September 2022

Volume 15 Issue 10 

 

The U.S. Food and Drug Administration Finalizes Historic Rule Enabling Access to Over-the-Counter Hearing Aids for Millions of Americans

The U.S. Food and Drug Administration issued a final rule to improve access to hearing aids which may lower costs for millions of Americans. This action establishes a new category of over-the-counter (OTC) hearing aids, allowing consumers with mild to moderate hearing impairment to buy hearing aids directly from stores or online retailers without the need for a medical exam, prescription or a fitting adjustment by an audiologist.

The HHS Office for Civil Rights (OCR) is accepting comments on a proposed rule implementing Section 1557 of the Affordable Care Act (ACA), which prohibits discrimination based on race, color, national origin, sex, age, or disability in covered health programs and activities. The proposed rule would strengthen civil rights protections for people who use health programs and services funded by HHS and includes several provisions that are relevant to older adults and people with disabilities. You can submit comments via Regulations.gov thru November 9, 2022.

The National Council on Disability (NCD) announces a public preview of its new website.

The site, located at beta.ncd.gov, uses the Federalist platform, a product of the General Services Administration.

Visitors are welcome to take a look and make recommendations to this early in-progress version of the site. NCD welcomes input to improve all aspects of the user experience. The site feedback form is located at https://beta.ncd.gov/feedback or you can send an email to publiccomment@ncd.gov.

Ohio

Disability Rights Ohio is partnering with Centers for Independent Living to host meet and greets with the in-district offices of Ohio’s U.S. Representatives. Covering the Akron, Cleveland, Dayton, and Cincinnati areas, these events will allow advocates with different backgrounds, experience, and viewpoints to connect with those charged with representing them.

To register and learn more about the dates and locations, check out the event flyer.

Wisconsin

Carey v Wisconsin Election Commission

On August 18, 2022, the Justice Department filed a Statement of Interest in Carey, et al. v. Wisconsin Election Commission, clarifying the obligation to provide assistance to voters with disabilities under Section 208 of the Voting Rights Act and Title II of the ADA. Plaintiffs argue that Wisconsin law violates Section 208 by barring the assistance they need to return their absentee ballots to be counted and that the ADA requires Wisconsin to make reasonable modifications in policies, practices, and procedures when the modifications are necessary to avoid discrimination on the basis of disability.

Disability Rights Wisconsin Awarded $600,00 Grant to Represent Survivors with Disabilities

The U.S. Department of Justice announced that it would award the Disability Rights Wisconsin Victim Advocacy Program (VAP) a 3-year Office on Violence Against Women (OVW) grant to provide comprehensive civil legal services to survivors with disabilities who have experienced domestic violence, sexual abuse, dating violence, or stalking. The grant will enable DRW’s VAP attorneys to provide robust representation and hire experts who can help courts and juries understand how a person’s specific disability impacts their lives, and how the disability itself can be unfairly used against them in an abusive situation. Importantly, VAP attorneys will be able to represent survivors in their abuser’s criminal court cases and protect them from unnecessary psychological examinations or inquiry into their medical records.

EEOC Sues Broadleaf and Conduent for Disability Discrimination

Conduent State and Local Solutions, Inc., a business services provider that operates the New York E-ZPass toll collection system, and Broadleaf Results, an employment agency, violated federal law when they both failed to accommodate a customer service representative’s disability and then fired her.

According to the lawsuit, the employee was placed by Broadleaf to work as a customer service representative at Conduent’s E-ZPass Customer Service Center in Staten Island, N.Y. The employee notified Broadleaf and Conduent supervisors that she was having difficulties hearing customer calls and requested an accommodation for her hearing-related impairment. Despite being told that her disability could be accommodated, neither employer initiated the process necessary to identify a suitable accommodation for her disability. The employee requested a meeting with management to discuss the status of her accommodation request. However, the employee was told by Broadleaf management, “If you cannot hear, then you can’t do the job,” and was terminated, effective immediately.

Gas Field Specialists to Pay $184,000 to Settle EEOC Disability Discrimination Case

Gas Field Specialists, Inc. (GFS), Pennsylvania-based natural gas well service company, will pay $184,000 and provide significant injunctive and other non-monetary relief to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC).

