Trainings & Events Calendar
October Ask an ADA Pro
Ask an ADA Professional Questions RE: Post-Secondary Education and the ADA
Wednesday, September 21, 2022
October ADA Audio Conference Series
Disability and DEI (Diversity, Equity, and Inclusion) Panel Discussion
Tuesday, October 18, 2022
November ADA Legal Webinar Series
Wednesday, November 16, 2022
November Section 508 Best Practices Webinar
DEIA: What Does It Mean to Have Accessibility in the Federal Workplace?
Tuesday, November 29, 2022
In Focus
National Disability Employment Awareness Month (NDEAM) – “Disability: Part of the Equity Equation”
The Office of Disability Employment Policy (ODEP) recently announced their theme for National Disability Employment Awareness Month (NDEAM), “Disability: Part of the Equity Equation.”
Resources and materials produced by the ODEP are now available. These resources can assist your organization in planning and implementing NDEAM 2022 activities.
Contact ODEP to order a free NDEAM poster or download a copy today. Posters and their visual descriptions are available in English or Spanish on ODEP’s NDEAM 2022 initiative website.
Seeking Public Comment
The U.S. Access Board is seeking public comment on accessibility guidelines for Self-Service Transaction Machines (SSTMs), such as kiosks. An advanced notice of proposed rulemaking (ANPRM) was issued on September 21, 2022.
You can submit comments via Regulations.gov thru November 21, 2022.
News from the White House
As part of National Recovery Month, the U.S. Department of Health and Human Services (HHS) awarded $1.5 billion to support states, tribal lands, and territories in their efforts to address opioid addiction and assist recovery. Read more about new funding and recovery supports that address the opioid crisis.
For individuals and families facing substance use disorders, contact 1-800-622-HELP (4357) for free and confidential treatment referrals and information services.
In a recent White House briefing on voting access, the Department of Justice was highlighted for their plain-language guide to federal voting rights laws. This guide includes sections on “Voting with Limited English Proficiency” and “Voting with a Disability.”
The Department has also produced a plain-language guide describing each state’s voting rules for persons with criminal convictions.
Learn more about how the White House is promoting voter access.
Manage new variants of COVID-19 this fall by getting an updated booster shot. Read more about updated COVID-19 boosters.
Contact the Administration for Community Living’s Disability Information and Assistance Line (DIAL) at 888-677-1199 for help finding vaccination locations, making appointments, and overcoming barriers, such as transportation.
Bidens Mark Anniversary of ADA with White House Reception
President Joe Biden and First Lady Jill Biden marked the anniversary of the Americans With Disabilities Act (ADA) and Disability Pride Month with a White House celebration on Wednesday, September 28, 2022.
Read more about the reception and the President and First Lady’s remarks.
Federal Agency News
Department of Justice
Justice Department Intervenes in Betancourt-Colon v. City of San Juan (Released 9-20-2022)
The complaint alleges that San Juan, Puerto Rico failed to provide people with mobility disabilities equal access to its public sidewalks. DOJ previously filed a Statement of Interest in this lawsuit on November 9, 2020, asserting the long-held position that a public entity’s provision and maintenance of public sidewalks is a covered “service” under Title II of the ADA.
U.S. Department of Labor
Mental Health and Employment Working Group Applauded by DOL (Released 9-16-2022)
The Department of Labor’s Assistant Secretary for Disability Employment Policy, Taryn Williams, praised the collaboration between the State Exchange on Employment and Disability and the U.S. Conference of Mayors which led to the development of this group. Their work will focus on identifying policies, plans and practices to address and support workers’ mental health needs.
Regional News
Indiana
$950,000 Awarded to Indiana Nonprofits to Help with Affordable Housing
The Indiana Housing First Program connects people with mental illness or chronic chemical addiction to housing without conditions such as sobriety or participation in supportive services. Participants must have a lease and pay a percentage of their monthly income toward rent.
Read more about the Indiana Housing and Community Development Authority’s housing grants.
