In a prior blog entry, here, I discussed how there is an opportunity for plaintiff lawyers when it comes to medical licensing boards and professional recovery programs. On February 2, 2022, that opportunity only increased as a result of a letter from the Department of Justice to the Supreme Court of Pennsylvania and its Administrative Office of Pennsylvania courts. The Pennsylvania courts frequently prohibit and sometimes limit the use of disability related medication to treat opioid use disorder (OUD) by individuals under their supervision.  The DOJ believes that such policies violate the ADA in several different ways. This letter has absolute huge implications because professional recovery programs frequently insist on abstinence as a condition of completing their programs. In many professional recovery programs, if the individual does not prove abstinence through an elaborate testing ritual over a period of many years, their license to practice their healthcare profession is severely at risk. As usual, the blog entry is divided into categories and they are: OUD treatment possibilities; the ADA violation by Pennsylvania courts; corrective measures needing to be taken by the Pennsylvania courts; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

OUD Treatment Possibilities

 

When it comes to treating drug addiction, everybody thinks of twelve-step programs. However, those programs do not work for everybody. When it comes to treating opioid use disorder, there are medications approved by the Food and Drug Administration that are proven effective in treating OUD, including methadone, naltrexone, and buprenorphine. Methadone and buprenorphine help diminish the effect of physical dependency and opioids, such as withdrawal symptoms and craving, by activating the same opioid receptors in the brain targeted by prescription or illicit opioid without producing euphoria. Naltrexone treats OUD by blocking opioid receptors and thereby preventing rewarding effects such as euphoria or pain relief. When taken as prescribed these medications are safe and effective.

 

How long a patient receives the medication is tailored to the needs of each patient and sometimes can be indefinite. According to the US Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, OUD medication can be taken on a short or long-term basis, including as part of medically supervised withdrawal and as maintenance treatment. The best results occur when patients receive medication for as long as it provides a benefit. The medication gives people the time and ability to make necessary life changes associated with long-term remission and recovery, minimizes cravings and withdrawal symptoms, and lets people better manage other aspect of their life, such as parenting, attending school, or working.

 

The US Department of Health and Human Services Substance Abuse and Mental Health Services Administration cautioned that patients who discontinue OUD medication generally return to illicit opioid use. If a patient plans to stop using those medications, the Department of Health and Human Services Substance Abuse and Mental Health Services Administration advises that they and their providers base decisions on knowledge of the evidence base for the use of these medication, individualized assessment, and an individualized treatment plan they collaboratively develop and agree upon. Arbitrary time limits on the duration of treatment with OUD medication is not advisable.

 

II

The ADA Violation by Pennsylvania Courts

 

DOJ singled out the Jefferson County Court of Common Pleas, the Northumberland County Court of Common Pleas, and County treatment courts for requiring abstinence or severely limiting the use of OUD medications for people who were benefiting from such medications but had to forgo those medications in order to participate in the court programs.

 

The DOJ says violations of the ADA by such practices are numerous, including:

  1. Discriminating against a person because that person takes medication to treat a disability.
  2. Denying people equal opportunity to benefit from its programs because of their disability by requiring under threat of incarceration that they stop taking medication they had been legally prescribed to take.
  3. With respect to a person that tried to stay on the medication, the drug court violated the ADA by denying access to programming available to other participants, subjecting her to more stringent supervision and treatment requirements, and substantially delaying her progress through the drug court program despite meeting the criteria for advancement.
  4. The tapering off requirements imposed by the Jefferson and Northumberland County Court of Common Pleas penalized individuals for their disabilities and were not justified by any individualized medical or security assessments.
  5. Imposed an eligibility criterion that screens out or tend to screen out individuals with OUD thereby preventing them from fully and equally enjoying the court’s programs when the criterion is not necessary for the provision of those programs. That is, the policies requiring individuals to stop using buprenorphine were not necessary to ensure that they or other individuals under the court supervision achieved stability and sustainable sobriety and avoided recidivating. In fact, the doctors of these individuals had prescribed that medication because the individuals had struggled to remain sober without the assistance of that medication. The treatment experiences of those individuals aligned with research showing that long-term use of OUD medication minimized cravings and withdrawal symptoms. It also lets individual better manage other aspect of their lives, including parenting, attending school, and working.
  6. The practices of the Pennsylvania courts constitute discriminatory methods of administration in violation of title II of the ADA. The bans and limitations imposed by the courts subject qualified individuals with OUD to discrimination and impair or defeat accomplishment of the objectives of the very programs in which those individuals participate.

 

III

Corrective Measures Needing to Be Taken By the Pennsylvania Courts

 

  1. The Pennsylvania courts must adopt or revise written policies to explicitly state that none of their courts can discriminate against, exclude from participation, or deny the benefits of their services, program, or activities-including County court proceeding, probationary program, and treatment to qualified individuals with disability because they have OUD.
  2. Identify an ADA coordinator responsible for monitoring court program, training court staff, and overseeing investigations and resolutions of ADA complaints or grievances.
  3. Update their complaint process as needed to ensure that ADA related complaints filed against any court in the Pennsylvania court system are promptly reviewed, investigated and addressed by appropriate action, and that the results of the review are provided in a timely manner each individual complainant.
  4. Appropriately train and educate all court staff about opioid use disorder and the nondiscrimination requirements of title II of the ADA.
  5. Pay compensatory damages to the complainant’s and other aggrieved individuals for injuries caused by the county court actions described in the letter.
  6. Provide the United States with written status reports setting forth all the steps taken to comply with these requirements, including the dates on which each step was taken, and, where applicable, information sufficient to demonstrate compliance.

 

 

IV

Thoughts/Takeaways

 

  1. The letter is essentially a demand letter. If the Pennsylvania courts do not agree to cooperate or negotiations are not successful, the United States may pursue further action under 28 C.F.R. §§35.173, 35.174.
  2. The people making the complaint are free to file their own private lawsuits.
  3. There are court decisions out there saying that abstinence only is a violation of the First Amendment. See this case for example.
  4. The DOJ is now on record that imposing abstinence only requirements on people dealing with addiction when an individualized analysis says other approaches work for an individual with the addiction, violates the ADA.
  5. Professional recovery programs now need to seriously reconsider whether their abstinence only requirements should continue, especially when an individualized analysis of that individual strongly suggest another way to go about it.
  6. People representing individuals with disabilities in professional recovery programs now have a letter from DOJ to fight back against any abstinence only requirements, especially if they can show that another system is working.
  7. It isn’t just addiction that gets hit with these abstinence only requirements. I have seen ADHD medications get hit with abstinence only requirements in professional recovery programs as well.
  8. Keep in mind, that this is a title II matter and not a title III matter. Nonfederal governmental entities are subject to title II. However, professional recovery programs are more often than not subject to title III. However, just because professional recovery programs are subject to title III, does not give them a get out of jail free card with respect to the DOJ letter. The reason is because title III final implementing regulations have similar provisions that would also make the DOJ letter equally applicable to title III situations.
  9. The corrective measures require the ADA coordinator position that have real teeth by requiring that individual to be responsible for monitoring ADA compliance, training court staff, and investigating and resolving ADA complaints and grievances.
  10. Training, training, training. Make sure your trainer is ADA knowledgeable (training is a large part of my practice).
  11. While professional recovery programs are title III entities, it is possible that they may also be title II entities if they are considered a state actor per this case.
  12. The DOJ letter put title II entities on notice of the ADA violations inherent in abstinence only policies, practices, and procedures. As such, failure to correct such policies is arguably deliberate indifference per this case and could subject the title II/state actor entity to damages.
  13. Cummings, oral argument discussed here, to be decided by the Supreme Court soon may also allow for emotional distress damages upon a showing of deliberate indifference.

Today’s blog entry is a two for one, both dealing in the failure to accommodate space broadly speaking. The first case is Humphrey v. Memorial Hospitals Association, 239 F.3d 1128 (9th Cir. 2001). That case considers the question of whether conduct related to a disability has to be evaluated differently with respect to the same conduct that is not related to a disability. I realize the case is 21 years old, but it is still good law. Also, it provides a useful counterpoint to this blog entry, where we discussed how having a disability is not a get out of jail free card for bad conduct. Can the two cases be reconciled? I believe they can be. The second case is Adams v. Stealthbits Techs, here, what appears to be an unpublished decision decided by the United States District Court for the Southern District of Ohio on January 3, 2022. That case asks the question of whether a leave of unspecified duration is protected under the ADA. As usual, the blog entry is divided into categories and they are: Humphrey facts; Humphrey reasoning; Humphrey takeaways; Adams facts; Adams reasoning; and Adams takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Humphrey Facts:

 

The facts are quite involved but they can be simplified greatly. What you have here is the plaintiff had obsessive-compulsive disorder and as a result had difficulty in getting to work on time if at all. Her employer was fully aware of the situation. The employer also allowed other employees who did the plaintiff’s job (medical transcriptionist), to work from home. The employer refused to allow her to work from home because of her history of not showing up to work on time and missing work, all of which was related to her disability. Plaintiff’s work that she did do from home was outstanding. Despite entreaties from the plaintiff, the employer refused to engage in an interactive process and subsequently terminated her. She filed suit.