According to the lawsuit, an employee who had been with the company for 15 years was laid off and then terminated based on a disability or record of disability. GFS fired the employee because he had a history of cancer. An owner of the company told the employee that the company didn’t want him to get sick with COVID-19 and had to lay off anyone with health issues during the COVID pandemic.

EEOC Sues Walmart for Disability Discrimination

Wal-Mart Stores East, LP violated federal law when its Aiken, South Carolina retail store failed to provide reasonable accommodation to a part-time sales associate and then placed him on indefinite unpaid leave.

According to the lawsuit, shortly after hiring Luis Quiñones, who has a disability, Walmart accommodated Quiñones by allowing him to use one of the store’s electric carts to perform his job duties, which included stocking shelves. Approximately seven months later, and several months after Quiñones had completed his probationary period with the use of the store’s electric cart, a new manager told Quiñones he was no longer able to use the cart and sent him home without pay.

Walmart offered no explanation other than telling Quiñones that the store’s electric carts are for customer use only, even though other employees were permitted to use the carts to accommodate temporary injuries. Walmart told Quiñones he would have to provide his own electric cart or transfer to a self-checkout host position.

EEOC Sues Salvation Army for Disability Discrimination

The Salvation Army violated federal law at its Ann Arbor, Michigan thrift store when it fired a cashier because of his mental and physical disa¬bilities.

According to the lawsuit, an employment coordinator from Michigan Ability Partners attended the employee’s initial interview and advised the store manager of the employee’s disabilities. The employee was hired with the understanding that he would have a job coach present during his 90-day probationary period.

A month and a half after the employee successfully completed his probationary period, the store manager who hired him was replaced by a new manager. The new manager immediately demonstrated animus towards the employee, which included chastising him for disability-related involuntary movements, refusing to allow additional job coaching, and disciplining him for minor mistakes. Soon after new cashiers were hired, the manager terminated the employee.

Goochland Powhatan Community Services Agrees to Settle Americans with Disabilities Act Complaint

The United States Attorney’s Office announced a settlement agreement under the Americans with Disabilities Act (ADA) with Goochland Powhatan Community Services (GPCS), which is the Community Service Board and local government mental health agency for Goochland and Powhatan Counties.

The settlement agreement resolves allegations that GPCS failed to furnish sign language interpreting services during multiple interactions with an individual who is deaf during a 33-month period, including monthly interactions when GPCS personnel were supposed to assess the individual for, among other things, previously unidentified risks, injuries, needs, or other changes in status, and the individual was supposed to have an opportunity to provide meaningful input and feedback about the services being provided.

Justice Department Announces Conclusion of Landmark Agreement Addressing Segregated Work Settings for People with Disabilities

The U.S. District Court for the District of Oregon found that the State of Oregon has fulfilled the terms of a settlement agreement with the Justice Department and people with disabilities in a landmark case challenging the state’s provision of employment services for people with disabilities in segregated settings. The case, Lane v. Brown/United States v. Oregon, was dismissed as a result.

The settlement agreement, in effect since 2015, resolved the first lawsuit in the nation to challenge a state’s reliance on segregated employment settings for individuals with disabilities, including sheltered workshops, as a violation of the integration mandate of Title II of the Americans with Disabilities Act (ADA). Sheltered workshops are segregated facilities that exclusively or primarily serve individuals with disabilities, in which people with disabilities have little or no contact with non-disabled persons besides paid staff.

Justice Department to Monitor Compliance with Federal Voting Rights Laws in Alaska Jurisdictions

The Justice Department announced that it will monitor the Aug. 16, 2022, federal primary election in certain jurisdictions in the State of Alaska to ensure compliance with the minority language accessibility requirements of the Voting Rights Act of 1965 and the disability accessibility requirements of the Americans with Disabilities Act of 1990. On election day, the Civil Rights Division will be monitoring in the following jurisdictions: Municipality of Anchorage, City and Borough of Juneau, Bethel Census Area, Dillingham Census Area and Kusilvak Census Area. During early/absentee voting, the Division has also monitored in the following jurisdictions: Municipality of Anchorage, City and Borough of Juneau, Kenai Peninsula Borough, Matanuska-Susitna Borough, Denali Borough, Fairbanks North Star Borough and Yukon-Koyukuk Census Area.

