherently insufficient to support standing. Also, the Supreme Court has never before declared that legislatures are constitutionally precluded from creating legal rights enforceable in federal courts if those rights deviate too far from there common-law roots.
  13. According to the majority opinion, courts alone now have the power to sift and weigh harms to decide whether they merit the federal judiciary’s attention.
  14. In the name of protecting the separation of powers, the majority opinion has relieved the legislature of its power to create and define rights.
  15. TransUnion’s misconduct is exactly the sort of thing that has long merited legal redress.
  16. The Supreme Court has previously recognized that the unlawful withholding of requested information causes a sufficiently distinct injury to provide standing to sue.
  17. The plaintiffs had a financial injury here because TransUnion charges clients extra to receive credit reports with the Office of Foreign Assets Control designation.
  18. The case is a strong example of the harm the Supreme Court identified as central to the Fairness Credit Reporting Act, i.e. the dissemination of false information and aligns closely with the harm that had traditionally been regarded as providing a basis for a lawsuit.
  19. 25% of the class had the alerts sent to potential creditors. Such a percentage is a sufficient degree of risk to meet the concreteness requirement. If 25% is not sufficient, then what is?
  20. The opinion that the majority opinion relies upon specifically said that their opinion did not mean that the risk of real harm cannot satisfy the requirement of concreteness. The Supreme Court also said in that decision that it was remanding the claim to the Ninth Circuit to consider whether the violations alleged entail a degree of risk sufficient to meet the concreteness requirement. Therefore, the theory that risk of harm matters only for injunctive relief is squarely foreclosed by that decision.
  21. In history, publication to even a single other party could be enough to give rise to suit.
  22. One only need to tap into common sense to know that receiving a letter identifying you as a potential drug trafficker terrorist is harmful. That is even more true when the information comes in the context of a credit report whose entire purpose is to demonstrate that a person can be trusted.
  23. If the sort of confusing and frustrating communication in this case is insufficient to establish a concrete injury, one has to wonder what could rise to that level. For example, what about being flagged as a potential child molester or a racist, a slur of some kind being put into the file, a credit score reduced because of race, etc. Previously, the Supreme Court has said that the inability to observe an animal species even for purely aesthetic purposes is a concrete harm. How do these examples not rise to that level? Also, how does a court go about picking and choosing the ones that do and do not rise to the level of concrete harms. Justice Thomas sees no way to engage in such a value laden inquiry without it devolving into pure policy judgments. Weighing the harm caused by specific facts and choosing remedies is a much better fit for legislatures and juries than for the Supreme Court.
  24. In a footnote, Justice Thomas said that the Supreme Court does not prohibit Congress from creating statutory rights for consumers by the majority opinion. Instead, it simply holds that federal courts lack jurisdiction to hear some of those cases. That combination of things might actually be a Pyrrhic victory for defendants because it may leave state courts that are not bound by the limitations of a case or controversy or other federal rules of standing even when they address issues of federal law as the sole forum for such cases when defendants find they are unable to seek removal to federal court as a result of the majority opinion. By declaring that federal courts lack jurisdiction, the Supreme Court has ensured the state courts will exercise exclusive jurisdiction over these sorts of class actions.

 

V

Justice Kagan’s Dissent

 

  1. The majority opinion transforms standing law from the doctrine of judicial modesty into a tool of judicial aggrandizement when it holds that a specific class of plaintiffs allowed by Congress to bring a lawsuit cannot do so under article III.
  2. To say that the resulting injuries in this case do not exist in the real world to inhabit a world that Justice Kagan does not know. Further, to make that claim in the face of Congress’s contrary judgment is to exceed the judiciary’s proper and properly limited role.
  3. Why is it so speculative that a company in the business of selling credit report to third parties will in fact sell credit reports to a third party?
  4. Justice Kagan continue to support the view that a concrete injury is required even in the context of a statutory violation and says such a view will lead to the same result as Justice Thomas’s approach in all but highly unusual cases.
  5. Congress is better suited than courts to determine when something is because of a harm or risk of harm in the real world. Therefore, courts should give deference to those congressional judgments.
  6. Overriding an authorization to sue is only appropriate when Congress could not reasonably have thought that a suit will contribute to compensating or preventing the harm at issue.