 

II

Humphrey Reasoning

 

  1. Plaintiff was substantially limited in her ability to care for herself in that it took her significantly more time than the average person to accomplish the basic task of washing and dressing. According to the plaintiff, the process of washing and brushing her hair alone could take several hours, and she at times would prepare for work from 8 o’clock in the morning until 5 or 6 o’clock in the evening.
  2. An individual who has a physical or mental impairment causing him or her to take inordinately more time than others to complete a major life activity is substantially limited in that activity per the ADA.
  3. Plaintiff had the skills, training, and experience to transcribe medical records.
  4. Either the accommodation of granting her a leave of absence or allowing her to become a home-based transcriptionists were reasonable accommodations per the ADA that may have enabled the plaintiff to perform the essential functions of her job with or without reasonable accommodations.
  5. It is inconsistent with the purposes of the ADA to permit an employer to deny an otherwise reasonable accommodation because of past disciplinary action taken due to the disability sought to be accommodated. Therefore, plaintiff’s disciplinary record does not constitute an appropriate basis for denying her a work at home accommodation.
  6. The employer had an affirmative duty under the ADA to explore further methods of accommodation before terminating the plaintiff.
  7. An employer’s obligation to engage in the interactive process extends beyond the first attempt at accommodations and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed. Such a rule fosters the framework of cooperative problem-solving contemplated by the ADA, by encouraging employers to find accommodations that really work, and by avoiding the creation of a perverse incentive for employees to request the most drastic and burdensome accommodation possible out of fear that a lesser accommodation might be ineffective.
  8. An attempt by the plaintiff to perform her job function by means of a less drastic accommodation does not forfeit her right to a more substantial one upon the failure of the initial effort.” The employer had a duty to explore further arrangements to reasonably accommodate plaintiff’s disability.
  9. Plaintiff realized that the accommodation was not working and requested a work at home position. When the employer received that request, the employer could have either granted that or initiated discussions with the plaintiff regarding other alternatives. Instead, her employer denied the request without exploring any alternative solutions or even exploring with her the possibility of other accommodations. Rather than fulfill its obligation to engage in a cooperative dialogue with the plaintiff, the employer suggested the matter was closed.
  10. An employer fails to engage in the interactive process as a matter of law when it rejects the employee’s proposed accommodation by letter and offers no practical alternatives.
  11. With few exceptions, conduct resulting from a disability is considered to be part of the disability rather than a separate basis for termination. That link between the disability and termination is particularly strong where its the employer’s failure to reasonably accommodate a known disability that leads to discharge for performance inadequacy resulting from that disability.
  12. In a footnote, the court notes that the texts of the ADA authorizing discharges for misconduct or inadequate performance that may be caused by a disability is in only one category of cases-alcoholism and illegal drug use. In line with that provision, the Ninth Circuit has applied a distinction between disability-caused conduct and the disability itself as a cause of termination only in cases involving illegal drug use or alcoholism.

 

III

Humphrey Takeaways

 

  1. OCD is a disability under the ADA. However, do not get hung up on diagnosis. Your best approach is to evaluate whether you have a physical or mental impairment that substantially limits a major life activity rather than focus on any diagnosis.
  2. Magic words are not required.
  3. The interactive process is always a good idea. Sound preventive law demands that the interactive process continue until it is clear the process had reached a dead end. In that way, the employer can satisfy its affirmative duty to explore further methods of accommodation before termination. The employer should always be sure to offer alternatives. Work with the person with the disability and call the Job Accommodation Network if your stuck.
  4. Interactive process
  5. If conduct is occurring that is arguably related to a disability, initiate the interactive process.
  6. Remember the do’s and don’ts of the interactive process, which we discussed here.
  7. The case is good law. If you look at the cases citing it, most of them are in the Ninth Circuit jurisdiction but not always.
  8. Be careful about policies that automatically deny accommodations for prior conduct where that conduct is a manifestation of an individual’s disability.
  9. While disability is not a get out of jail free card for bad conduct, as we discussed here, that doesn’t mean the employer can forget about the interactive process. In that way, I don’t think the two cases being discussed in this blog entry are irreconcilable at all.

 

IV

Adams Facts

 

The facts of this case can also be simplified greatly. What you have here is a plaintiff with a long history of major depressive disorder. She gets recruited to work for another company as a result of a successful working relationship with an individual who moved over to that company whom she used to work with. The medication that she was on for years stopped working effectively and she has tremendous difficulty getting a medication regimen going that worked. That was not unusual for her, and in the past she would take leave from wherever she worked so that she could get the medication regimen ironed out. Plaintiff suggested 4 to 6 weeks of short-term leave as a reasonable accommodation to work out the medication regimen because that amount of time was sufficient in the past. The employer was having none of it and depending upon who you believe, either terminated her or plaintiff resigned. She then brought suit.

 

V

Court’s Reasoning

 

  1. The two kinds of voluntary resignation or constructive resignation and effective resignation.
  2. An effective resignation requires that the employee express an intention to resign and that the employee take some action to demonstrate that he or she is relinquishing his or her position.
  3. When plaintiff went to her employer to ask what her options were for a short medical leave to adjust to her new depression medication and told her employer that 4 to 6 weeks was needed in light of her past experience, that was not an intent to resign. Rather, a jury could conclude that was a request for medical leave and not an intention to quit.
  4. Medical leave can in some circumstances constitute a reasonable accommodation under the ADA. Factors to consider are the length of the requested leave, whether leave was provided previously, and whether the duration is definite.
  5. Even though plaintiff did not provide a specific return date, she did provide an expected duration.
  6. Whether three, or 4-6, or 6 to 8 weeks, a jury could reasonably conclude that the cost of the leave is not clearly exceeded by the benefit of plaintiff’s controlling her major depression.
  7. An employee has the burden of proposing an initial accommodation, and the employer had the burden of showing how the accommodation would cause an undue hardship. However, the employer is not required to propose a counter accommodation in order to participate in the interactive process in good faith. If a reasonable counter accommodation is offered, the employee cannot demand a different accommodation.
  8. The employer never commented on any hardship that plaintiff’s leave would cause. Further, a person from HR testified in her deposition that she and the plaintiff did not get into the interactive process and go down that route.
  9. The employer did not establish that a reduction in work hours was a reasonable counter accommodation since her doctor had recommended that she take a short leave while her body adjusted to the new medication. So, a jury could conclude that her employer terminated the plaintiff without considering her initial accommodation request and therefore failed to engage in the interactive process in good faith.
  10. There was also a failure to rehire claim that the court threw out.
  11. The court also allowed a wrongful discharge as against public policy claim under Ohio law to proceed to trial. Also,with respect to Ohio law claims, the court threw out several claims, including: reasonable accommodation; failure to engage in the interactive process in good faith; failure to rehire the plaintiff in retaliation for exercising her right to request reasonable accommodation and refusing to sign away protective rights; and discrimination by unequal treatment.
  12. The court also denied summary judgment on the Ohio law claim for breach of implied covenant of good faith and fair dealing.
  13. The court also denied summary judgment for the employer’s counterclaim for misappropriation of confidential and proprietary information under Ohio and federal law.

 

VI

Adams Takeaways

 

  1. Indefinite leave is not the same thing as a leave of unspecified duration and the distinction matters a great deal.
  2. Empathy on the part of the employer can go a long way towards preventing litigation.
  3. Interactive process
  4. It is helpful to think of a reasonable accommodation as whatever gets the person with the disability to the same starting line as a person without a disability. Be creative and be sure to involve the person with the disability.
  5. Don’t forget about state law claims. Many times the state antidiscrimination laws can go further than the ADA or they can be quite a bit different.
  6. Interactive process
  7. Remember the do’s and don’ts of the interactive process.

Today’s blog entry returns us back to the world of legal malpractice. You simply do not see a lot of legal malpractice with respect to ADA matters, and I have always wondered why. We have discussed legal malpractice with respect to ADA matters before, such as here. The case of the day is Suburban Real Estate Services, Inc. v. Carlson decided by the Illinois Supreme Court on January 21, 2022, which can be found here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and what does this have to do with the ADA-thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories. Before moving into the blog entry, a note about what you see when you pull up the case. Illinois some years ago adopted an Internet-based citation format. The paragraph symbols in the opinion essentially substitute for what you would usually think of page numbers. Illinois also doesn’t deal with the published/unpublished distinction.

 

I

Facts

 

In May 2010, Barus retained William Roger Carlson Jr. and his law firm Carlson Partners, Ltd., (collectively defendants) for legal advice in unwinding Suburban’s relationship with ROC/Suburban. After obtaining defendants’ assistance, Barus sent a “break-up” letter to Siurek, notifying him of the steps he planned to take to terminate Suburban’s relationship with ROC/Suburban. In August 2010, ROC sued Suburban, alleging that the actions taken by Suburban, by and through Barus, pursuant to the “break-up” letter constituted a breach of fiduciary duty owed to ROC/Suburban. In October 2010, Barus retained the law firm of Gaspero & Gaspero, Attorneys at Law, P.C. (Gaspero Law Firm), to defend Suburban in the ROC litigation. In June 2015, after a bench trial, the trial court entered judgment for ROC. The court found that Suburban, through Barus, had breached its fiduciary duties and ordered it to pay ROC 50% of the fair value of the assets that Barus had improperly transferred out of ROC/Suburban. The court awarded damages against Suburban in the amount of $336,652.26. Thereafter, in May 2016, plaintiffs filed a legal malpractice action against defendants. In their first amended complaint, they alleged that defendants were negligent in that they failed to properly advise plaintiffs of the proper steps to obtain – 2 – a judicial dissolution of ROC/Suburban, recommended and/or approved the selfhelp actions that resulted in plaintiffs breaching fiduciary duties owed to ROC/Suburban, and failed to advise them of the consequences of these actions. They further alleged that, as a direct and proximate cause of defendants’ negligence, they suffered damages in excess of $600,000.

 

Defendants moved for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2018)), asserting that the legal malpractice claim was barred by the two-year statute of limitations (735 ILCS 5/13- 214.3(b) (West 2018)). They argued that the plaintiffs sustained an injury resulting from defendants’ alleged negligence beginning in November 2010, when they retained new counsel and began paying them attorney fees. Defendants argued plaintiffs knew they were injured in April 2013 at the latest, when the trial judge in the underlying action told plaintiffs’ new counsel that a malpractice action was a certainty and when plaintiffs sought advice about whether a malpractice claim should be filed. In support, defendants attached various exhibits, including the deposition testimony of both Carmen and Lisa Gaspero of the Gaspero Law Firm. According to their testimony, at a pretrial settlement conference in April 2013, the trial judge made it clear to Carmen and Lisa Gaspero that he would likely find Barus liable for breach of fiduciary duty if the ROC lawsuit went to trial. The court also voiced its belief that the attorney representing Barus in June 2010 “one hundred percent” committed malpractice. After the pretrial conference, the Gasperos consulted with a lawyer specializing in legal malpractice claims to evaluate a potential claim against defendants. That lawyer advised them to wait until the ROC litigation was resolved to file a claim.

 

The trial court granted summary judgment in favor of defendants, finding that plaintiffs had notice of the malpractice claim as early as 2010, when ROC filed the underlying lawsuit, and no later than April 2013, when the trial judge told counsel that plaintiffs’ malpractice action was a certainty and when counsel sought advice as to when a malpractice action should be filed. The appellate court reversed and remanded, finding that plaintiffs timely filed their legal malpractice claim. The court reasoned that plaintiffs did not suffer a realized injury until the trial court found a breach of fiduciary duty and entered a judgment against them in June 2015. The court further rejected defendants’ theory that plaintiffs’ payment of attorney fees purportedly related to defendants’ negligent advice constituted an injury, triggering the statute of limitations.

