Good Faith Goes a Long Way: The Benefits of Fully Engaging in the Interactive Process Mandated by the Americans with Disabilities Act

On Monday, March 25, 2019, I had the privilege to co-present on reasonable accommodations and the interactive process under the Americans with Disabilities Act (the “ADA”) at the HR in Hospitality Conference in Las Vegas, Nevada. One of the issues Picture1covered during our presentation involved the fact that the ADA does not require that employers provide the specific accommodation requested by an employee as long as the employer offers a reasonable accommodation to the employee who made the request.  While employers can use their business judgment when deciding how best to reasonably accommodate an employee, a settlement recently announced by the EEOC underscores that many employers would be well-advised to develop internal procedures or guidelines to help ensure that those involved in the accommodation process understand what is expected of them and the company when responding to accommodation requests.   According to a lawsuit filed by EEOC in Minnesota, a Bath and Body Works store failed to reasonably accommodation a sales associate with type-1 diabetes suffering retinopathy who asked that a larger monitor screen be placed at the cash register.  Instead, a store manager purchased what the EEOC described as “a cheap, hand-held magnifying glass” to be used by the sales associate when working the register.

Under a consent decree settling the suit (EEOC v. Bath and Body Works), Bath and Body Works agreed to pay Continue reading

N.J. Court Opens Door for Employees to File Disability Discrimination Claims for Adverse Employment Actions Related to Medical Marijuana Use

Several states have taken steps toward legalizing marijuana in some form.  However, these laws differ in many respects and raise interesting questions for employers, especially as they relate to off-duty conduct.

While some states such as Arizona, Delaware, and Minnesota provide specific statutory protections for employees that have a valid prescription for medical marijuana, there has been an increase in litigation under state disability discrimination laws for failure to accommodate an employee’s use of marijuana to treat a disability. The lingering question remains whether an employer’s decision to take an adverse action against an employee for using medical marijuana outside the workplace is protected under the Americans with Disabilities Act (“ADA”) or a state’s disability Continue reading

Court Ruling Further Clarifies ADA Website Accessibility Obligations

Over the past several years, we have written extensively about employers’ obligations to make their websites accessible for individuals with visual, hearing and physical impairments.  In the past, we have counseled employers who are considered a “place of public accommodation” (such as a hotel, restaurant, place of recreation, doctor’s office, etc.) to at the very least do some due diligence to determine whether their websites are accessible for disabled users, so that those individuals can use and navigate those websites and/or purchase goods sold onWebsite Accessibility Picture the websites.  (For more information about the developing law on this issue, check out our prior posts here and here.)  Now, for the first time, a U.S. Court of Appeals has ruled on this issue and has confirmed that so long as there is a “nexus” between a company’s website and a physical location (which is typically the case), a company must make its website accessible or risk significant legal exposure for violating the Americans with Disabilities Act (“ADA”).

(As a reminder, although not the subject of this blog post, we have also written about a second consideration here regarding website accessibility that applies only to hotels and other places of lodging and currently is the subject of a tremendous amount of litigation.  Specifically, the implementing regulations of Title III of the ADA require a hotel’s website to provide information regarding various accessibility features at its property, so that a mobility impaired individual can determine whether he or she can navigate the public areas and guestrooms at the property.).

Continue reading

Have Faith: 4.9 Million Dollar Settlement Underscores Importance of Accommodating Religious Beliefs During Hiring Process

What happens when the religious beliefs of an applicant conflict with your grooming and appearance policy?  What if the applicant is seeking a public-facing position in which they will be the first (and only) representative of your organization with whom most members of the public interact?  shutterstock_EEOCWhile some employers may believe that “image is everything” when it comes to the appearance of their public-facing employees, a 4.9 million-dollar settlement of a religious discrimination lawsuit announced recently by the U.S. Equal Employment Opportunity Commission (“EEOC”) serves as a stark reminder to employers that even your most straightforward policies may need to be modified in certain situations.  As detailed in our June 7, 2018 blog post, the EEOC has been aggressively making good on the promise made in the agency’s Strategic Enforcement Plan for Fiscal Years 2017 – 2021 to focus on “class-based recruitment and hiring practices” that discriminate against people with disabilities by filing a series of lawsuits accusing employers of violating the Americans with Disabilities Act by inquiring about prior medical histories, subjecting applicants to physical capacity tests and refusing to hire individuals who disclosed certain conditions.  The agency’s Strategic Enforcement Plan similarly committed to rooting out religious barriers to employment.  This is important because while many employers readily understand the need to reasonably accommodate disabled applicants and employees, it seems that some employers fail to grasp that they may also have to accommodate religious beliefs and practices of applicants and employees.

