Newsletter: October 16, 2019

Northeast ADA Center News Bulletin: October 16, 2019

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Updates from the Northeast ADA Center:

Free Webinar - Accessibility in the Laboratory

Wednesday, November 20, 2019 from 12:00 PM to 01:00 PM Eastern

Access to STEM education and careers can be challenging for people with disabilities. Given the importance of creating a pipeline of qualified candidates with disabilities for careers in science and technology, the Northeast ADA Center would like to share critical information about access in laboratory environments. This introduction will provide an overview of the legal requirements to provide access in laboratory environments in post-secondary education. Scenarios will be presented to explore physical access in the lab, how to safely include service animals, and how to make accommodations for student scientists who are blind or have low vision or are deaf or hard of hearing. This webinar will be based on information in the Accessibility in the Laboratory Book published (2018) by the American Chemical Society. To register go to: http://register.yangtaninstitute.org/register/index.cfm?event=7418

What's New in Our Region:

Generalizations, Speculation and Stereotypes about Individuals with Disabilities Do Not Justify Refusal to Accommodate Use of Service Animals under the ADA

On August 30, 2019, the U.S. Court of Appeals for the Third Circuit, covering New Jersey, Pennsylvania, Delaware, and the U.S. Virgin Islands, issued a precedential opinion in an important case interpreting the Americans With Disabilities Act's (ADA) public accommodations provision and its interaction with persons who rely on psychiatric service animals. In summary, the court: (1) deepened a circuit split by joining the Tenth Circuit in holding that the ADA applies to plasma donor centers; and (2) held that the plasma donor center at issue violated the ADA by imposing a blanket ban on prospective plasma donors who use psychiatric service animals. See Matheis v. CSL Plasma, Inc., (3d Cir. Aug. 30, 2019). The case was brought by plaintiff George Matheis, Jr. against CSL Plasma, Inc., which owns and operates a plasma donation facility in York, Pennsylvania. Matheis is a retired SWAT team officer who was involved in a deadly shooting incident in 2000 and subsequently diagnosed with post-traumatic stress disorder (PTSD). Matheis donated plasma at the CSL facility 90 times in 2016, earning between $250-300 per month for his donations. After obtaining a service dog, CSL essentially told Matheis that he could not donate until a doctor certified that he could safely donate plasma without his service dog. Notably, CSL's concern was not related to health concerns for service animals. Instead, CSL concluded that using a service dog for anxiety means that the donor's condition is too severe to safely undergo the donation process. The Third Circuit joined the Tenth Circuit in holding that the ADA applies to plasma donor centers, rejecting a contrary holding from the Fifth Circuit. The ADA applies to public accommodations which include, in relevant part, "other service establishment[s]." 42 U.S.C. § 12181(7)(F). The Bottom Line: Blanket policies which ban service animals for reasons of public safety must be carefully scrutinized so as to not interfere with disabled persons' rights under the ADA. Before taking such measures, companies should consult with counsel to ensure that they are not making safety assessments based on generalizations or stereotypes, but rather are making rationally grounded safety assessments supported by evidence. To read the full article go to: https://www.fordharrison.com/generalizations-speculation-and-stereotypes-about-disabled-individuals-do-not-justify-refusal-to-accommodate-use-of-service-animals-under-the-ada

The Ocean County and Union County New Jersey Boards of Elections Enter into Memorandum of Agreements with the United States Department of Justice Regarding Accessibility Compliance Review of Polling Place Locations

In 2015, the United States Department of Justice, through the U.S. Attorney's Office for the District of New Jersey ("Department"), initiated a compliance review of the Ocean County Board under Title II of the Americans with Disabilities Act of 1990 ("Title II" of the "ADA"), as amended, 42 U.S.C. §§ 12131 - 12134, and Title II's implementing regulation, 28 C.F.R. pt. 35, to determine the physical accessibility of the Board's polling place locations to people with mobility and vision disabilities. During the November 3, 2015 election, the Department surveyed 29 polling place locations used in that election. The Department surveyed 20 additional polling place locations during the November 8, 2016 election, and 10 additional polling places during the June 5, 2018 election. In letters dated May 31, 2016, June 6, 2017, and August 8, 2018, the Department informed the Board that many of the surveyed polling place locations did not comply with ADA standards and, according to the Department, presented barriers to access for persons with disabilities. The Department also advised the Board of its conclusion that the Board had violated Title II by failing to use polling place locations on Election Day that are accessible to persons with disabilities. The Board has acknowledged its obligation to ensure no individual with disabilities is denied participation in or the benefits of voting at a polling place location, and that no person be subject to discrimination on the basis of disability. 42 U.S.C. § 12132; 28 C.F.R. §§ 35.130(a), 35.149. The Board has also recognized its statutory obligation to select polling place locations that do not exclude individuals with disabilities from or deny them the benefits of those polling place locations, or otherwise subject them to discrimination. 42 U.S.C. § 12132; 28 C.F.R. § 35.130(b)(4). The Board shall continue to administer its voting program in the most integrated setting appropriate to the needs of persons with disabilities. 28 C.F.R. § 35.130(d). To read more about this go to: https://www.ada.gov/ocean_county_moa.html To read a similar agreement with Union County New Jersey go to: https://www.ada.gov/union_county_moa.html