 

VI

Thoughts/Takeaways

 

  1. It is now more important than ever after this decision to take Iqbal/Twombly seriously if you are a plaintiff. Now, a plaintiff is very much going to want to throw the kitchen sink into their complaint and quite specifically so in order to show the court and the defendant that there is a very specific harm involved in the lawsuit that is very clearly a harm to the plaintiff.
  2. In footnote 4 of the majority opinion, Justice Kavanaugh says that this opinion does not address the distinct question of whether every class member must demonstrate standing before a court certifies a class. A plain reading of the majority opinion suggests that such a requirement may well be coming in the future.
  3. Statutory rights being violated are not enough for a claim to be in federal court. You also need a concrete injury AND a particularized injury.
  4. As justice Thomas points out, States can approach standing very differently from the federal courts. For example, as we discussed here, deterrence works in California. So, you may now see lots of disability discrimination cases alleging both violations of the California disability antidiscrimination law and the ADA that have to remain in California courts because a federal court would find that no standing exist as a result of the majority opinion in this case. As defendants prefer federal courts generally, this decision may actually benefit plaintiffs in states with disability antidiscrimination laws. For States without disability antidiscrimination laws, getting by standing when it comes to federal claims in federal courts is going to be much more difficult than it used to be after this decision.
  5. Even if Congress created a cause of action and a plaintiff alleges the prima facie case for that cause of action, federal courts have the right to throw the case out on standing grounds if they find there is no concrete or particularized harm involved. As the court said, you need both an injury in law and an injury in fact to proceed in federal courts.
  6. The burden of showing standing is on the plaintiff and must be maintained throughout the litigation.
  7. The majority opinion makes a distinction between damages and injunctive relief; a distinction that Justice Thomas does not buy. The distinction is important when it comes to the ADA, because title III of the ADA only allows for injunctive relief and attorney fees. So, does that mean serial plaintiffs, whether they be architectural or Internet accessibility, are not affected by this decision? I think they still are because under the majority opinion the harm must be still sufficiently imminent and substantial to proceed. The way court opinions get interpreted, I think it is quite likely that the concrete and particularization requirements of the majority opinion will be folded into whether an injunctive relief claim alleges claims that are sufficiently imminent and substantial to give a plaintiff standing. Look for what is required for sufficiently imminent and substantial in injunctive relief cases to eventually make its way to the United States Supreme Court.
  8. Justice Thomas’s jurisprudence can be a difficult thing to figure out. A very provocative book that takes an unusual approach to attempting to figuring out his jurisprudence is a book called the Enigma of Clarence Thomas. I highly recommend it if you are interested in trying to begin to get a handle on how justice Thomas approaches cases. I have read that book. I am not entirely sure it accomplishes what it sets out to do, but it is very interesting reading.
  9. It is a 5-4 decision and the Justices in the majority are strong believers in the roles of the courts. It will be interesting to see how this decision holds up over time as the Supreme Court evolves in its configuration because Justices can have different views as to just how broad the authority of courts are.
  10. Regardless of statutory rights alleged, look for defendants in all kinds of cases, including ones not involving class actions, to allege that plaintiff does not have standing even if their statutory rights were violated even assuming the allegations are true.
  11. Make sure you periodically check your credit report.
  12. Are courts really going to get into the business of saying that federal rights created by Congress are of no matter where there is a lack of concrete and particularized harms even where the plaintiff has clearly alleged a prima facie case for a particular statutory claim? It appears that will be the case.
  13. Specific harms alleging constitutional violations will get by the majority opinion.
  14. How much due respect must a court give to Congress’s decision on statutory rights is an open question.
  15. What does “not remotely harmful,” even mean?
  16. Where ADA testers are involved, look for the defense to argue lack of concrete and particularized harm per this case regardless of whether injunctive relief or damages are involved. The majority opinion clearly raises the question of whether ADA testers have standing when bringing ADA claims in federal court.
  17. Look for more ADA cases to be filed in state courts whenever possible and to stay there. Also look for a very peculiar situation where plaintiffs may allege when a defendant is trying to remove the case that they do not have standing under federal law per this decision, but they do have standing under state law. So, therefore the case should remain in state court and not be removed to federal court. A very odd argument indeed, but one this court sets up by its decision.