Federal Judge’s Ruling Improves Absentee Ballot Access for Voters with Disabilities in General Election.
In advance of the approaching midterm election in Indiana, the Honorable Jane Magnus-Stinson ordered increased access by granting voters with print disabilities the freedom to select the person of their choice to assist in marking their paper absentee ballot. A “voter with print disabilities” is a voter who cannot independently mark a paper ballot or ballot card due to blindness, low vision, or a physical disability that limits manual dexterity. In short, a voter with a print disability cannot physically mark their ballot without assistance.
Minnesota
Legal Settlement Supports Community Living and Independence for Persons with Disabilities
The newly announced settlement agreement will require the Minnesota Department of Human Services (DHS) to notify individuals requesting individualized housing options about transition services, known as Housing Stabilization Services. DHS will also require training for all case managers, publish data to measure the amount of people transitioning out of group homes, and provide information on appealing a denial of Housing Stabilization Services.
Ohio
Disability Rights Ohio (DRO) Provides Free Special Education Legal Clinics for Parents and Guardians
Virtual clinics are offered on the third Monday of each month, from 12-1 pm, and will continue through July 2023. Each clinic includes a workshop followed by a 30-minute Q&A hosted by a panel of attorneys. The workshops are recorded and available to view at any time. Ohio parents and guardians of children with disabilities from ages 3-22 can benefit from the Clinic.
Register and learn more about the Special Education Legal Clinic.
Representatives Brigid Kelly and Dontavius Jarrells introduced Ohio House Bill 716 - "Eliminate subminimum wage for persons with disabilities."
Under provision 14(c) in the 80-year-old Fair Labor Standards Act, employers are able to apply for permits to pay people with disabilities far under the current $7.25 hourly minimum wage. More than three-quarters of a century later these subminimum wages remain not just legal, but accepted and practiced, in several states. These subminimum wages assume people with disabilities are incapable of integrating into the general labor workforce, a belief at odds with the disability policy framework that has emerged over the past 40 years. This House bill focuses on ensuring Ohioans with disabilities are paid a fair wage for their work.
Ohio is Helping People with Disabilities Find Jobs
Gov. Mike DeWine signed an Executive Order making the state a disability inclusion state. What does that mean? Opportunities for Ohioans with Disabilities (OOD) Director Kevin Miller says one main goal is to help people with disabilities get a job. Miller says this begins with awareness. Ohio is committed to training every state employee in disability etiquette and awareness.
Wisconsin
Absentee Ballot Return Assistance for the Nov 8th Election.
A federal court has affirmed the right of voters with disabilities to use ballot return assistance. Disability Rights Wisconsin is receiving questions from disabled voters who need assistance mailing or delivering their absentee ballots. These practices were restricted in the April and August elections because of litigation. An August 31st court order clarified that federal law protects the right of all disabled Wisconsin voters to receive assistance from a person of their choice to mail or deliver their absentee ballots.
New Guardianship and Voting Resources
In Wisconsin, people under guardianship retain the right to vote unless the court expressly removes that right. Wisconsin residents who have lost the right to vote due to guardianship may petition the court to restore their right to vote. Disability Rights Wisconsin has new resources on the topic of Guardianship and Voting: Preserving and Restoring the Right to Vote.
Lawsuit & Settlement Agreement Highlights
National Highlights
Title I: Employment
Senior Living Residence Revokes Job Offer Due to Failed Drug Test (Released 9-21-2022)
The EEOC has filed suit against employer, Princess Martha, LLC, for revoking a job offer after an applicant’s prescribed PTSD medication prevented her from passing a required drug test. While drug testing is allowed, employers are responsible for ensuring the results are not used in violation of federal anti-discrimination laws, such as the ADA.
What 3 COVID-19-Related ADA Cases Say About EEOC’s Compliance Priorities
As the EEOC moves forward on three suits filed in September 2021, the legal landscape continues to change as a result of pandemic-related cases. Below are the cases:
- EEOC v. U.S. Drug Mart Inc. – A worker who allegedly endured harassment for asking to wear a face mask.