Gender Dysphoria is Covered Under the ADA, Appeals Court Rules

The Americans with Disabilities Act does not exclude gender dysphoria from its definition of disability, the 4th U.S. Circuit Court of Appeals held in a decision observers say could have implications in the employment law space.

The case involved a transgender woman with gender dysphoria who spent six months incarcerated in a Virginia prison. The plaintiff alleged that, during her incarceration, she experienced delays in medical treatment for her gender dysphoria, as well as harassment and persistent and intentional misgendering by prison staff, which she argued violated of state and federal statutes, including the ADA.

Center City Steakhouse Enters into Agreement with the Government to Resolve ADA Compliance Issues

Del Frisco’s Restaurant Group, Inc. (“Del Frisco’s”) entered into a Voluntary Compliance Agreement to resolve the government’s ADA compliance review of its Philadelphia Del Frisco’s Double Eagle Steakhouse location on Chestnut Street. Designed and built in what was a nearly empty space in 2008, the restaurant was found to have several architectural barriers that violate the ADA.

The agreement requires the restaurant to take steps to remove specific barriers to accessibility identified by the Department of Justice during its inspection. The agreement also requires Del Frisco’s to identify and correct violations of the ADA that may exist in each of its other locations nationwide, including 16 Del Frisco’s Double Eagle Steakhouse restaurants and 17 Del Frisco’s Grille locations.

U.S. Attorney’s Office Reaches Settlement with City of Denver and Concert Promoters Relating to Overcharging for Wheelchair-Accessible Seating at Red Rocks Amphitheatre

The U.S. Attorney’s Office for the District of Colorado announced that the United States has resolved a discrimination claim under the Americans with Disabilities Act (ADA) against the City and County of Denver and concert promoters Live Nation, AEG, and PBS12.

The Department of Justice received a complaint that wheelchair-accessible seats for concerts held at Red Rocks Amphitheatre were more expensive than tickets for non-accessible seats. The U.S. Attorney’s Office investigated the complaint and alleged that the City and County of Denver, which owns Red Rocks, and concert promoters violated the ADA by charging more for wheelchair-accessible seats than was allowed under ADA regulations.

Covenant Health Settles Americans with Disability Act Claim with United States

The United States reached a settlement on August 19, 2022, with Covenant Health (Covenant). Covenant is a not-for-profit health care organization headquartered in Knoxville, Tennessee. In a complaint filed in the U.S. District Court for the Eastern District of Tennessee, a complainant, who is deaf, alleged that he was denied effective communication under the Americans with Disabilities Act (ADA) during emergency department visits and an in-patient hospital admission.

During its investigation, the U.S. Attorney’s Office found that the complainant attempted to enter Ulta with her service animal. An Ulta employee told the complainant she was not allowed to enter the store with her service animal, and incorrectly told her a North Dakota cosmetology statute prohibited service animals without documentation.

The complainant alleged he went to Covenant facilities after experiencing numbness and pain in his leg. The complainant alleged that the virtual interpreter services offered were ineffective and that no live interpreter services were provided to him despite repeated requests. The complainant alleged that he did not understand the reasons for his admissions, the treatment plan, or his discharge instructions. The U.S. Attorney’s Office for the Eastern District of Tennessee opened a civil investigation into these allegations under the ADA. Covenant and the United States have reached a settlement to resolve this investigation.

First Urology Refused to Assist Patients with Mobility Disabilities in Transferring to Exam Tables and Diagnostic Equipment

First Urology, P.S.C., the largest provider of urologic care in the greater Louisville and Southern Indiana area, has agreed to pay $60,000 to resolve allegations that it violated the Americans with Disabilities Act (ADA) by failing to provide individuals with mobility disabilities equal access to its services and facilities. The allegations involved First Urology’s “Lifting Policy,” which provided it would not assist patients in transferring to examination tables or other diagnostic equipment. First Urology’s policy denied patients full and equal access to the services it provided because it required certain patients with mobility disabilities to bring their own equipment, friends, family, or attendants to help facilitate their transfer, in order to be treated. If the patient did not bring equipment, friends, family, or attendants to help transfer them, First Urology denied that patient treatment.