 

II

Court’s Reasoning

 

  1. A legal malpractice claim accrues when the client knows or reasonably should have known of the injury for which damages are sought.
  2. To figure out when a claim for legal malpractice accrues, you have to identify the injury and then determine when the injury was discovered or should have been discovered.
  3. The injury in a legal malpractice claim is not a personal injury or the attorney’s negligent act. Instead, it is a pecuniary injury to an intangible property interest caused by the lawyer’s negligent act or omission.
  4. In a legal malpractice action, a client is not considered injured unless and until he or she has suffered a loss for which monetary damages may be sought. No action can be sustained against the attorney unless that negligence proximately caused damage to the client.
  5. The existence of actual damages is essential to a viable cause of action for legal malpractice. That is, unless the client can demonstrate that he has sustained a monetary loss as a result of some negligent act on the lawyer’s part, his or her cause of action cannot succeed. Further, demonstrating the existence of damages requires more than supposition or conjecture, and where damages are speculative, no cause of action for malpractice exists.
  6. No injury exists and therefore no actual claim arises, unless and until the attorney’s negligence results in the loss of the underlying cause of action.
  7. In some cases, such as this one, the alleged negligence relates to legal advice given by a transactional attorney during his representation of a client. After allegedly following counsel’s legal advice, the client is subsequently sued by a party involved in the transaction. Thus, to determine when a legal malpractice claim accrues, you first have to figure out the alleged injury for which damages are sought.
  8. A variety of Illinois cases stand for the proposition that unless the client can demonstrate he or she has sustained a monetary loss as the result of some negligent act on the lawyer’s part, his or her cause of action cannot succeed. It is the realized injury to the client and not the attorney’s misapplication of expertise that marks the point in time for measuring compliance with a statute of limitation period.
  9. Merely hiring new counsel to defend against a lawsuit challenging the attorney’s legal advice and incurring fees does not by itself trigger a cause of action for malpractice. By providing legal representation, an attorney is not guaranteeing the client he or she represents will never be sued or agreeing to indemnify the client if it is sued.
  10. Even though plaintiff may have been alerted in April 2013 to the trial court’s assertion that counsel badly advised them in unwinding the company, the possibility of damages was not actionable unless and until the underlying litigation ended adversely to plaintiffs with a finding that plaintiff breached their fiduciary duties. It was not until then that plaintiffs became obligated to pay a sum that they otherwise would not of had to pay but for defendants alleged negligence. Had the action resulted in an outcome favorable to plaintiffs, no cause of action for legal malpractice would have accrued.

 

III

What Does This Have to do with the ADA-Thoughts/Takeaways

 

  1. Legal malpractice is a state law proposition. So, be sure to check your state law on the applicable rules. It is entirely possible that your State would not agree with this decision. It is also possible it will.
  2. In the blog entry we discussed here, we talked about the elements of the legal malpractice claim and some particular areas of the ADA that are particularly prone to legal malpractice claims. In particular, there are three areas that could be affected by a decision like the one we are discussing here. First, let’s say you have a situation where a client files for SSDI, but the attorney does not formulate the papers in such a way to make clear accommodations are not factored into the SSDI analysis in deciding whether a person can perform jobs in the economic marketplace. Further, let’s say the attorney does not advise the client of the risk of filling out and getting an SSDI award with respect to his or her ability to work in the future and be reasonably accommodated for the disability. In that situation, the statute of limitations per this decision, would not begin to run until that individual has been terminated from the job and had judicial estoppel, per the case discussed in this blog entry, applied against him or her. In such a case, it could be many years beyond the personal injury statute of limitations (most states use the personal injury statute of limitations when it comes to disability discrimination claims but not all, Virginia for example), that the SSDI applicant would have to pursue a legal malpractice claim.
  3. Let’s say you have an in-house counsel that insists on 100% return to work (check out this blog entry), such insistence would definitely be legal malpractice, and I have said as much for years. It would seem under this case, that the statute of limitations would begin to run at the point in time a court throws out the 100% return to work policy. Again, many years after the lawyer’s advice to insist on a 100% return to work.
  4. Let’s say you have licensing counsel representing a healthcare professional who is having their professional license threatened unless they work with a professional recovery program. The professional recovery programs are cash basis. We have discussed the opportunity for plaintiff lawyers when it comes to medical licensing boards and the professional recovery programs here. Let’s assume that the licensing counsel does not work the ADA into the advocacy for the client thereby subjecting the client to onerous requirements and substantial loss of funds that very well could have been partially or completely prevented with judicious use of the ADA. That system is entirely cash based and the costs are entirely imposed upon the healthcare professional. In that situation, the lack of licensing counsel not utilizing the ADA would, under this decision, give rise to legal malpractice only after thousands of dollars were incurred by the healthcare professional in the professional recovery program and/or his or her license was restricted or taken away. Again, many years after the initial legal malpractice.
  5. In Illinois, a legal malpractice claim must contain both the bad advice and damages from that advice or claim to move forward. This case stands for the proposition that the statute of limitation begins to run from the damages being accrued and not from the bad advice or when the individual should have discovered or knew of the bad advice.
  6. Did I mention that you need to be sure to check your state law on when the legal malpractice statute of limitation begins to run. It is entirely possible that your state will take a different approach from Illinois.

Today’s case comes from 2003 and represents the start of a line of cases that I am not sure I have discussed before. I am authoring a chapter in a federal employment litigation treatise on disability discrimination and the case came up during the course of that work. The case is Felix v. New York City Transit Authority, 324 F.3d 102 (2d Cir. 2003). As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that a causal link between the major life activity and the accommodation is required; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

In 1994, plaintiff was hired as a railroad clerk by the New York City Transit Authority. At the time, it employed approximately 3,417 railroad clerks who overwhelmingly worked in token booths and subway stations selling tokens, commuter passes, and fare cards. They also provided information to passengers. Only approximately 50 railroad clerks worked in office jobs, who were also deployed to work in token booth a few days a year. In November 1995, plaintiff was assigned as an extra railroad clerk relieving railroad clerks who were on breaks. While on route to relieve a railroad clerk on the northbound platform of the station, she was informed that the railroad clerk on the southbound platform of the station had been killed in a firebombing accident. She saw the smoke from the platform and was stuck inside the railroad car for some time. As a result of that, she was diagnosed with post dramatic stress disorder. Her doctor specified that she could not do any subway work, but could do clerical work. Not later than August 13, 1996, she requested a reassignment to a position that would not require her to work in the subway as an accommodation of her medical problems. Two days later, her employer designated her as “no work temporary,” and one month later she was terminated under a rule authorizing termination of an employee who had been unable to return to work for a year. After exhausting her administrative remedies, she sued. The employer defended on several grounds, including: 1) she received SSDI; 2) no reasonable accommodation was available because working in the subway was an essential function of her job; and 3) there was no nexus between the major life activity impaired and the accommodation requested. The District Court rejected the first two arguments but granted summary judgment in favor of the employer on the ground that there was no nexus between the major life activity impaired and the accommodation requested. Plaintiff appealed.

 

II

 

Court’s Reasoning That There Must Be a Causal Link between the Specific Condition Limiting a Major Life Activity in the Accommodation Required

 

  1. The court only addressed the issue of a causal connection and not the other two issues where the lower court denied the summary judgment motion.
  2. An employer discriminates against an employee with a disability only by failing to provide a reasonable accommodation for the disability, which is the impairment of the major life activity.
  3. Plaintiff’s inability to work in the subway did not substantially limit any major life activity. She was fully able to work just not in the subway.
  4. While her inability to work in the subway was related to her insomnia because they both stemmed from the same traumatic incident and the PTSD, that origin alone does not mean that the non-disability impairment is entitled to an accommodation.
  5. The impairment for which plaintiff sought an accommodation did not flow directly from the disability itself. That is, she sought a workplace accommodation for a mental condition that does not flow directly from her insomnia.
  6. Plaintiff did not argue that she was unable to work in the subway because the work aggravated her insomnia. Instead, she argued that she could not work in the subway because she was terrified of being alone and closed in.
  7. Adverse effects of disabilities and adverse or side effects for medical treatment of disability arise because of the disability. However, other impairments not caused by disability need not be accommodated.
  8. Plaintiff’s insomnia and her fear of the subway are two mental conditions deriving from the same traumatic incident.
  9. In situations where it is not clear that a single particular medical condition is responsible for both disability and the lesser impairment, the plaintiff must show a causal connection between the specific condition impairing a major life activity and the accommodation.
  10. The ADA mandates reasonable accommodation of people with disabilities in order to put them on an even playing field with the nondisabled; it does not authorize a preference for disabled people generally. To hold otherwise, transforms the ADA from an act prohibiting discrimination into an act requiring treating people with disabilities better than others who are not disabled but have the same impairment for which accommodation is sought.
  11. The ADA does not require the accommodation of impairments that do not limit major life activities whenever the person with an impairment happens to also have a disability.
  12. To hold otherwise, would mean that an ADA plaintiff who was not otherwise impaired in a major life activity but suffered debilitating anxiety or stress from a particular job could get to a jury merely by alleging that the job causes insomnia, difficulty breathing, or some other set of disabling symptoms that can be characterized as a syndrome.