- EEOC v. 151 Coffee, LLC – A coffee shop that allegedly denied accommodation of less face-to-face contact.
- EEOC v. ISS Facility Services, Inc. – A worker denied the accommodation of working from home two days per week.
Indiana Police Department Revokes Job Offer Due to Applicant’s HIV Diagnosis (Released 9-20-2022)
The Town of Clarksville, Indiana entered into a consent decree with the Justice Department after allegations that the Town’s police department unlawfully revoked a job offer to a qualified officer based on his HIV status. The decree requires policy revisions for employment-related medical exams, training for employees making personnel decisions, and $150,000 in damages for the complainant.
Security Company Fired Employee Citing Concerns Over Disability and Age (Released 9-22-2022)
After experiencing a heart attack on the job, a 57-year-old employee claims he began receiving comments from his supervisor that he should retire due to his age and condition. In 2020 during the COVID-19 pandemic, the employee was officially asked to resign after being repeatedly passed over for work assignments. The employee refused and was fired. While the pandemic has changed the ways in which America works, it has not changed the ADA protections for persons with disabilities in the workforce.
Sinclair Broadcast Group, Inc. Fires Employee with Schizoaffective Disorder (Released 9-23-2022)
The EEOC has charged Sinclair Broadcast Group with unlawfully firing a helpdesk technician due to a diagnosis of schizoaffective disorder. Under Title I, the ADA requires employers to consider and provide reasonable accommodations to individuals with disabilities unless this would case an undue hardship.
EEOC Sues BaronHR and Radiant Services for Discriminatory Recruitment and Hiring (Released 9-13-22)
The U.S. Equal Employment Opportunity Commission (EEOC) filed suit against the national staffing agency BaronHR, LLC and Radiant Services Corporation, a commercial laundry facility that serves the hospitality industry in Southern California, for discriminatory denial of employment based on race, national origin, and sex, the federal agency announced today.
EEOC alleges that BaronHR required that applicants have no medical conditions or history of injury. BaronHR’s unlawful hiring criteria excluded qualified individuals with disabilities, perceived disabilities, or a record of a disability.
EEOC Sues Eagle Marine Services for Disability Discrimination. (Released 9-26-22)
The lawsuit alleges that Eagle Marine Services Electrical & Refrigeration, LLC violated the ADA when it refused to hire or accommodate a worker using prescribed ADHD medication. The employer failed to make an individualized assessment of the worker’s medication use or whether it would affect the safe performance of his job, relying instead on stereotypes about disability and medication to justify its decision not to hire him.
EEOC Sues Omaha Hospitality Group for Disability Discrimination (Released 9-28-22)
Operators of a hotel violated federal law when they fired a general manager after being hospitalized for depression. According to the suit, the manager advised human resources that he was going to miss work because he was experiencing depressive symptoms including anger, frustration, and thoughts of self-harm without any apparent trigger, and needed to go to the hospital for treatment. Two days later a company representative told him he was being fired because they were afraid he might hurt other people.
International Paper Co. to Pay $65,000 to Settle EEOC Disability Discrimination Suit (Released 9-28-22)
According to the lawsuit, the claimant received an offer of employment conditioned upon a medical examination and a negative drug test. The applicant disclosed that he was diagnosed with attention deficit hyperactivity disorder (ADHD) and prescribed Adderall, a medication used to treat ADHD. The applicant’s drug test showed a positive result for amphetamines, and the employer revoked the applicant’s conditional job offer. The applicant was informed that the decision to revoke his job offer was because he did not pass the drug test. The applicant contacted the company twice to provide his treating physician’s phone number and explained that he believed the company had violated the ADA. This information had no impact on the company’s decision to revoke the applicant’s job offer.
