Trainings & Events Calendar
Thursday, February 10, 2022
Tuesday, February 15, 2022
Thursday, March 3, 2022
Tuesday, March 15, 2022
Tuesday, March 15, 2022
Tuesday, March 29, 2022
News from the Federal Agencies
U.S. Access Board
President Biden Appoints Members to U.S. Access Board
President Joe Biden has appointed eight new members to the U.S. Access Board. He also reappointed incumbent Board member, Gregory S. Fehribach who is currently the Board’s Chair.
U.S. Access Board Publishes Final Rule on Standards for Medical Diagnostic Equipment
The U.S. Access Board released a final rule related to its standards for accessible medical diagnostic equipment (MDE) covered by Section 510 of the Rehabilitation Act. The MDE Standards, originally published in 2017, established minimum technical criteria to ensure that medical diagnostic equipment, such as examination tables, weight scales, and imaging equipment, used by health care providers is accessible to and usable by individuals with disabilities.
U.S. Access Board Hosts Virtual Event on Equity in Healthcare for People with Disabilities
The U.S. Access Board hosted the virtual public event “Equity in Healthcare for People with Disabilities” . The event featured panel presentations on standards, research, and resources related to healthcare accessibility, including inclusive medical equipment, healthcare facility design, and information technology, and communication devices and systems. Members of the public were able to pose questions to the presenters during the event.
Christopher Kuczynski Named U.S. Access Board’s General Counsel
Christopher Kuczynski has been appointed General Counsel for the U.S. Access Board. In this role, Kuczynski will guide the Board’s legal affairs and lead enforcement efforts under the Architectural Barriers Act (ABA). The Board’s Office of General Counsel (OGC) provides legal expertise and counsel to the Board and staff regarding the work and operations of the agency, including matters related to Board jurisdiction or authorities and the legal sufficiency of agency regulatory initiatives.
U.S. Equal Employment Opportunity Commission (EEOC)
EEOC Sues Pneuline Supply for Disability Discrimination and Retaliation
Parts manufacturer Pneuline Supply, Inc., fired an employee who has a severe hearing impairment because of her disability and/or need for accommodation and in retaliation for requesting an accommodation and complaining about discrimination, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed.
EEOC Releases New Guide for Federal Employees Filing Employment Discrimination Appeals
The U.S. Equal Employment Opportunity Commission (EEOC) released today a “Guide to Writing Appeal Briefs for Unrepresented Complainants”, intended to assist federal employees and applicants with their employment discrimination complaint appeals to the EEOC. As a resource for federal employees or applicants without legal representation, the guide explains what content should be included in an appeal brief and how it should be organized. The guide helps make the appeal process more accessible by providing an explanation of how to support or oppose an appeal, sample briefs that can be downloaded and used as templates, and a glossary for technical and legal terms.
National Car Dealers to Pay $150,000 to Settle EEOC Disability Discrimination Lawsuit
Car dealers Victory Automotive Group, Inc. and Cappo Management XXIX, Inc. will pay $150,000 and hire a consultant to facilitate changes to their policies and training practices to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced. According to the EEOC’s suit, the joint employers terminated a title clerk working at their Sacramento dealership over fears that she might have cancer.
Vantage Oil & Gas Exploration Companies Settle EEOC Disability Claim
Two oil and gas exploration companies -- Vantage Energy Services, Inc. and Vantage International Management Company Pte. Ltd. -- will pay $54,500 and provide training to its managers and human resources staff to resolve a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced. According to the EEOC’s lawsuit, an employee suffered a heart attack while working aboard one of the defendants’ drill ships off the coast of West Africa. Just days before his scheduled return to work from leave, he was discharged.
Charter Senior Living to Pay $31,000 to Settle EEOC Disability Discrimination Lawsuit
Charter Senior Living, LLC, a family-owned business based in Naperville, Illinois that operates senior living communities primarily in the Midwest and South, will pay $31,750 and provide other relief to settle a federal disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced. The EEOC charged that Charter Senior Living violated federal law at its Sylvania, Ohio facility by discharging a caregiver whom it perceived as disabled.
U.S. Department of Health and Human Services (HHS)
The Department of Health & Human Services (HHS) has issued new guidance to health care providers on civil rights protections for people with disabilities. The guidance, issued by HHS’ Office for Civil Rights, makes clear that in light of the continuing public health emergency, when resources can be scarce, it is vital that individuals with disabilities are not prevented from receiving needed health care benefits and services as this violates federal civil rights laws.