 

III

Thoughts/Takeaways

 

  1. There was a concurring opinion in the case that seemed to misunderstand entirely the nature of disability and why a reasonable accommodation is requested.
  2. There was also a dissenting opinion that argued that a causal link between the specific condition limiting a major life activity and the accommodation existed in this case.
  3. Underlying the case is the question of when an employer has to reassign an employee that is no longer qualified for the job; a question where the circuit courts are currently split, as we discussed here.
  4. This case occurred long before the amendments to the ADA, which radically changed what is a major life activity.
  5. The amendments to the ADA also made clear that how the courts had interpreted substantial limitation was far too narrow. In light of the amendments, it shouldn’t be that difficult for a plaintiff attorney to properly allege a physical or mental impairment that substantially limits a major life activity.
  6. The EEOC, 29 C.F.R. §1630.2(j)(ii), defines substantial limitation as a matter of being whether the person is substantially limited in a major life activity as compared to most people in the general population.
  7. This case actually helps a plaintiff arguing for an animal to assist them in the workplace because the case talks about a reasonable accommodation for the disability. It isn’t talking about a reasonable accommodation relating to the essential functions of the job. Solid preventive law practice means linking the accommodation to the disability and not to the essential functions of the job.
  8. Plaintiff s would do well to make sure that the accommodation they are requesting relates to their disability. The case does give plaintiffs an argument that the critical question is how the disability relates to the accommodation and not how the accommodation relates to the essential functions of the job.
  9. We don’t know why the court did not address the first two issues. It is worth noting that the Cleveland case (SSDI can estop a reasonable accommodation request under some circumstances), that was decided by the Supreme Court was only four years old at the time of this decision. The Barnett decision (you do not have to reassign a person to a position if it means trumping seniority rights), was only one year old at the time.
  10. Working is still a major life activity and Sutton is still the operative standard. That said, with the amendments to the ADA, working should hardly ever be alleged as the major life activity, and it may even be legal malpractice to so allege absent no other alternative major life activity. That is, absent working it is now very difficult for a defendant to rebut that a physical or mental impairment does not substantially limit a major life activity, though on rare occasion it does happen.
  11. “Other impairment not caused by the disability,” is a strange turn of phrase looking at things in 2022 because a disability is a physical or mental impairment that substantially limits a major life activity. Today, it difficult to think of a situation of an “other impairment not caused by the disability,” because the chances are very high that the “other impairment,” is associated with a disability of its own. I have the same concern for the court’s phrase, “lesser impairment.” The court’s very limited view of what a disability is may be a reflection of the Toyota Motor decision, which was one year old at the time Felix was decided.
  12. Toyota Motor, which held that to be substantially limited in performing manual tasks the person had to have an impairment that prevented or severely restricted the individual from performing such tasks, was overruled by the amendments to the ADA.
  13. Hard to understand how you could have today a situation where a person is not disabled but had the same impairment for which an accommodation is sought.
  14. A person can have more than one disability needing accommodations.
  15. I actually like this case in many respects even though much of its reasoning is outdated now due to the amendments to the ADA. A critical piece of this case is the accommodation focuses on the disability not on the essential function of the job. Also, it is a word to the wise to ensure that a plaintiff attorney makes clear how the accommodation relates to the disability. For the most part, that shouldn’t be too hard to do. Even so, a plaintiff attorney has to be conscious of making the link between the accommodation and the disability.

Today’s blog entry concerns the question of whether a person acting as a tester can ever have standing to pursue ADA claims. The case of today is Lauffer v. Looper, a published decision from the 10th Circuit decided on January 5, 2022, here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that plaintiff lacks standing; and thoughts/takeaways. Considering how short the blog entry is, the reader will probably want to read the whole thing.

 

I

Facts

 

Plaintiff is a resident of Pascoe County Florida, uses a wheelchair, and requires accommodation due to her disability. In her complaint, she described herself as an advocate of the rights of similarly situated disabled persons and a tester for the purpose of asserting her civil rights in monitoring, sharing, and determining whether places of public accommodation and their websites are in compliance with the ADA. Defendant own the Elk Run Inn, a hotel in Craig, Colorado. Plaintiff alleges that their website did not identify accessible rooms, did not allow for booking of accessible rooms, and provided insufficient information as to whether the rooms at the hotel are accessible. While her complaint did allege an intention to revisit the website to see if the website had come into compliance with 28 C.F.R. §36.302(e), at no time did she allege an intent to use the website to book an accessible room for her actual use.

 

II

Court’s Reasoning That Plaintiff Lacks Standing

 

  1. In Spokeo v. Robbins, the United States Supreme Court said that Article III standing requires a concrete injury even in the context of a statutory violation.
  2. In Trans Union, LLC v. Ramirez, the Supreme Court emphasized that Congress’s creation of a statutory prohibition or obligation and a cause of action does not relieve the courts of their responsibility to independently decide whether a plaintiff has suffered a concrete harm under Article III. That is, for standing purposes an important difference exists between a plaintiff’s statutory cause of action to sue a defendant over the defendant’s violation of federal law and a plaintiff’s suffering concrete harm because of the defendant’s violation of federal law. In other words, under Article III, an injury in law is not equivalent to an injury in fact.
  3. Article III grants federal courts the power to redress harms that defendants cause plaintiffs. It does not grant federal courts a freewheeling power to hold defendants accountable for legal infractions.
  4. Plaintiff conceded that she has no concrete plan to visit Craig, Colorado, or to book a room at the Elk Run Inn.
  5. Article III standing requires a concrete injury even in the context of a statutory violation. The concrete injury must affect the plaintiff in a personal and individual way.
  6. Plaintiff made no allegation that she was given false information based upon discrimination as is the case when it comes to testers under the Fair Housing Act.
  7. Status as a tester alone is insufficient to confer standing.
  8. Plaintiff did not allege that information was denied to her because of her disability nor could she because all individuals had access to the same information on the website. A lack of information is not the same thing as information grounded in misrepresentation and racial animus.
  9. Plaintiff identified no downstream consequences from failing to receive the required information. That is, plaintiff did not allege that she had any interest in using the information she obtained from the website beyond bringing this lawsuit. She has no plan to visit Craig, Colorado. She did not attempt to book a room at the defendant’s place of business and has no intent to do so.
  10. In a footnote, the court mentioned that the Fifth Circuit said that to allege an informational injury, plaintiff would need to allege at least that the information had some relevance to her. Even so, violation of a legal entitlement is not the same as an injury in fact.
  11. While it is true that the 10th Circuit has previously held that anyone who has suffered an invasion of a legal interest protected by title III may have standing regardless of his or her motivation in encountering that invasion, that same decision also emphasized that the general requirements of standing were not being displaced. In this case, plaintiff did not allege that she would encounter any accessibility barriers because she had no intention of attempting to access the Elk Run Inn itself.
  12. Testers must satisfy the constitutional requirements of Article III.
  13. Plaintiff’s status as a tester did not defeat standing, but nor does it automatically confer standing.
  14. Plaintiff did not allege that she was prevented from accessing the website because of her disability.

 

III

Thoughts/Takeaways

 

  1. The decision is a published decision and so can be freely cited.
  2. Tester standing under this decision is sort of a thing but is also not sort of a thing. That is, being a tester by itself is insufficient. There has to be some misrepresentation involved or the tester actually has to demonstrate that they intend to show up at the physical space and take advantage of it. In theory, tester standing exists but not without more, which means that tester standing along the lines of the Fair Housing Act does not exist with respect to title III of the ADA, at least when it comes to the rules pertaining to accessibility of hotel rooms being advertised. A lack of information is simply not enough.
  3. A person could also allege that there are downstream consequences from failing to get the required information. However, that allegation without more isn’t enough either. In that situation, plaintiff would have to at least allege an intent to visit the locale, or to book a room at the defendant’s place of business.
  4. Legal entitlement is not the same as an injury in fact.
  5. Importantly, this is not a case where the plaintiff said that the website itself was inaccessible due to her disability.
  6. I could see the principles of this case being applied to Article III standing issues generally, such as in architectural barrier cases.
  7. On the plaintiff side, a plaintiff needs to be specific about how the statutory harm makes it a personal problem for that individual. It certainly does appear that courts are getting very frustrated with serial plaintiffs and will start using standing principles, such as the ones laid out here, to cut down on their filings. I have said for quite a long time that a hybrid fact-noticed based pleadings approach is the best way to go.
  8. This decision is not as clearly applicable to an inaccessible website situation because in that situation, a plaintiff cannot meaningfully access the website in the first place.
  9. Considering the current configuration of the Supreme Court, I would expect this decision to be affirmed if this case were appealed to the Supreme Court by at least a 6-3 margin and probably larger.

Happy new year everyone! Today’s blog entry deals with the question of what happens when a state passes all kinds of laws to cut down on serial plaintiffs who then flood the federal courts, which do not have the same restrictions, with similar cases. The case of the day is Arroyo v. Rosas, here. A decision from the Ninth Circuit Court of Appeals decided that on December 10, 2021. As usual, the blog entry is divided into categories and they are: background; facts; court’s reasoning that the lower court should not have denied supplemental jurisdiction; court’s reasoning that the lower court should not have denied supplemental jurisdiction BUT; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.

 

I

Background

 

  1. The California antidiscrimination law, the Unruh Act, contains a specific provision stating that a violation of the right of any individual under the ADA is also a violation of the California law. Unlike the ADA, the Unruh Act allows for a person to recover actual damages as well as any amount that may be determined by a jury up to a maximum of three times the amount of actual damages but in no case less than $4000.
  2. In 2012, the California legislature in an effort to restrict the number of cases being filed by serial plaintiffs instituted several reforms, including: 1) prohibiting upfront requests for money and prelitigation demand letters sent by attorney to business owners; 2) imposing heightened pleading requirements on construction related accessibility claims; and 3) requiring that any such complaint be verified by the plaintiff.
  3. In 2015, the California legislature imposed additional requirements on a high-frequency litigant, including: 1) the plaintiff must disclose he or she is a high-frequency litigant; 2) the plaintiff must disclose how many complaints he or she has filed in the prior 12 months; 3) the plaintiff must state the reason he or she was in the geographic area of the defendant’s business; and 4) the plaintiff must state why he or she desired to access the defendant’s business. A high-frequency litigant is someone defined as a plaintiff who has filed 10 or more complaints alleging a construction related accessibility violation within the 12 month period immediately preceding the filing of the current complaint alleging a construction related accessibility violation. Finally, the California legislature imposed a $1000 additional filing fee over and above the ordinary civil filing fees for each new case filed by a plaintiff who is a high-frequency litigant.
  4. As a result of the California legislation, serial plaintiffs moved their cases to the federal courts in a big way. By the first six months of 2019, 24% of civil cases filed in the central district of California where ADA construction related accessibility claims that also alleged violations of the Unruh Act. By 2019, the number of state complaints had dropped so dramatically that the ratio of federal to state complaints was 10 to 1 (311 state complaint versus 3211 federal complaints).