Walgreens Sued by EEOC for Pregnancy and Disability Discrimination (Released 9—28-22)
The lawsuit alleges that Walgreens refused to allow a pregnant worker with disabilities to take emergency leave to seek medical attention, forcing her to quit. A pregnant customer sales associate with diabetes and hypoglycemia was spotting while pregnant and asked the store manager to allow her to take unscheduled, emergency leave to seek medical attention. Although the store manager and team lead could have covered for her, the store manager told the pregnant employee she could not leave until they found a replacement for her and were unable to find one. The store manager then told her she had already asked for too many accommodations. The customer sales associate had no option but to resign, per her doctor’s advice. She miscarried later that day.
EEOC Sues Lyneer Staffing, LLC for Disability Discrimination (Released 9-28-22)
A deaf applicant sought a position working in a warehouse through Lyneer Staffing LLC. Initially, she was referred to the client-employer. The client-employer accepted her as a worker and assigned her a start date. Before the applicant could start work a manager at Lyneer Staffing learned of the referral and instructed a subordinate to cancel the assignment due to the applicant’s disability. A representative of Lyneer Staffing then contacted the applicant and informed her that she could not be placed in the position because the employer did not have sign language interpreters available. However, Lyneer Staffing’s client was always willing to employ the applicant.
Pharmacist Wins $134,000 Jury Award in ADA Service Dog Case
Missouri-based Bothwell Regional Health Center is paying $134,000 after violating the ADA by not allowing a pharmacist to use her service dog as an accommodation. The hospital claimed they could not accommodate the dog due to concerns about sterility. However, the pharmacy was not treated as a sterile environment and was not maintained with cleanliness standards that would have been expected of a sterile environment.
Reassignment to a New Manager Isn’t a Disability Accommodation, 11th Circuit Court Confirms
After experiencing hostile behavior from a manager at an Air Force base commissary, an employee sued the U.S. Department of Defense under the Rehabilitation Act of 1973 for refusing to consider her doctor’s recommendation that she be reassigned to a different location with new supervision. While courts have determined that reassignment to a vacant position can be considered a reasonable accommodation, the 11th Circuit upheld the decision that requesting new supervision was not reasonable.
Title II: State and Local Government
Indiana State Board of Nursing Permits Opioid Use Disorder (OUD) Medication for Nurses in Statewide Recovery Program (Released 9-2-2022)
The Indiana State Board of Nursing violated Title II of the ADA by prohibiting the use of medication to treat OUD in the Indiana State Nursing Assistance Program. This program supports nurses in recovery from addiction and is often required for reinstatement of a license. On September 1, 2022, the Board agreed to allow nurses to participate in the program while taking OUD medication if it is prescribed by a licensed practitioner and incorporated into a recovery monitoring agreement.
Justice Department Secures Settlement with Iowa School District Concerning Discriminatory Seclusion and Restraint Practices
The Department of Justice’s Civil Rights Division and the U.S. Attorney’s Office for the Northern District of Iowa announced a settlement agreement with the Cedar Rapids Community School District in Iowa, to address the discriminatory use of seclusion and restraint against students with disabilities.
Under the settlement agreement, the Cedar Rapids Community School District has voluntarily agreed to end the use of seclusion, reform its restraint practices, and improve its staff training on anticipating, appropriately addressing and de-escalating students’ disability-related behavior through appropriate behavioral interventions.
U.S. Attorney’s Office Reaches Agreement with Town of Limerick to Improve Voter Accessibility
The settlement agreement resolves an Americans with Disabilities Act (ADA) complaint filed by a voter with a mobility impairment who alleged that he was unable to vote at Limerick’s annual town meeting. The voter alleged that he was told that the first floor of Limerick Town Hall was full, and he would need to vote on the second floor which he was unable to access.
Under the settlement agreement, Limerick has agreed to make certain modifications to improve accessibility at its town hall for persons with mobility impairments.
Title III: Public Accommodations
Vision Center in Colonial Heights Agrees to Settle ADA Allegations
The United States Attorney’s Office announced a settlement agreement under the Americans with Disabilities Act (ADA) with Colonial Heights Vision Center Optometry, PC (CHVC), a professional eye care center.