What's New in the Rest of the Country:

When Alcohol Is Involved, the ADA Distinguishes Between ‘Having a Disability' and ‘Disability-related Misconduct'

Being under the influence of alcohol at work does not equal a disability, ever. Alcoholism is an ADA-protected disability. Yet the ADA does not require that employers accommodate alcoholics by permitting them to drink, or otherwise be intoxicated, on the job. Case in point? Dennis v. Fitzsimmons (D. Col. 9/5/19). Jared Dennis was employed as a deputy in the Summit County, Colorado, Sheriff's Office. He's also an alcoholic. While on administrative suspension following his wife's allegation of domestic violence, Dennis got drunk at home the night before his criminal arraignment. The following morning, he failed his intake breathalyzer. Thereafter, the Sheriff's Office terminated him for, among other rules violations, conduct unbecoming of an officer and being impaired while on duty.
Dennis sued his former employer for disability discrimination, claiming that it fired him because of a protected disability - his alcoholism.
The court disagreed, and dismissed Dennis's lawsuit.

It is generally recognized that alcoholism can constitute a disability entitling the employee to protection under the ADA.... The more difficult question is whether Deputy Dennis has come forward with evidence that his termination resulted from his disability, rather than his conduct....[W]hen the disability at issue is alcoholism, the ADA ... draw[s] a distinction between "having a disability" and "disability-caused misconduct."

It is undisputed that the SCSO based its decision to terminate Deputy Dennis' on the fact that he reported for his arraignment in an intoxicated state. Thus, there is no dispute that SCSO's decision arose from his unsatisfactory conduct on the morning of July 28, not from his abstract status as an alcoholic. As noted, the ADA ... do[es] not extend protection to actions of alcohol-influenced misconduct, even if the employee's alcohol use is related to the disability of alcoholism. Accordingly, Deputy Dennis has not come forward with evidence that indicates that his termination was based on his status as a disabled person (as opposed to his conduct).

Addiction is a protected disability. But it does not mean you have to permit its use to accommodate the disability. Under the influence at work does not equal a disability. To view this article go to: https://www.workforce.com/2019/09/11/when-alcohol-is-involved-the-ada-distinguishes-between-having-a-disability-and-disability-related-misconduct/

Autism CARES Act Reauthorized

The Autism Collaboration, Accountability, Research, Education and Support, or Autism CARES, Act, was signed into law by President Trump on September 30. This reauthorization of the act provides expanded funding for research, tracking, and the development of best practices related to those on the autism spectrum across the lifespan. https://www.disabilityscoop.com/2019/10/02/trump-signs-autism-act/27246/

Dallas Electric Utility to Pay $50K to Settle Federal Disability Discrimination Suit

A Dallas-based electric utility company will pay $50,000 and furnish other relief to settle a disability discrimination lawsuit, federal officials said.

A consent decree in the U.S. Equal Employment Opportunity Commission's (EEOC) lawsuit against Oncor Electric Delivery Company LLC was approved by U.S. District Judge Sam R. Cummings on Sept. 9, 2019.
According to the EEOC's suit, Delores McCraney, a representative who worked for Oncor for 13 years, was fired from Oncor's Dallas headquarters when she refused to sign an agreement promising to abide by a company requirement to disclose, directly to her supervisor, all medications, whether prescription or over-the-counter, that could affect job performance, including dosages and changes of dosages.