 

II

Facts

 

  1. The plaintiff filed the action in the U.S. District Court for the Central District of California on July 23, 2018. Within the preceding 12 months, he had filed at least 38 cases thereby classifying him as a high-frequency litigant had he filed the case in California state courts.
  2. After a year from filing the action, plaintiff moved for summary judgment. Defendant proceeded pro se and unsuccessfully sought an extension of time to file her opposition to the summary judgment motion. Defendant thereafter failed to file any response by the court’s deadline. So, in August 2019, District Court granted plaintiff’s summary judgment on the ADA claim but declined jurisdiction over the state law claim. Plaintiff appealed the court’s refusing to take on the state law claim after granting summary judgment.

 

III

Court’s Reasoning That the Lower Court Should Not Have Denied Supplemental Jurisdiction

 

  1. The only question is whether exceptional circumstances under 28 U.S.C. §1367(c)(4) exists.
  2. Deciding whether exceptional circumstances exist involves the lower court: 1) articulating why the circumstances of the case are exceptional; and 2) considering what best serves the principles of economy, convenience, fairness, and comity underlying the pendent jurisdiction doctrine.
  3. The recent combination of several California law rule changes combined with how the ADA goes about determining whether architectural barriers are discriminatory clearly threatens to have a significant adverse impact on federal-state comity as now federal court is very attractive for filing claims and state court is not, particularly for serial litigants.
  4. Due to the shift of cases to the federal courts, California is simply unable to accomplish the legislature’s goal of simultaneously providing damages relief for ADA violations while limiting the financial burdens California businesses face for claims of statutory damages under the Unruh Act. In short, the procedural structures of California have now been rendered largely toothless.
  5. Retention of supplemental jurisdiction over ADA-based Unruh Act claims threatens to substantially thwart California’s carefully crafted reforms and to deprive the state courts of their critical role in effectuating the policies underlying those reforms.

 

IV

Court’s Reasoning That the Lower Court Should Not Have Denied Supplemental Jurisdiction

BUT

 

  1. Given the very late stage District Court declined supplemental jurisdiction in this case, the District Court should have retained jurisdiction over the plaintiff’s Unruh Act claim and therefore, abused its discretion in dismissing that claim.
  2. From the perspective of judicial economy and convenience, it makes no sense to decline jurisdiction as the District Court did over a pendent state law claim already decided by the court. Under the plain language of the Unruh Act, a violation of the ADA is automatically, without more, a violation of the Unruh Act. Accordingly, the District Court’s ADA ruling already established that the defendant violated the Unruh Act, and it identified the specific respects in which the defendant did so.
  3. The District Court waited too late in the litigation process to invoke the interest of comity. If the District Court had declined supplemental jurisdiction over plaintiff’s Unruh Act claim at the outset of litigation, it might then still have been possible to further California’s interest in channeling Unruh Act damages claim through the imposition of heightened pleading requirements and a substantial upfront filing fee. However, once the District Court granted summary judgment upholding the merits of plaintiff’s ADA claim and by implication its Unruh Act claim, it was no longer possible to satisfy the interests underlying California’s various devices for prescreening of Unruh Act claims. Having already granted summary judgment in plaintiff’s favor, the District Court by that point had identified the specific access barrier barriers the individual encountered, the way in which the barrier denied the individual equal user access, and the particular date in which the claimant encountered the specific access barrier.
  4. When the court granted summary judgment, it knew the plaintiff was a high-frequency litigant. While the lower court would not have been aware of that necessarily at the beginning of the litigation, the defendant could have explored those points in discovery.
  5. There is no point in exploring the high-frequency of the litigant when the merits of the claim already have been litigated and resolved. At that point, the only thing accomplished by sending the Unruh Act claim back to state court, other than burdening the state court with pointless work, would be to impose a fee on the plaintiff for the $1000 special filing fee for high-frequency litigants as well as the other standard filing fees.
  6. There is no sense in which the district court’s dismissal can be said to further the interest of ensuring federal courts are not burdened with combined ADA/Unruh Act cases that would not survive California’s upfront screening mechanism. After all, any burden from this particular litigation has already occurred, and all that remains is a relatively ministerial task of entering judgment on the Unruh Act claim. In short, it is simply too late to undo the now sunk costs already incurred by litigating this matter to its inevitable conclusion.

 

IV

Thoughts/Takeaways

 

  1. Not all states have state antidiscrimination laws. For example, Georgia, with rare exceptions, doesn’t. If you are in a state with an antidiscrimination law containing heightened pleading requirements v. the ADA, this case is something you very much want to keep in mind.
  2. Missing court deadlines is never a good idea.
  3. Check your state law to see just how broad the additional pleading requirements are on a serial litigant. For example, here we are only talking about architectural barriers and not barriers that exist when someone tries to access an Internet site.
  4. Moral of the story is that every lawyer on the defense side in California, or in a state with similar rules, defending an architectural barriers case needs to immediately move to remand the Unruh Act claim to state court when it is filed in federal court. I realize that is a bit of a reversal because it is generally defendants prefer to be in federal court and not plaintiffs. You might even try removing the entire case back to state court and have the state take the ADA claim with supplemental jurisdiction. After all, state courts do decide ADA claims with some frequency, with the variability of that depending upon the jurisdiction.
  5. Part of the problem is that when it comes to architectural barriers, the ADA is a strict liability statute if the applicable Americans with Disabilities Act Architectural Guidelines, ADAAG, is not complied with. This is an issue that my colleague, Richard Hunt, has written about with great frequency in his blog, access defense, which is in my blogroll.
  6. Since the ADA is a strict liability statute when it comes to the applicable ADAAG guidelines, an argument can be created that a defense attorney, in California or in a similar state, who fails to file early in the litigation a motion to remand a serial litigant architectural barrier claim might even be committing legal malpractice (see this blog entry for a discussion of legal malpractice involving ADA matters).

I hope everyone had a Merry Christmas and is having a happy holiday season. Today’s blog entry comes from the Supreme Court of Georgia in a case decided November 23, 2021. It has absolutely nothing to do with the ADA per se but then again it very much does. The case goes to the question of just how far the doctrine of judicial immunity goes. As I have mentioned previously, it isn’t unusual for me at all to get calls saying that a judge is refusing to accommodate a litigant with a disability. Also, it is not unusual for me to see situations where judicial immunity is claimed solely because it is the judge that decides on the reasonable accommodation/modification request rather than clerical staff. This case, Spann v. Davis, here, deals with both of those questions even if it is not a matter of disability discrimination. As usual, the blog entry is divided into categories and they are: procedural history; issues presented; short answer; court’s reasoning that lower court erred in dismissing sua sponte, on its own motion, the case because of quasi-judicial/judicial immunity; quasi-judicial/judicial immunity is an affirmative defense but is nonwaivable; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.

 

I

Procedural History

 

Plaintiff filed suit against two people who were administrators of the City of Atlanta Municipal Court alleging that she was wrongfully arrested and detained as a result of the clerk’s failure to withdraw a failure to appear warrant after it was canceled by the Municipal Court. The clerks raised sovereign immunity and official immunity as defenses in a motion to dismiss, but the trial court on its own motion raised and granted the motion based on quasi-judicial immunity with no prior notice to the parties.

 

II

Issues Presented

 

  1. Did the Court of Appeals err in concluding that the trial court was correct to rule on its own motion on the issue of quasi-judicial immunity even though the defendant did not raise quasi-judicial immunity in the motion to dismiss or in its answer?
  2. Did the clerks waive the defense of quasi-judicial immunity by failing to raise it in their initial pleading or by motion?

 

III

Short Answer

 

  1. Yes
  2. No

 

IV

Court’s Reasoning That the Lower Court Erred in Ruling on Quasi-Judicial Immunity on Its Own Motion

 

  1. In a footnote, the court said that judicial immunity shields judicial officers from liability in civil actions based on acts performed in their judicial capacity that are not undertaken in the complete absence of all jurisdiction. This broad immunity, normally applies to judges, also applies to officers appointed by the court if their role is simply an extension of the court.
  2. The Court of Appeals reasoned that the clerk’s failure to report the cancellation of the warrant was a judicial and not a ministerial function because the warrant is always issued by a judge.
  3. The Georgia Supreme Court in a footnote expressed its doubt over whether a trial court can on its own behalf dismiss on the basis of affirmative defenses other than failure to state a claim, but it was not necessary for the Georgia Supreme Court to answer that question with respect to this case.
  4. The Georgia Court of Appeals has held that a trial court lacks authority to assert on behalf of a party affirmative defenses that can be waived.
  5. A judgment dismissing a matter based on an affirmative defense that has not been raised is particularly problematic because a party seeking protection from suit on the basis of immunity bears the burden of establishing that he or she is entitled to that protection.
  6. The defense of judicial immunity or quasi-judicial immunity is a fact specific inquiry turning on the nature and function of the action taken by the party asserting the defense rather than the party’s status.
  7. Since the clerks did not assert quasi-judicial immunity and the responsive pleading, such that the allegations of the pleading did not reveal on their face that they were entitled to immunity as a matter of law, and the clerk did not move to dismiss on that basis, the trial court erred in dismissing on its own behalf plaintiff’s claims.

 

V

Court’s Reasoning That the Clerk Did Not Waive the Defense of Quasi-Judicial Immunity by Failing to Raise It in Their Initial Pleading or by Motion.

 

  1. OCGA §9-11-12(b) lists seven defenses that must be raised to a claim for relief in any pleading.
  2. OCGA §9-11-8(b) requires a party to state in short and plain terms any defenses to each claim asserted.
  3. Of the seven enumerated defenses in OCGA §9-11-12, four of them (lack of jurisdiction over the person, improper venue, insufficiency of process, and insufficiency of service of process), may be waived under certain circumstances.
  4. In a footnote, the Georgia Supreme Court notes that the Federal Rules of Civil Procedure include a catchall introductory provision covering all possible affirmative defenses, which is not the case with respect to Georgia.
  5. Quasi-judicial immunity is not one of those defenses enumerated in OCGA §9-11-12(h)(1) as being waived if not included in a responsive pleading as originally filed.
  6. Quasi-judicial immunity is not among the seven defenses that the OCGA permits to be raised by motion rather than in responsive pleading. Therefore, the clerk’s failure to include quasi-judicial immunity in their motion does not amount to a waiver of that defense.
  7. Since a trial court retains authority over a case regardless of whether judicial or quasi-judicial immunity applies, the assertion of quasi-judicial immunity is an affirmative defense and not an issue divesting the court of subject matter jurisdiction.