Today’s case explores the arguments as to why an adverse action is not necessary in failure to accommodate cases. As a bonus, it also explores how workers compensation exclusivity does not preempt a state’s disability antidiscrimination law. The case of the day is Richter v. Oakland Board of Education decided on June 8, 2021, by the New Jersey Supreme Court in a unanimous opinion. Most of the cases I write about are federal cases and not state ones. However, this case is an excellent read for understanding the arguments as to why a court would hold that an adverse action is not required in failure to accommodate claims. For those states with disability antidiscrimination laws, Georgia is not one of them, it also provides a good explanation as to why the exclusive remedies provisions of the workers compensation statute does not preempt disability discrimination claims under state law. As usual, blog entry is divided into categories and they are: facts; adverse action not required for failure to accommodate claims under New Jersey law; exclusive remedies provisions of the Worker’s Compensation act does not bar other claims for disability discrimination under the New Jersey Law against Discrimination; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Richter, a longtime type I diabetic and teacher, experienced a hypoglycemic event in the classroom because her work schedule prevented her from eating her lunch early enough in the day to maintain proper blood sugar levels. She fainted, hit her head on a laboratory table, and sustained serious and permanent life altering injuries, which are described in the opinion Throughout the school year she repeatedly attempted to have the school make reasonable accommodations so that she could eat lunch in a timely way and not put herself at risk. The school ignored those entreaties. They did grant the accommodation at one point in time but that did not stick for the entire year. Until the event, she continued to work as a teacher and no adverse action outside of the failure to accommodate was ever taken. She did file for workers compensation successfully where she received $18,940.94 for medical bills, $9792.47 for temporary disability benefits, and $77,200 in partial total permanent disability benefits. She also then filed under the New Jersey Law against Discrimination. Trial court granted summary judgment for the Board of Education but that was reversed on appeal. The Oakland Board of Education appealed to the New Jersey Supreme Court.

 

II

Adverse Actions Are Not Required for Failure to Accommodate Claims Arising under the New Jersey Law against Discrimination

 