The settlement agreement resolves allegations that CHVC’s eye exam chair and equipment were not accessible to patients with mobility disabilities, who use mobility equipment such as walkers, scooters, or wheelchairs, and that CHVC had a practice of asking patients who use mobility devices to bring an attendant-such as a family member or friend-to facilitate manual transfer into the exam chair.
Helping Hands Caregivers Agrees to Settle ADA Allegations
The U.S. Attorney’s Office for the Eastern District of Wisconsin reached a settlement agreement under Title III of the ADA with Helping Hands Caregivers LLC to resolve allegations that the company refused to provide in-home caregiving services to an individual with HIV. The agreement includes adoption of a non-discrimination policy, training of staff, written notification to the Department of future complaints, and $10,000 in compensatory damages for the individual.
Published Reports & Tools
Updated Neurodiversity in the Workplace Toolkit
The Employer Assistance and Resource Network on Disability Inclusion recently revamped its Neurodiversity in the Workplace Toolkit. The toolkit offers strategies to help employers recruit, hire, retain and advance neurodivergent workers and provides information on workplace accommodations, mentorship, and more. The toolkit explains how neurodivergent employees can help support workplace productivity, overall staff performance as well as other benefits of a neurodiverse workforce.
States use ARPA Funds to Boost Employment for People with disabilities.
The National Conference of State Legislators, in collaboration with the State Exchange on Employment & Disability, published a new resource, “States Uses of ARPA Funds to Boost Employment for People with Disabilities,” that explores state actions to increase opportunities for people with disabilities and grow the post-pandemic labor force. Strategies highlighted range from supporting private employers seeking to diversify their workforce to expanding state hiring initiatives.
Question and Answer for the Month
Question: How does an employer determine whether a particular job can be performed at home?
Answer: In determining which accommodations are reasonable such as remote work, the employer and employee need to identify what responsibilities are essential and which are minor.
Essential functions are duties or tasks:
- That the employee in the position is required to perform.
- That if removed, would fundamentally alter the position.
- Would there be significant consequences if this function were not performed?
- Where a limited number of other employees are available to perform the functions.
- Can other employees do this function if necessary?
- That are the reason the job exists.
- How much time per week is spent doing this function?
- Could this function be performed in a different way?
- That are highly specialized.
- What critical skills, experience, training, education, and/or license are needed?
An employer does not have to remove any essential job duties to permit an employee to work at home. However, it may need to reassign some minor job duties or marginal functions (i.e., those that are not essential to the successful performance of a job) if they cannot be performed outside the workplace, and they are the only obstacle to permitting an employee to work at home. If a marginal function needs to be reassigned, an employer may substitute another minor task that the employee with a disability could perform at home to keep employee workloads evenly distributed.
After determining what functions are essential, the employer and the individual with a disability should determine whether some or all the functions can be performed at home. For some jobs, the essential duties can only be performed in the workplace. For example, food servers, cashiers, and truck drivers cannot perform their essential duties from home. But, in many other jobs, some or all the duties can be performed at home.
If the employer determines that some job duties must be performed in the workplace, then the employer and employee need to decide whether working part-time at home and part-time in the workplace will meet both of their needs.
Learn more:
- Work at Home/Telework as a Reasonable Accommodation | U.S. Equal Employment Opportunity Commission (eeoc.gov)
- Telework (askjan.org)
Highlighted Resource of the Month
The Job Accommodation Network (JAN) is the leading source of free, expert, confidential guidance on job accommodations and disability employment issues.
For more information, check out JAN’s website.
Staying Connected
Stay informed on the ADA, disability topics, and resources by following us on social media @ADAGreatLakes.
Check out one of our most recent popular posts, image to the left:
The Great Lakes ADA Center celebrates National Service Dog Month by highlighting Dr. Anjali Forber-Pratt, Director of the National Institute on Disability, Independent Living, & Rehabilitation Research (NIDILRR). Learn more about her: Leadership | ACL Administration for Community Living