 

VI

Justice McMillan Concurring Opinion

 

  1. With respect to judicial immunity, its scope includes: 1) protecting judges from being sued and from being held civilly liable as a result of carrying out their judicial duties; 2) a judge will be denied the absolute protection of judicial immunity when committing an act that is not judicial in nature or when acting in the complete absence of all jurisdiction; and 3) the determinative issue is whether the court function complained of was nonjudicial.
  2. The relevant inquiry is the nature and function of the act and not the act itself. In other words, you look to the particular act’s relation to a general function normally performed by a judge.
  3. The Georgia Supreme Court previously went astray when it looked to the statute as being essentially dispositive to determine the judicial function instead of it being just a factor in the analysis. The Georgia Supreme Court then erroneously extended the concept that a statute can define a judicial function to say that reporting the disposition of a matter to another government agency a judicial function generally even apparently in the absence of a statute. With respect to the federal cases that decision relied upon, none of those cases addressed the issue of a judicial function versus a clerk’s function.

 

VII

Thoughts/Takeaways

 

  1. Judicial immunity and quasi-judicial immunity are affirmative defenses. Also, these particular affirmative defenses do not get waived in Georgia. At the federal level, for the reasons noted by the Georgia Supreme Court, the answer might be different as a result of the difference in the language between the federal rules and the Georgia rules.
  2. The judicial immunity determination is a fact specific inquiry.
  3. The Georgia Supreme Court disfavors a judge dismissing a matter on judicial immunity or quasi-judicial immunity on its own motion. While the failure to raise the affirmative defense of quasi-judicial immunity and judicial immunity is not waivable in Georgia, it is still up to the parties to raise the defense.
  4. The concurring opinion is something very valuable for attorneys representing persons with disabilities in any jurisdiction with respect to challenging a judge’s failure to accommodate an individual with a disability. The critical question is the nature and function of the act and not the act itself. Further, what a statute says isn’t dispositive either. All kinds of people decide on what is a reasonable modification/accommodation who are not judges. Also, what a judge does is independent of the accommodation/modification decision. That is, a judge is responsible for deciding on a winner or loser and/or helping a jury get to that point. The modification/accommodation piece of it is not a judicial function even if it might affect the ultimate result. Thus, a strong argument exists that determining the outcome of the reasonable modification/accommodation request is not a judicial function and therefore, not a judicial act.
  5. Whether this decision will lead to more people challenging a judge failure to accommodate/modify their practices, policies, and procedures in order to accommodate a person with a disability remains to be seen. In my experience, I have seen that there can be serious professional risks to an attorney for taking on such cases. Taking on a court system or an individual judge can be done, but it has to be done very carefully, such as we discussed here.

Before turning to today’s blog entry, I want to wish everyone a Merry Christmas, a happy holiday season, and a happy new year. Also, be safe.

 

Today’s blog entry is really short. Recently, I came across a legal blog entry suggesting that the Supreme Court had clarified the doctrine of qualified immunity in a per curiam decision, City of Tahlequah, Oklahoma v. Bond decided on October 18, 2021, here. Qualified immunity does come up from time to time in our blog, such as here, and I thought I would give the case a read. When I read the case, I don’t think the Supreme Court clarified much of anything at all when it comes to qualified immunity. I have divided the blog entry into the categories of what the Supreme Court said and thoughts takeaways. However, the blog entry is so short that you are going to want to read the whole thing. In fact, the blog entry probably will not make any sense if you don’t read the whole thing.

 

I

What the Supreme Court Said:

“The doctrine of qualified immunity shields officers from civil liability so long as their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U. S. 223, 231 (2009). As we have explained, qualified immunity protects “`all but the plainly incompetent or those who knowingly violate the law.'” District of Columbia v. Wesby, 583 U. S. ___, ___-___ (2018) (slip op., at 13-14) (quoting Malley v. Briggs, 475 U. S. 335, 341 (1986)).

We have repeatedly told courts not to define clearly established law at too high a level of generality. See, e.g., Ashcroft v. al-Kidd, 563 U. S. 731, 742 (2011). It is not enough that a rule be suggested by then-existing precedent; the “rule’s contours must be so well defined that it is `clear to a reasonable officer that his conduct was unlawful in the situation he confronted.'” Wesby, 583 U. S., at ___ (slip op., at 14) (quoting Saucier v. Katz, 533 U. S. 194, 202 (2001)). Such specificity is “especially important in the Fourth Amendment context,” where it is “sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.” Mullenix v. Luna, 577 U. S. 7, 12 (2015) (per curiam) (internal quotation marks omitted).”

On the one hand, the Supreme Court says that officers are protected from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Notice the phrase, “reasonable person.” However, the Supreme Court then goes on to say that you still get the benefit of qualified immunity so long as you are not, “plainly incompetent.” In the next paragraph, the court says that the question is whether the contours were so well defined that it was clear to a reasonable officer that his or her conduct was unlawful in the situation he or she confronted.

II

Thoughts/Takeaways

  1. Qualified immunity is a judicial doctrine. I know lots of people have been working on the issue, including members of the Federal Bar Association, among others.
  2. Qualified immunity does not come up a lot with respect to the ADA because the general rule is that there is no individual liability when it comes to ADA violations for title I, title II, or title III. There is one exception in the 11th Circuit for employees of public entities who retaliate against another individual. See Shotz v. City of Plantation, Florida. That particular case turns on the use of the word person in 42 U.S.C. §12203(a). Interestingly enough, that term does not appear in 42 U.S.C. §12203(b), the interference section. So, it is entirely possible that in the 11th Circuit individual liability for retaliation is in play but is not in play for interference claims. That distinction matters because it is not unusual at all to see police officers interfere with the rights of people with disabilities, such as, by way of example, in the case of the police getting the law wrong when it comes to a person with a service animal wanting to access a place of public accommodation.
  3. Reasonable officer, reasonable person, and plainly incompetent are to my mind different standards. For example, in a prior blog entry, here, we talked about how a case that has been used to train police officers for excessive force is a fact pattern that probably violates the ADA. Even so, officers continue to get trained using that case. A reader of my blog or a police force trained by me would know that Graham v. Connor is not the one you should be looking at if you want to comply with the ADA. On the other hand, would an officer be plainly incompetent to rely on the case that has been used for years for training with respect to excessive force cases? I am not sure they would be.
  4. The opinion also suggests that how close the match needs to be between a pre-existing case and the conduct at issue may vary depending upon context. For example, there may have to be a very close match with respect to the fourth amendment but perhaps less so with respect to other causes of action.
  5. In short, I don’t see how this case clarifies qualified immunity much at all. Things continue to be very muddled even after this decision.

Happy holidays and happy new year!!!!!!

Today’s blog entry focuses on the EEOC update pertaining to what you should know about Covid-19 that came down on December 14, 2021. The only section that has been added is §N. One wonders what will happen when they run out of alphabet letters, AA perhaps? As far as the guidance goes, some of it is straightforward and much of it, to my mind anyway, is unnecessarily confusing. No doubt, every labor and employment law blogger will be blogging on this, but I wanted to add my own perspective. So, here goes. As what I have done in the past with this particular guidance, I’ve listed the guidance verbatim and then add my comments at the applicable point. So, the blog entry is not divided into any categories per se, and you will probably need to read the whole thing.

N. COVID-19 and the Definition of “Disability” Under the ADA/Rehabilitation Act

Employees and employers alike have asked when COVID-19 is a “disability” under Title I of the ADA, which includes reasonable accommodation and nondiscrimination requirements in the employment context. These questions and answers clarify circumstances in which COVID-19 may or may not cause effects sufficient to meet the definition of “actual” or “record of” a disability for various purposes under Title I, as well as section 501 of the Rehabilitation Act, both of which are enforced by the EEOC. Other topics covered in this section include disabilities arising from conditions that were caused or worsened by COVID-19. This section also addresses the ADA’s “regarded as” definition of disability with respect to COVID-19.

On July 26, 2021, the Department of Justice (DOJ) and the Department of Health and Human Services (HHS) issued “Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557” (DOJ/HHS Guidance). The CDC uses the terms “long COVID,” “post-COVID,” “long-haul COVID,” “post-acute COVID-19,” “long-term effects of COVID,” or “chronic COVID” to describe various post-COVID conditions, where individuals experience new, returning, or ongoing health problems four or more weeks after being infected with the virus that causes COVID-19. The DOJ/HHS Guidance focuses solely on long COVID in the context of Titles II and III of the ADA, Section 504 of the Rehabilitation Act of 1973, and Section 1557 of the Patient Protection and Affordable Care Act. These EEOC questions and answers focus more broadly on COVID-19 and do so in the context of Title I of the ADA and section 501 of the Rehabilitation Act, which cover employment. This discussion does not pertain to other contexts, such as eligibility determinations for federal benefit programs.

N.1. How does the ADA define disability, and how does the definition apply to COVID-19? (12/14/21)

The ADA’s three-part definition of disability applies to COVID-19 in the same way it applies to any other medical condition. A person can be an individual with a “disability” for purposes of the ADA in one of three ways:

  • “Actual” Disability: The person has a physical or mental impairment that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning, or operation of a major bodily function);
  • “Record of” a Disability: The person has a history or “record of” an actual disability (such as cancer that is in remission); or
  • “Regarded as” an Individual with a Disability: The person is subject to an adverse action because of an individual’s impairment or an impairment the employer believes the individual has, whether or not the impairment limits or is perceived to limit a major life activity, unless the impairment is objectively both transitory (lasting or expected to last six months or less) and minor.

The definition of disability is construed broadly in favor of expansive coverage, to the maximum extent permitted by the law. Nonetheless, not every impairment will constitute a disability under the ADA. The ADA uses a case-by-case approach to determine if an applicant or employee meets any one of the three above definitions of “disability.”

Response: It is absolutely true that not every impairment will constitute a disability under the ADA. However, with the amendments to the ADA, those situations are going to be very unusual.

COVID-19 and the ADA

“Actual” Disability

N.2. When is COVID-19 an actual disability under the ADA? (12/14/21)

Applying the ADA rules stated in N.1. and depending on the specific facts involved in an individual employee’s condition, a person with COVID-19 has an actual disability if the person’s medical condition or any of its symptoms is a “physical or mental” impairment that “substantially limits one or more major life activities.” An individualized assessment is necessary to determine whether the effects of a person’s COVID-19 substantially limit a major life activity. This will always be a case-by-case determination that applies existing legal standards to the facts of a particular individual’s circumstances. A person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—will not have an actual disability within the meaning of the ADA. However, depending on the specific facts involved in a particular employee’s medical condition, an individual with COVID-19 might have an actual disability, as illustrated below.