  1. The New Jersey Law against Discrimination prohibits discrimination on the basis of disability.
  2. Although the New Jersey law does not explicitly address the reasonable accommodation requirement or claim, New Jersey courts have uniformly held that the law does require an employer to reasonably accommodate an employee’s disability. That requirement was codified in a regulation by the agency responsible for administering the law and promulgating regulations for its implementation and enforcement.
  3. Under the New Jersey administrative code, an employer must make a reasonable accommodation to the limitations of an employee who is a person with a disability unless an undue hardship is imposed on the operation of the business.
  4. In a prior case, the New Jersey Supreme Court said that it is entirely possible, though it probably would be a rare occurrence, for a person to have a failure to accommodate claim without an adverse action because some individuals requesting reasonable accommodations will continue to toil on even though their reasonable accommodation request are not addressed or the requests are denied.
  5. The elements of a failure to accommodate claim under New Jersey law are: 1) person is an individual with a disability or is perceived as having a disability as defined by the statute; 2) person is qualified to perform the essential functions of the job or was performing those essential functions with or without reasonable accommodation; and 3) the defendant failed to reasonably accommodate his or her disabilities. An adverse employment action does not appear in these elements of a failure to accommodate claim.
  6. Federal antidiscrimination cases provide a helpful source of interpretive authority.
  7. In interpreting the ADA, many federal courts have recited the elements of a failure to accommodate claim without mentioning a requirement of an adverse employment action.
  8. One circuit, the Third Circuit Court of Appeals, has said that adverse employment action includes refusing to make reasonable accommodation for plaintiff’s disabilities. The Eighth Circuit has done the same.
  9. The 10th Circuit has said that an adverse employment action is not a required element of a failure to accommodate claim. We discussed that case, Exby-Stolley v. Board of County Commissioners, here.
  10. The 10th Circuit in Exby-Stolley based its reasoning on its own failure to accommodate precedents, the precedents of no fewer than six circuits strongly suggesting that failure to accommodate claim do not require an adverse action, the plain text of the ADA, regulatory pronouncements of the EEOC, and common sense. With respect to common sense, the 10th Circuit Court of Appeals said that it would make little sense to require the showing of an adverse employment action as part of a failure to accommodate claim because it verges on the illogical to require plaintiffs in failure to accommodate claims to establish that their employer acted adversely toward them when the fundamental nature of the claim is the employer’s failure to act.
  11. Insistence on an adverse action in failure to accommodate claims does not serve the New Jersey Law against Discrimination broad remedial purposes.
  12. An adverse action requirement is not consistent with the obligation of employers to reasonably accommodate an employee with a disability.
  13. The overriding purpose of the New Jersey Law against Discrimination’s promise to eradicate obstacles in the workplace for people with disabilities is to make it possible for people with disability to work.
  14. Given that employers have an affirmative obligation to make reasonable accommodation, why should people who have requested but not received the reasonable accommodation from an employer have to wait for an adverse employment action to follow the employer’s denial or inaction-or refusal to even engage in an interactive dialogue about the request-in order to bring a complaint to compel the employer to do its affirmative obligation laid out by the regulatory scheme? Even posing the question answers the question.
  15. The breach of the duty can and should be addressable before an adverse employment consequence occurs.
  16. The wrongful act for purposes of a failure to accommodate claim is the employer’s failure to perform its duty and not the further adverse employment action that the employee suffers.
  17. The persevering employee trying to make do without a reasonable accommodation is not without his or her remedies, and a callous employer does not get to escape liability under the New Jersey Law against Discrimination for failing to perform its required duty to provide accommodation simply by declining to fire, demote, or take another form of adverse action against the employee. Such an approach essentially renders the reasonable accommodation requirement unenforceable in its own right and runs roughshod over the legislature’s stated intent to eradicate discrimination and make the workplace hospitable for persons with disabilities.
  18. An employer’s inaction, silence, or inadequate response to a reasonable accommodation request is an omission that can give rise to a cause of action. In other words, a failure to accommodate claim is not dependent on causing harm to the employee through an adverse employment action.
  19. The employer of an employee suffering consequences from the employer’s failure to accommodate should not escape liability under New Jersey Law against Discrimination merely because those consequences do not fit neatly into a definition of adverse employment action.
  20. While a lack of demonstrable consequences-whether in the form of an adverse action, of injuries like those sustained by Richter or of some other type-might affect the damages an employee is entitled to, an employer’s failure to accommodate is in and of itself and actionable harm.
  21. Courts holding that the failure to reasonably accommodate is the adverse action winds up being a matter of form over substance. Such analysis results in the same outcome for the plaintiff’s ability to proceed with the claim as when the element is not required at all. Accordingly, there is no need to add additional formalistic hurdles to a failure to accommodate claim.
  22. Since providing a reasonable accommodation is an obligation of the employer, it makes little sense to include the adverse employment action element even in form. The better and simpler course is to recognize that an adverse employment action is not an element of a failure to accommodate claim.

 

III

Does the Exclusive Remedies Provisions of Workers Compensation Schemes Bar a Disability Discrimination Suit under the New Jersey Law against Discrimination

 