The U.S. Access Board Celebrates the 54th Anniversary of the Architectural Barriers Act (ABA) by Publishing a Technical Bulletin on Signs.

The Board issued the ADA Technical Guide to Signs and the ABA Technical Guide to Signs, both of which address signs for designations of rooms and spaces, international symbols of accessibility, and other spaces and elements.

The Council of State Governments, in collaboration with ODEP’s State Exchange on Employment & Disability, published a report designed to inform policymakers on “state as a model employer” policies and practices to recruit, hire and retain workers with disabilities. The report, “The State as a Model Employer of People with Disabilities,” explores strategies states can use to promote diversity, equity, inclusion and accessibility principles within the public-sector workforce.

The Partnership on Inclusive Apprenticeship (PIA) offers a toolkit that features tips for apprenticeship sponsors on equal opportunity policies, recruiting apprentices, providing reasonable accommodations, and encouraging self-identification of disabilities.

A Framework for Community Engagement – A Pathway to Competitive Integrated Employment

The U.S. Department of Education’s Office of Special Education and Rehabilitative Services is pleased to release “A Framework for Community Engagement – A Pathway to Competitive Integrated Employment”. Developed in partnership with ODEP and the U.S. Department of Health and Human Services’ Administration for Community Living and Substance Abuse and Mental Health Services Administration, this paper, targeted at both policymakers and service providers, explains what community engagement means along with its benefits. In addition, it contains information about the wide variety of services that, when provided together, expand opportunities for youth and adults with disabilities to achieve competitive integrated employment.

Two New PIA Resources: Clean Energy Infographic and OTJ Training Guide

The Partnership on Inclusive Apprenticeship (PIA) has published two new resources. The first, “Inclusive Clean Energy Apprenticeships: Meeting the Demand for Skilled Workers”, is an infographic that explains how apprenticeship programs can help the clean energy sector close the talent gap and advance diversity, equity, inclusion and accessibility goals. The second, “Best Practices for Accessible On-the-Job Training: An Employer’s Guide,” outlines recommendations to help businesses make their on-the-job (OJT) training more inclusive.

• Read “Inclusive Clean Energy Apprenticeships: Meeting the Demand for Skilled Workers"
• Read “Best Practices for Accessible On-the-Job Training: An Employer’s Guide”

SEED Advances Disability & Veteran Employment Among State Legislators

The State Exchange on Employment & Disability (SEED), along with Department of Labor Office of Disability Employment Policy (ODEP) leadership, participated in the National Conference of State Legislatures’ (NCSL) Legislative Summit to promote disability-inclusive state policymaking. ODEP Supervisory Policy Advisor, Michael Reardon, gave remarks during the NCSL Task Force on Military and Veterans Affairs panel discussion, which highlighted SEED and NCSL’s recent report on state employment policies for veterans with disabilities.

Read the"State Employment Policies for Veterans with Disabilities” Report

National Alliance on Mental Illness

NAMI is the National Alliance on Mental Illness, the nation’s largest grassroots mental health organization dedicated to building better lives for the millions of Americans affected by mental illness. NAMI provides advocacy, education, support and public awareness so that all individuals and families affected by mental illness can build better lives.

Help-seekers can text “HELPLINE” to 62640 between 10 a.m.–10 p.m. ET, Monday–Friday, to connect with the NAMI HelpLine or call 1-800-950-NAMI (6264) or by email at helpline@nami.org.

For more information, check out NAMI’s website.

Stay informed on the ADA, disability topics, and resources by following us on social media @ADAGreatLakes.

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When transitioning into higher education, students with disabilities have the responsibility to make known the need for accommodations/modifications in post-secondary settings.

Learn more by reading, “Students with Disabilities Preparing for Postsecondary Education: Know Your Rights and Responsibilities”, a publication from the U.S. Department of Education Office for Civil Rights.