U.S. Department of Housing and Urban Development (HUD)
Federal Court Enters Consent Decree in FHA Reasonable Accommodation Complaint
A federal court has entered a consent order in United States v. John J. Flatley d/b/a John J. Flatley Company, et al. (E.D. Tenn.). The complaint, filed on April 9, 2021, alleged that the defendants discriminated on the basis of disability when they refused to make a reasonable accommodation to allow the complainant to live with her emotional assistance Saint Bernard dog. The consent order requires the defendants to pay $35,000 in damages to the HUD complainants, adopt and implement a new reasonable accommodation policy for assistance animals, and obtain fair housing training. The case was referred to the Division after the Department of Housing and Urban Development (HUD) received a complaint, conducted an investigation, and issued a charge of discrimination.
U.S. Department of Justice (DOJ)
Justice Department Secures Agreement to Make Online COVID-19 Vaccine Registration Accessible
The Justice Department announced that it has secured a settlement agreement with Meijer, Inc., that will help people with disabilities get information about COVID-19 vaccinations and book their vaccination appointments online. The agreement, which requires Meijer to conform its COVID-19 vaccine content to the Web Content Accessibility Guidelines Version 2.1, will help ensure that individuals with disabilities who use screen readers and those who have difficulty using a mouse can privately and independently book their vaccination appointments online.
Justice Department Updates “Common Questions About COVID and the ADA”
The Justice Department has updated its “Common Questions About COVID and the ADA” to address two COVID-era issues affecting people with disabilities: first, ensuring that medical facilities’ visitor policies take into the account the rights of people with disabilities to receive equal access to care; and second, ensuring that outdoor retail or dining spaces (sometimes called “streateries”) are accessible to people with disabilities and do not prevent individuals from using sidewalks and accessible parking.
The Justice Department entered into a settlement agreement with AdventHealth-Gordon under Title III of the Americans with Disabilities Act to ensure effective communication for patients and companions who are deaf and hard of hearing. Under the three-year agreement, the hospital will revise its policies, practices and procedures for providing auxiliary aids and services to patients and companions who are deaf or hard of hearing, and offer monetary relief to a patient and companion who were not afforded effective communication during the labor and delivery of the patient’s child.
In Focus
Registration Now Open for the 2022 National ADA Symposium
The Great Lakes ADA Center in collaboration with the ADA National Network are excited to announce the 2022 National ADA Symposium. The 2022 National Symposium will be a virtual event taking place May 10-13, 2022.
This year’s National ADA Symposium will feature sessions that include up to date information regarding employment, communication, transportation, emergency preparedness, case law, regulatory updates for government and private entities and the latest on the 2010 ADA Standards for Accessible Design.
2022 National ADA Symposium Highlights:
- Option to register for the full conference or register for specific days.
- 51 sessions over five days, including a Pre-Conference
- Sessions presented by representatives from the U.S. Access Board, the U.S. Department of Justice, and the U.S. Equal Employment Opportunity Commission (EEOC).
- Sessions highlighting new information, projects, and best practices from ADA National Network Regional Centers.
- Two Keynote Speakers (To be announced)
- ACTCP, CEU, and AIA/HSW credits are available upon request during registration.
- Sessions pre-approved for the American Institute of Architects (AIA) Health, Safety, and Welfare (HSW) credits.
The Docket
COVID-19 May Qualify as a “Disability” Under the ADA, Says Federal Court
January 2, 2022
A federal court in Pennsylvania has ruled preliminarily that COVID-19 may be considered a disability under the ADA. In Matias v. Terrapin House, Inc., an employee reported a positive test result to her employer and was terminated the same day. The employee sued under the ADA, alleging that the decision to terminate her immediately following her positive test constituted discrimination on account of a perceived disability. The employer brought a motion to dismiss the claim, arguing that COVID-19 is not a covered disability under the ADA. The court ruled in favor of the employee.
In its ruling, the court cited to recent guidance from the Justice Department and the Department of Health and Human Services, indicating that certain forms of COVID-19 may be considered a disability under the ADA, particularly “Long COVID.” The court found it relevant that the employee showed symptoms that are commonly associated with Long COVID, namely the loss of taste and smell. Because the employer fired her shortly after she disclosed the positive test and these symptoms, the court concluded that the employee sufficiently alleged she was terminated on account of a perceived disability.
The employer had argued that COVID-19 is a transitory and minor impairment, and therefore not covered under the ADA. The court found these arguments unavailing. Indeed, the court outlined the drastic impact COVID-19 has had on America, citing overwhelming numbers of hospitalizations and deaths, especially in comparison to the seasonal flu and the H1N1 pandemic. Thus, because the employer failed to demonstrate that COVID-19 was both a transitory and minor impairment, the employee’s ADA claim was allowed to proceed.
(Although this is not a final decision in this case, this preliminary decision shows that an employee who suffers an adverse employment action following a positive COVID-19 test may have an actionable ADA claim. This is especially true when the employee reports symptoms that are associated with Long COVID.
© 2021 Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP
Question
Q. When is COVID-19 an actual disability under the ADA?
A. Applying the ADA rules 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.
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.
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.
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.