  1. Enacted in 1911, the New Jersey Worker’s Compensation Act amounted to a historic trade-off where employees relinquish the right to pursue common law remedies in exchange for automatic entitlement to certain, but reduced, benefits whenever they suffered injury by accident arising out of and in the course of employment.
  2. The New Jersey Worker’s Compensation Act has an exception for intentional wrongs.
  3. In all of the prior cases discussing the intentional wrong exception, the injured employee brought common law claims against their employer as opposed to statutory claims.
  4. The purpose of the New Jersey Law against Discrimination is no less than the eradication of the cancer of discrimination in our society.
  5. The New Jersey Law against Discrimination is given liberal construction because the more broadly it is applied, the greater its anti-discriminatory impact.
  6. In 1990, the New Jersey Law against Discrimination was amended to add common law remedies for a New Jersey Law against Discrimination statutory violation. In amending the statute, the legislature noted that people who suffer discrimination suffer a myriad of personal hardships including: economic loss; time loss; physical and emotional distress; illness; homelessness; other irreparable harm resulting from the strain of employment controversy; relocation; search and moving difficulty; anxiety; uncertainty; planning difficulties; career, education, family, and social disruption; and adjustment problems. The legislature goes on to say that compensatory and punitive damages need to be available to all persons protected by the act and that the act must be liberally construed in combination with other protections available under the laws of New Jersey.
  7. Prior New Jersey Supreme Court cases have dealt with the issue of what happens when other statutes are implicated when Worker’s Compensation is also involved. In those cases, the New Jersey Supreme Court held that the workers compensation scheme did not trump the other statute.
  8. The workers compensation statute was in place when the New Jersey Law against Discrimination was enacted when the legislature stated clearly that its intent was for the New Jersey Law against Discrimination to be treated as supplemental to other remedies. The legislature certainly would have been aware of the Worker’s Compensation Act when it included such strong direction and when it added the common law remedies to the New Jersey Law against Discrimination in 1990.
  9. The New Jersey Law against Discrimination, law remedies made available by way of the 1990 amendments do not pose a conflict with the Worker’s Compensation act. That is, each statute operates to fulfill different purposes, both protective of workers in the workplace. The statutes function cumulatively and complementarily and not in tension, much less in conflict, with each other.
  10. The facts of this case illustrate not only how the two statutory schemes operate harmoniously, but why it is important that they do so.
  11. Richter’s disability discrimination claim is not duplicative of the type of claim whose regress it secured to the Worker’s Compensation Act and should not be regarded as subordinate to the Worker’s Compensation Act exclusive remedy feature. That is, the New Jersey Law against Discrimination provides relief under state statute for a different workplace wrong.
  12. In a footnote, the New Jersey Supreme Court noted that it has been understood that state Worker’s Compensation exclusivity provisions do not bar claims brought under federal civil rights laws because to do so would violate the supremacy clause. While the supremacy clause is not involved here, the New Jersey Law against Discrimination’s broad remedial purposes and the wide scope of its coverage for disabilities as compared to the ADA an expansive view of protecting the rights of people with disabilities in the workplace. Holding that the New Jersey Law against Discrimination claims would be barred by the Worker’s Compensation Act would have the peculiar effect of rendering the New Jersey law less protective than the ADA. That is not something the New Jersey Supreme Court wants to do because it would depart from their precedent.
  13. The two legislative acts provide relief for separate wrongs and can coexist in harmony with the purposes of each being fulfilled. Indeed, the two statutory schemes, when harmonized, operate to prevent double recovery. With double recovery averted, no possible conflict exists. So, the full throated pursuit of remedies available under the New Jersey Law against Discrimination for disability discrimination get to proceed unencumbered by the Worker’s Compensation Act exclusivity bar.

 

IV

Thoughts/Takeaways

 

  1. I realize that this is a decision based upon New Jersey law. However, the case does a good of a job as I have seen with respect to laying out why a failure to accommodate case should not have an adverse action requirement.
  2. For those states with antidiscrimination laws on the basis of disability, this case also does an excellent job of laying out why a state’s disability antidiscrimination law is not preempted by Worker’s Compensation statutes.
  3. Taking away any adverse action requirement in failure to accommodate cases, makes getting the interactive process right, which we discussed here, even more important than it already is. It is already plenty important and going to become more so.
  4. A person in need of accommodations who has the request ignored or denied has undoubtedly suffered an action adverse to that individual. Real harm as discussed in ¶ III(6) of this blog entry can ensue when an accommodation is wrongfully withheld. Adverse action in the legal sense means something else, which is why the New Jersey Supreme Court said it wasn’t necessary. It is also why it is not a leap for some courts to say that an adverse action in the legal sense occurs by denying the accommodation.
  5. Whether failure to accommodate cases require an adverse action beyond the failure to accommodate will undoubtedly go to the United States Supreme Court. Normally, I would say that the person with the disability would be up against it because it is an employment situation and the United States Supreme Court generally does not favor the person with a disability in employment situations. However, if there was ever a case where there United States Supreme Court would favor a person with a disability in an employment situation it would be a case like this.