Response: I find this statement: “A person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—will not have an actual disability within the meaning of the ADA,” very confusing. I suppose mild symptoms similar to those of the common cold or flu is self-evident. What does a matter of weeks mean? What does, “-with no other consequences-“ mean? As a matter of preventive law, you are going to be much better trying to figure out whether the physical or mental impairment is both transitory and minor. The language from the EEOC here is just too confusing.

Physical or Mental Impairment: Under the ADA, a physical impairment includes any physiological disorder or condition affecting one or more body systems. A mental impairment includes any mental or psychological disorder. COVID-19 is a physiological condition affecting one or more body systems. As a result, it is a “physical or mental impairment” under the ADA.

Response: The EEOC is saying here and in the major life activities §, immediately below, that Covid-19 is undoubtedly a physical or mental impairment under the ADA.

Major Life Activities: “Major life activities” include both major bodily functions, such as respiratory, lung, or heart function, and major activities in which someone engages, such as walking or concentrating. COVID-19 may affect major bodily functions, such as functions of the immune system, special sense organs (such as for smell and taste), digestive, neurological, brain, respiratory, circulatory, or cardiovascular functions, or the operation of an individual organ. In some instances, COVID-19 also may affect other major life activities, such as caring for oneself, eating, walking, breathing, concentrating, thinking, or interacting with others. An impairment need only substantially limit one major bodily function or other major life activity to be substantially limiting. However, limitations in more than one major life activity may combine to meet the standard.

Substantially Limiting: “Substantially limits” is construed broadly and should not demand extensive analysis. COVID-19 need not prevent, or significantly or severely restrict, a person from performing a major life activity to be considered substantially limiting under Title I of the ADA.

The limitations from COVID-19 do not necessarily have to last any particular length of time to be substantially limiting. They also need not be long-term. For example, in discussing a hypothetical physical impairment resulting in a 20-pound lifting restriction that lasts or is expected to last several months, the EEOC has said that such an impairment is substantially limiting. App. to 29 C.F.R. § 1630.2(j)(1)(ix). By contrast, “[i]mpairments that last only for a short period of time are typically not covered, although they may be covered if sufficiently severe.” Id.

Response: Straightforward

Mitigating Measures: Whether COVID-19 substantially limits a major life activity is determined based on how limited the individual would have been without the benefit of any mitigating measures–i.e., any medical treatment received or other step used to lessen or prevent symptoms or other negative effects of an impairment. At the same time, in determining whether COVID-19 substantially limits a major life activity, any negative side effects of a mitigating measure are taken into account.

Some examples of mitigating measures for COVID-19 include medication or medical devices or treatments, such as antiviral drugs, supplemental oxygen, inhaled steroids and other asthma-related medicines, breathing exercises and respiratory therapy, physical or occupational therapy, or other steps to address complications of COVID-19.

Episodic Conditions: Even if the symptoms related to COVID-19 come and go, COVID-19 is an actual disability if it substantially limits a major life activity when active.

Response: This is terribly confusing. It is easy to figure out whether a person has a physical or mental impairment if they have a hearing loss and wear hearing aids. Much less so with Covid-19. How do you actually know what the baseline is with untreated Covid-19? I get what the EEOC is doing. That is, they are just stating what the law is, mitigating measures are not factored into whether you have a disability under the ADA, but in that situation of a Covid-19 it doesn’t apply very well. That said, focus on whether a physical or mental impairment exists that substantially limits a major life activity (is the person substantially limited in a major life activity as compared to most people in the general population, 29 C.F.R. §1630.2(j)(ii)). An excellent preventive law approach for whether a temporary physical or mental impairment is substantially limiting, as mentioned above, is also to ask whether the physical or mental impairment is both transitory and minor.

 

N.3. Is COVID-19 always an actual disability under the ADA? (12/14/21)

No. Determining whether a specific employee’s COVID-19 is an actual disability always requires an individualized assessment, and such assessments cannot be made categorically. See 29 C.F.R. § 1630.2 for further information on the ADA’s requirements relating to individualized assessment.

N.4. What are some examples of ways in which an individual with COVID-19 might or might not be substantially limited in a major life activity? (12/14/21)

As noted above, while COVID-19 may substantially limit a major life activity in some circumstances, someone infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to the common cold or flu that resolve in a matter of weeks—with no other consequences—will not be substantially limited in a major life activity for purposes of the ADA. Based on an individualized assessment in each instance, examples of fact patterns include:

Examples of Individuals with an Impairment that Substantially Limits a Major Life Activity:

  • An individual diagnosed with COVID-19 who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, which the employee’s doctor attributes to the virus, is substantially limited in neurological and brain function, concentrating, and/or thinking, among other major life activities.

Response: Straightforward.

  • An individual diagnosed with COVID-19 who initially receives supplemental oxygen for breathing difficulties and has shortness of breath, associated fatigue, and other virus-related effects that last, or are expected to last, for several months, is substantially limited in respiratory function, and possibly major life activities involving exertion, such as walking.

Response: What does several months mean? Again, the preventive law approach for figuring out whether a temporary physical or mental impairment is substantially limiting, mentioned above, is probably the best way to go.

  • An individual who has been diagnosed with COVID-19 experiences heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to last, for several months. The individual is substantially limited in cardiovascular function and circulatory function, among others.

Response: What does several months mean? Again, the preventive law approach, mentioned above, is probably the best way to go

  • An individual diagnosed with “long COVID,” who experiences COVID-19-related intestinal pain, vomiting, and nausea that linger for many months, even if intermittently, is substantially limited in gastrointestinal function, among other major life activities, and therefore has an actual disability under the ADA. For other examples of when “long COVID” can be a substantially limiting impairment, see the DOJ/HHS Guidance.

Response: A couple of points here. First, the EEOC specifically references the DOJ HHS guidance. Second, we discussed that guidance here. Third, long-haul Covid-19 is undoubtedly a disability under the ADA in many cases, if not all.

Examples of Individuals with an Impairment that Does Not Substantially Limit a Major Life Activity:

  • An individual who is diagnosed with COVID-19 who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks, but experiences no further symptoms or effects, is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is so even though this person is subject to CDC guidance for isolation during the period of infectiousness.

Response: What does “resolve within several weeks,” mean? Again, see the preventive law approach mentioned above.

  • An individual who is infected with the virus causing COVID-19 but is asymptomatic—that is, does not experience any symptoms or effects—is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is the case even though this person is still subject to CDC guidance for isolation during the period of infectiousness.

Response: A bit confusing but straightforward when analyzed.

As noted above, even if the symptoms of COVID-19 occur intermittently, they will be deemed to substantially limit a major life activity if they are substantially limiting when active, based on an individualized assessment.

“Record of” Disability

N.5. Can a person who has or had COVID-19 be an individual with a “record of” a disability? (12/14/21)

Yes, depending on the facts. A person who has or had COVID-19 can be an individual with a “record of” a disability if the person has “a history of, or has been misclassified as having,” 29 C.F.R. § 1630.2(k)(2) , an impairment that substantially limits one or more major life activities, based on an individualized assessment.

Response: Straightforward

“Regarded As” Disability

N.6. Can a person be “regarded as” an individual with a disability if the person has COVID-19 or the person’s employer mistakenly believes the person has COVID-19? (12/14/21)

Yes, depending on the facts. A person is “regarded as” an individual with a disability if the person is subjected to an adverse action (e.g., being fired, not hired, or harassed) because the person has an impairment, such as COVID-19, or the employer mistakenly believes the person has such an impairment, unless the actual or perceived impairment is objectively both transitory (lasting or expected to last six months or less) and minor. For this definition of disability, whether the actual or perceived impairment substantially limits or is perceived to substantially limit a major life activity is irrelevant.

Response: Straightforward

N.7. What are some examples of an employer regarding a person with COVID-19 as an individual with a disability? (12/14/21)

The situations in which an employer might “regard” an applicant or employee with COVID-19 as an individual with a disability are varied. Some examples include:

  • An employer would regard an employee as having a disability if the employer fires the individual because the employee had symptoms of COVID-19, which, although minor, lasted or were expected to last more than six months. The employer could not show that the impairment was both transitory and minor.
  • An employer would regard an employee as having a disability if the employer fires the individual for having COVID-19, and the COVID-19, although lasting or expected to last less than six months, caused non-minor symptoms. In these circumstances, the employer could not show that the impairment was both transitory and minor.

Response: All these examples are doing is illustrating how for the regarded as exception to apply, the physical or mental impairment must be both transitory AND minor.

N.8. If an employer regards a person as having a disability, for example by taking an adverse action because the person has COVID-19 that is not both transitory and minor, does that automatically mean the employer has discriminated for purposes of the ADA? (12/14/21)

No. It is possible that an employer may not have engaged in unlawful discrimination under the ADA even if the employer took an adverse action based on an impairment. For example, an individual still needs to be qualified for the job held or desired. Additionally, in some instances, an employer may have a defense to an action taken on the basis of the impairment. For example, the ADA’s “direct threat” defense could permit an employer to require an employee with COVID-19 or its symptoms to refrain from physically entering the workplace during the CDC-recommended period of isolation, due to the significant risk of substantial harm to the health of others. See WYSK Question A.8. Of course, an employer risks violating the ADA if it relies on myths, fears, or stereotypes about a condition to disallow the employee’s return to work once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others.

Response: The parenthetical information in N8, talking about adverse action, makes that paragraph extremely confusing. The answer is a straightforward application of the ADA.

Other Conditions Caused or Worsened by COVID-19 and the ADA

N.9. Can a condition caused or worsened by COVID-19 be a disability under the ADA? (12/14/21)

Yes. In some cases, regardless of whether an individual’s initial case of COVID-19 itself constitutes an actual disability, an individual’s COVID-19 may end up causing impairments that are themselves disabilities under the ADA. For example:

  • An individual who had COVID-19 develops heart inflammation. This inflammation itself may be an impairment that substantially limits a major bodily function, such as the circulatory function, or other major life activity, such as lifting.
  • During the course of COVID-19, an individual suffers an acute ischemic stroke. Due to the stroke, the individual may be substantially limited in neurological and brain (or cerebrovascular) function.
  • After an individual’s COVID-19 resolves, the individual develops diabetes attributed to the COVID-19. This individual should easily be found to be substantially limited in the major life activity of endocrine function. See Diabetes in the Workplace and the ADA for more information.