What the Law Requires

Title VII requires that employers, once informed that a religious accommodation is needed, accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship.  If an employer’s dress and grooming policy conflicts with an employee’s known religious beliefs or practices, the EEOC expects Continue reading

[Webinar] OSHA & the ADA: How two Labor Laws Can Align & Diverge

On Tuesday, December 4, 2018, at 1 pm EDT, join Jordan B. Schwartz and Lindsay A. Disalvo of Conn Maciel Carey’s national Labor & Employment Practice Group for a complimentary webinar:  “OSHA & the ADA: How two Labor Laws can Align & Diverge.”Cover slide

OSHA guidance states that “if an employee can perform their job functions in a manner which does not pose a safety hazard to themselves or others, the fact they have a disability is irrelevant.”  Although OSHA portrays this policy as straightforward, in practice, it can be difficult to determine when and how to accommodate a disability under the Americans with Disabilities Act (“ADA”), while also protecting the safety of the disabled employee and his or her co-workers.  This assessment can be further complicated when the employer is unaware a disability may cause or contribute to a workplace safety issue.  The importance of understanding the laws at play in this context has increased, and will continue to increase significantly, due to the aging workforce, and the unique challenges these types of workers may face.

The ADA also requires that medical information related to a disability be kept confidential, yet OSHA mandates certain information be provided when recording injuries and illnesses for OSHA Recordkeeping.  A disability may also impact whether and how an injury is recorded.  Therefore, it is critical for employers to understand the intersection between the ADA and OSHA.

During this webinar, participants will learn:

  • Requirements related to ADA disability accommodation, and how to evaluate an accommodation in the context of legitimate safety concerns
  • How to address unsafe conditions or performance related to an employee disability
  • Best practices to foster safety in the context of an aging workforce
  • Injury and illness recordkeeping practices related to employee disabilities

Click here to register for this webinar.

 

 

[Webinar] A Business Primer on Disability Access Laws: Preventive Tools and Defense Strategies

On Thursday, October 25, 2018, at 1 pm EDT, join Kara M. Maciel and Andrew J. Sommer of Conn Maciel Carey’s national Labor & Employment Practice Group for a complimentary webinar:  “A Business Primer on Disability Access Laws:  Preventive Tools and Defense Strategies

Businesses continue to be plagued by litigation under the Americans with Disabilities, Title III (ADA) over alleged access barriers.  Lawsuits against hotels and retailers, among other public accommodations, appear to be on the rise with a disproportionate share in California.

Disability Webinar

This webinar will provide an overview of ADA, Title III standards as they apply to construction existing before the enactment of the ADA in 1992 as well as to subsequent new construction and alterations.  The webinar will also address Continue reading

Free In-Person OSHA and Labor & Employment Client Briefing in Chicago – September 25, 2018

Join Conn Maciel Carey for an In-Person OSHA and Labor & Employment Briefing in Chicago on Tuesday, Sept. 25, 2018, and stay for a reception to celebrate the launch of our Chicago Office.

This complimentary program will feature panel discussions with representatives from EEOC, NLRB, and OSHA addressing key policy trends and regulatory developments.  They will be joined by senior corporate counsel from multinational corporations and Conn Maciel Carey’s own Labor & Employment and OSHA specialist attorneys.  There will also be moderated breakout roundtable sessions covering issues of concern to various industry segments.


Agenda

1:00 PM – Registration and Networking

1:30 PM – OSHA Panel

  • Angie Loftus (OSHA Area Director – Chicago North Area Office)
  • Nick Walters (Former OSHA Regional Administrator – Region 5) Continue reading