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

 

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

 

I

Highlights of the CDC Guidance: Fully Vaccinated Campuses

 

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

 

II

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

 

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

 

III

General Consideration for All IHE

 

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

 

IV

Thoughts/Takeaways

 

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

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

 

I

Facts

 

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

 

II

Is Naomi Osaka a Person with a Disability?

 

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

 

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

 

III

Otherwise Qualified/Qualified Is Not a Thing in Title III

 

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

 

IV

Is the WTA a Union?

 

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

 

V

Is the WTA a Place of Public Accommodation?

 

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

 

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

 

VI

What about the Interactive Process?

 

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

 

VII

Remedies

 

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

 

VIII

What Accommodations Might Be Possible?

 

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

 

IX

Concluding thoughts/takeaways

 

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

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

COVID-19 Vaccinations:  EEO Overview

K.1.   Under the ADA, Title VII, and other federal employment nondiscrimination laws, may an employer require all employees physically entering the workplace to be vaccinated for COVID-19?    (5/28/21)

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

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

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

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

 

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

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

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

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

 

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

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

Employers may provide employees and their family members with information to educate them about COVID-19 vaccines, raise awareness about the benefits of vaccination, and address common questions and concerns.  Also, under certain circumstances employers may offer incentives to employees who receive COVID-19 vaccines, as discussed in K.16 – K. 21100187188202203.  As of May 2021, the federal government is providing vaccines at no cost to everyone ages 12 and older.

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

  • The federal government’s online vaccines.gov101188189203204 site can identify vaccination sites anywhere in the country (or https://www.vacunas.gov102189190204205 for Spanish).  Individuals also can text their zip code to “GETVAX” (438829) – or “VACUNA” (822862) for Spanish – to find three vaccination locations near them.
  • CDC’s website offers a link to a listing of local health departments103190191205206, which can provide more information about local vaccination efforts.
  • In addition, the CDC offers background information for employers about workplace vaccination programs104191192206207. The CDC provides a complete communication “tool kit” for employers to use with their workforce to educate people about getting the COVID-19 vaccine.  (Although originally written for essential workers, it is useful for all workers.)   See CDC’s Essential Workers COVID-19 Toolkit105192193207208.  Employers should provide the contact information of a management representative for employees who need to request a reasonable accommodation for a disability or religious belief, practice, or observance or to ensure nondiscrimination for an employee who is pregnant.
  • Some employees may not have reliable access to the internet to identify nearby vaccination locations or may speak no or limited English and find it difficult to make an appointment for a vaccine over the phone. The CDC operates a toll-free telephone line that can provide assistance in many languages for individuals seeking more information about vaccinations: 800-232-4636; TTY 888-232-6348.
  • Some employees also may require assistance with transportation to vaccination sites. Employers may gather and disseminate information to their employees on low-cost and no-cost transportation resources available in their community serving vaccination sites and offer time-off for vaccination, particularly if transportation is not readily available outside regular work hours.

Thoughts/takeaways: Nothing to add here.

General

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

Yes.  The ADA requires an employer to maintain the confidentiality of employee medical information, such as documentation or other confirmation of COVID-19 vaccination.  This ADA confidentiality requirement applies regardless of where the employee gets the vaccination.  Although the EEO laws themselves do not prevent employers from requiring employees to bring in documentation or other confirmation of vaccination, this information, like all medical information, must be kept confidential and stored separately from the employee’s personnel files under the ADA.

 

Thoughts/takeaways: This particular question raises the important point that Covid-19 information must be kept confidential under the ADA. That means not only keeping it confidential but also storing it separately from the employee’s personnel files.