The EEOC said that this broad requirement violated the prohibition against medical inquiries of employees under the Americans with Disabilities Act (ADA), which prohibits discrimination based on disability in the workplace.
Under EEOC guidance, inquiries about employees' medications are permitted only in limited circumstances, in positions affecting public safety, and only where the employer can demonstrate that an employee's impaired ability to perform job duties will result in a direct threat.

The EEOC filed suit in U.S. District Court for the Northern District of Texas, Dallas Division, Case No 3:18-cv-01786, after first attempting to reach a pre-litigation settlement. In this case, the EEOC sought back pay plus compensatory and punitive damages, as well as injunctive relief, including an order barring similar violations in the future.

The three-year consent decree settling the suit prohibits future discrimination and retaliation. In addition to the monetary relief, the company must disseminate its revised policy to all employees; provide annual training regarding the very limited new rule as to medication disclosures; provide avenues for reporting violations of the new policy; and warn of discipline for any manager who continues the prior discriminatory practices. To view this article go to: https://www.insurancejournal.com/news/southcentral/2019/09/11/539535.htm

Opportunities for You!

Mid-Atlantic ADA Update - the 26th Annual Conference on the Americans with Disabilities Act

The Mid-Atlantic ADA Update, the 26th annual conference on the Americans with Disabilities Act will be held this November in Philadelphia, Pennsylvania. The 2019 conference will provide a wide range of up-to-date information on ADA regulations and guidelines, as well as strategies and best practices for successful implementation of the law. Conference speakers will include subject-matter experts from federal, state, and local government agencies, businesses, non-profit organizations, and universities. The ADA Update will offer opportunities to network with other professionals with similar interests and concerns. Professional development hours from several accreditation organizations will also be available.

Areas of the ADA that will be covered at the 2019 conference:

  • Disability employment
  • State and local government requirements
  • Corrections and detention
  • Accessible technology
  • Post-secondary education

When
Wednesday, November 13, 2019 - Friday, November 15, 2019

Where
Philadelphia 201 Hotel
201 North 17th Street
Philadelphia, Pennsylvania 19103
215-448-2000

Fees and Deadlines
Registration is $549 per person. Save $50 if you register by September 17, 2019 - pay only $499.
Registrations received after September 17 will be charged at the full rate of $549.
Registration closes on October 30, 2019.

To register go to: https://www.cvent.com/events/mid-atlantic-ada-update/registration-a1923df4678245769e693a8cd90d53da.aspx?fqp=true

Registration Announcement for Justice Center Regional Conference

Thursday, October 24, 2019 10am to 3pm
Shirley A. Chisholm State Office Building
55 Hanson Place,
Brooklyn, NY 11217

The Justice Center for the Protection of People with Special Needs will be conducting a conference with multiple sessions throughout the day. Each session is targeted for different audiences including provider agency representatives under the jurisdiction of the Justice Center, individuals receiving services, families, peer advocates and other interested stakeholders.

To register go to: https://events.r20.constantcontact.com/register/eventReg?oeidk=a07egkoflc5f0fb0be8&oseq=&c=&ch=

Reminder: U.S. Access Board to Conduct Webinar on Bathing Facilities Oct. 24

In October, the U.S. Access Board will conduct a free webinar on accessible bathing facilities. This webinar is on October 24 from 2:30 - 4:00 (ET) that will explain and clarify requirements for bathing facilities in the ADA and ABA Accessibility Standards. This session will address common questions and sources of confusion concerning transfer showers, roll-in-showers, and bathtubs. Presenters will review components of accessible bathing fixtures, including grab bars, shower and tub seats, shower spray units and controls, and clearances. They will show how these requirements and other provisions in the standards apply and come together in the design of accessible bathing facilities.

For more information or to register visit http://www.accessibilityonline.org. Questions can be submitted in advance of the session (total limited to 25 each) or can be posed during the live webinar. Webinar attendees can earn continuing education credits. The webinar series is hosted by the ADA National Network in cooperation with the Board. Archived copies of previous Board webinars are available on the site: http://www.accessibilityonline.org/ao/archives/

Special Spotlight:

Get Ready for National Disability Employment Awareness Month

October is National Disability Employment Awareness Month (NDEAM). The 2019 theme is "The Right Talent, Right Now." Observed each October, NDEAM celebrates the contributions of workers with disabilities and educates about the value of a workforce inclusive of their skills and talents. Learn more: https://www.dol.gov/odep/topics/ndeam/