In some cases, an individual’s COVID-19 may also worsen the individual’s pre-existing condition that was not previously substantially limiting, making that impairment now substantially limiting. For example:

  • An individual initially has a heart condition that is not substantially limiting. The individual is infected with COVID-19. The COVID-19 worsens the person’s heart condition so that the condition now substantially limits the person’s circulatory function.

Response: Straightforward

Definition of Disability and Requests for Reasonable Accommodation

N.10. Does an individual have to establish coverage under a particular definition of disability to be eligible for a reasonable accommodation? (12/14/21)

Yes. Individuals must meet either the “actual” or “record of” definitions of disability to be eligible for a reasonable accommodation. Individuals who only meet the “regarded as” definition are not entitled to receive reasonable accommodation.

Response: Straightforward application of the ADA.

Of course, coverage under the “actual” or “record of” definitions does not, alone, entitle a person to a reasonable accommodation. Individuals are not entitled to an accommodation unless their disability requires it, and an employer is not obligated to provide an accommodation that would pose an undue hardship. See WYSK Section D, and Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA for more information.

Response: Under title I of the ADA, a qualified person with a disability is a person who can perform the essential functions of the job with or without reasonable accommodations. Reasonable accommodations is anything that does not constitute an undue hardship. An undue hardship can either be financial or logistical. With respect to financial, the entire resources of the entity are going to be looked at. Also, most accommodations do not cost a lot of money to begin with. So, proving a financial undue hardship will be very difficult. With respect to logistical, the best way to think of it is in terms of title II and title III concepts of fundamental alteration to the nature of the business.

N.11. When an employee requests a reasonable accommodation related to COVID-19 under the ADA, may the employer request supporting medical documentation before granting the request? (12/14/21)

Yes. As with employment accommodation requests under the ADA for any other potential disability, when the disability or need for accommodation is not obvious or already known, an employer may ask the employee to provide reasonable documentation about disability and/or need for reasonable accommodation. Often, the only information needed will be the individual’s diagnosis and any restrictions or limitations. The employer also may ask about whether alternative accommodations would be effective in meeting the disability-related needs of the individual. See WYSK Questions D.5. and D.6. for more information.

The employer may either ask the employee to obtain the requested information or request that the employee sign a limited release allowing the employer to contact the employee’s health care provider directly. If the employee does not cooperate in providing the requested reasonable supporting medical information, the employer can lawfully deny the accommodation request.

Response: The key here is that any information sought must be narrowly focused on the disability and/or the need for reasonable accommodation. Meeting that standard in most cases will not be difficult. The moral of the story for employers is don’t go on a fishing expedition. Keep any inquiries narrowly focused to assessing the disability and what reasonable accommodations might work for that person to do the essential functions of the job.

N.12. May an employer voluntarily provide accommodations requested by an applicant or employee due to COVID-19, even if not required to do so under the ADA? (12/14/21)

Yes. Employers may choose to provide accommodations beyond what the ADA mandates. Of course, employers must provide a reasonable accommodation under the ADA, absent undue hardship, if the applicant or employee meets the definition of disability, requires an accommodation for the disability, and is qualified for the job with the accommodation. Accommodations might consist of schedule changes, physical modifications to the workplace, telework, or special or modified equipment. See, e.g., WYSK Section D or U.S. Department of Labor Blog, Workers with Long COVID-19: You May Be Entitled to Workplace Accommodations for more information.

Response: Telework is specifically mentioned here as a reasonable accommodation. With respect to how do you determine whether attendance is an essential function of the job, this blog entry is my go to.

Applicability of Definition of Disability

N.13. If an employer subjected an applicant or employee to an adverse action, and the applicant or employee is covered under any one of the three ADA definitions of disability, does that mean the employer violated the ADA? (12/14/21)

No. Having a disability, alone, does not mean an individual was subjected to an unlawful employment action under the ADA.

For example, the fact that an applicant or employee has a current disability, or a record of disability, does not mean that an employer violated the ADA by not providing an individual with a reasonable accommodation. As discussed in Section D., there are several considerations in making reasonable accommodation determinations, including the employee’s need for the accommodation due to a disability and whether there is an accommodation that does not pose an undue hardship to the employer.

Similarly, the fact that an employer regarded an applicant or employee as an individual with a disability does not necessarily mean that the employer engaged in unlawful discrimination. For example, the ADA does not require an employer to hire anyone who is not qualified for the job. Moreover, in some instances, an employer may have a defense to an employment action taken based on an actual impairment, such as where the individual poses a direct threat to the health or safety of themselves or others in the workplace.

Response: A rather confusing, but in the end a straightforward application of the ADA and its final implementing regulations

N.14. Do any ADA protections apply to applicants or employees who do not meet an ADA definition of disability? (12/14/21)

Yes. The ADA’s requirements about disability-related inquiries and medical exams, medical confidentiality, retaliation, and interference apply to all applicants and employees, regardless of whether they have an ADA disability. By contrast, an individual must have a “disability” to challenge employment decisions based on disability, denial of reasonable accommodation, or disability-based harassment.

 

Response: Straightforward

 

Summarizing thoughts: Much of this guidance is arguably unnecessarily confusing, especially if you adopt some preventive law approaches. The key takeaways to this update being that Covid-19 very well could be a disability and that long-haul Covid-19 most probably is. Many guidances are unfortunately unnecessarily confusing and therefore, lawyers should always remember to do an independent analysis. My favorite example of a guidance that is not unnecessarily confusing and does a great job of educating people that it needs to educate was the one discussed in this blog entry.

Before getting started on the blog entry for the week, which as I promised is a recap of the oral arguments held last Tuesday in two cases that very much could affect the world of disability rights, I would be remiss if I did not acknowledge the passing of Bob Dole. When it comes to the ADA, the two senators that come to mind immediately are Bob Dole on the Republican side and Tom Harkin on the Democratic side. Bob Dole was a tireless advocate for people with disabilities and was disabled himself. His record of service was incredible. He will definitely be missed. People with disabilities owe him a great debt of gratitude. More information about Bob Dole and what he accomplished can be found here.

 

Turning to the subject of the blog entry of the day, Becerra and Cummings, the Supreme Court heard oral argument in both cases last Tuesday. Becerra is a case that brings up the utility of Chevron deference. Cummings is the case that raises the issue of whether emotional distress damages are available under §504 of the Rehabilitation Act. As usual, the blog entry is divided into categories and they are: Becerra; Cummings intro; Cummings oral argument/Questions from the Justices; and Cummings if I were a betting person. Of course, the reader is free to read any or all of the blog entry. Since the blog entry is so short, the reader is probably going to want to read the whole thing, but I could see a reader just reading the Becerra or Cummings section too.

 

I

Becerra

 

  1. The case involves interpreting a Medicare statute and its final implementing regulations. The final implementing regulations and how it got to that point are a mess and the parties did not disagree with that.
  2. The question before the court was essentially whether you could refuse to apply Chevron deference to a situation where the rulemaking was so messed up that only two people in the United States understood the rule.
  3. If I was a betting person, it looks like there was a majority of Justices ready to hold that a court does not have to apply Chevron deference when the procedural history of a rule is totally messed up and the final rule tortures the plain meaning of words. Such a holding would be an expansion of when a court does not have to find Chevron deference applicable. Such a holding would also not throw out Chevron deference entirely but just expand the ability of courts to not apply it. There are Justices that would like to throw Chevron deference out entirely but that wouldn’t be necessary in this case. Justice Roberts tends to be more of an incrementalist this way, and so he may be particularly receptive to that approach.

 

II

Cummings introduction

 

  1. In Barnes v. Gorman, here, the Supreme Court said that compensatory damages are available under the Rehabilitation Act but not punitive damages.
  2. Gebser, which Liese (discussed here), adopted, set out just what is deliberate indifference.
  3. The Rehabilitation Act is a contractual matter.
  4. A line of cases stretching back forty years says that innkeepers and common carriers that discriminate can be liable for emotional distress damages under §504.

III

Cummings Oral Argument/Question from the Justices

 

  1. Justice Barrett was interested in figuring out the best analogy for the case. She wondered whether the innkeepers and common carrier line of cases was the best analogy. Those cases have long held emotional distress damages are available in §504 cases.
  2. Justice Kavanaugh and many other Justices were concerned about emotional distress damages being uncapped.
  3. Justice Roberts pointed out that contractual remedies are a matter of state law, which isn’t all that helpful when trying to resolve the question before them.
  4. Justice Alito wanted a better understanding of the emotional cost of the discrimination. Justice Breyer in one of his hypotheticals attempted to address that concern.
  5. Justice Kagan, like Justice Barrett, also wondered if the common carrier and innkeeper cases was not the most analogous line of cases to look to.
  6. Justice Kavanaugh wondered why the nondiscrimination statutes should not be looked at.
  7. When it comes to Rehabilitation Act cases, the question is whether the contractual obligation was clear to the defendant. Justice Alito wondered whether that was a subjective or objective standard.
  8. There is also a line of cases saying that where nonpecuniary interests are involved, emotional distress damages are on the table. Justice Kagan wondered whether that line of cases was the best one to look to.
  9. Justice Barrett pointed out that emotional distress damages in §504 cases has been going on for 40 years.
  10. Justice Kavanaugh also wondered whether the innkeeper line of cases was not the best line of cases to look to.
  11. Justice Kagan pointed out that discriminatory harms are often stigmatic.
  12. Justice Gorsuch was pretty much silent.

 

IV

Cummings If I Were a Betting Person

 

  1. Reading tea leaves based on Supreme Court oral arguments is always a fools errand, but it is fun to try.
  2. If I were a betting person, I am going to say that the Supreme Court is going to say by more than a simple majority that §504 of the Rehabilitation Act allows for emotional distress damages providing a person can show deliberate indifference per Gebser/Liese. By going with Gebser/Liese, the Supreme Court would also be able to say that deliberate indifference is different than punitive damages when it comes to §504 claims. So, there is no conflict between such a holding and the holding in Barnes v. Gorman. Such a holding would also allow the Supreme Court to be able to address their worry about uncapped emotional distress damages because deliberate indifference is a high standard.