Mandatory Employer Vaccination Programs

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

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

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

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

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

 

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

 

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

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

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

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

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

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

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

 

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

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

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

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

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

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

 

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

Voluntary Employer Vaccination Programs

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

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

 

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

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

No.  When an employer asks employees whether they obtained a COVID-19 vaccine from a third party in the community, such as a pharmacy, personal health care provider, or public clinic, the employer is not asking a question that is likely to disclose the existence of a disability; there are many reasons an employee may not show documentation or other confirmation of vaccination in the community besides having a disability.  Therefore, requesting documentation or other confirmation of vaccination by a third party in the community is not a disability-related inquiry under the ADA, and the ADA’s rules about such inquiries do not apply.

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

 

Thoughts/takeaways: Nothing to add here.

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

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

 

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

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

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

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

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

 

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

Title VII and COVID-19 Vaccinations

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

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

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

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

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

 

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

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

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

If an employee seeks an exemption from a vaccine requirement due to pregnancy, the employer must ensure that the employee is not being discriminated against compared to other employees similar in their ability or inability to work.  This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent such modifications are provided for other employees who are similar in their ability or inability to work. Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII119211212226227.

 

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

GINA And COVID-19 Vaccinations

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

 

Thoughts/takeaways: nothing to add here.

 

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

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

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

 

Thoughts/takeaways: nothing to add here.

K.15.  Is Title II of GINA implicated when an employer requires employees to provide documentation or other confirmation that they received a vaccination from a doctor, pharmacy, health agency, or another health care provider in the community? (12/16/20, updated 5/28/21)

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

 

Thoughts/takeaways: nothing to add here.

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

ADA:  Employer Incentives for Voluntary COVID-19 Vaccinations

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

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

 

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

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

Yes, if any incentive (which includes both rewards and penalties) is not so substantial as to be coercive.  Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information. As explained in K.16., however, this incentive limitation does not apply if an employer offers an incentive to employees to voluntarily provide documentation or other confirmation that they received a COVID-19 vaccination on their own from a third-party provider that is not their employer or an agent of their employer.

 

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

GINA:  Employer Incentives for Voluntary COVID-19 Vaccinations

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

Yes.  Under GINA, an employer may offer an incentive to employees to provide documentation or other confirmation from a third party not acting on the employer’s behalf, such as a pharmacy or health department, that employees or their family members have been vaccinated.  If employers ask an employee to show documentation or other confirmation that the employee or a family member has been vaccinated, it is not an unlawful request for genetic information under GINA because the fact that someone received a vaccination is not information about the manifestation of a disease or disorder in a family member (known as family medical history under GINA), nor is it any other form of genetic information. GINA’s restrictions on employers acquiring genetic information (including those prohibiting incentives in exchange for genetic information), therefore, do not apply.

 

Thoughts/takeaways: nothing to add here.

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

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

 

Thoughts/takeaways: nothing to add here.

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

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

 

Thoughts/takeaways: nothing to add here.

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

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

 

Thoughts/takeaways: nothing to add here.

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

 

I

Facts Taken Directly from the Opinion Excepting Materials in Brackets Added at the Very End of This Section.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

II

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

 

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

 

III

The Labor Management Relations Act Does Not Preempt ADA Claims

 

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

 

IV

The CBA Does Not Require Arbitration of the Claims

 

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

 

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

 

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

 

V

Plaintiff Has Standing to Pursue His Claim

 

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

 

VI

Failure to Accommodate Claims Do Not Require an Independent Adverse Action

 

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

 

VII

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

 

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

 

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

 

VIII

 

Thoughts/Takeaways

 

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

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

 

I

The CDC Guidelines

 

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

 

II

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

 

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

 

III

Thoughts/Takeaways

 

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

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

 

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

 

I

Facts

 

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

 

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

 

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

 

II

Association Standing

 

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

 

II

Burden of Proof Readily Achievable

 

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

 

III

Thoughts/Takeaways

 

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

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

 

I

Facts

 

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

 

II

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

 

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

 

III

Thoughts/Takeaways

 

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