Newsletter: April 15, 2020

Northeast ADA Center News Bulletin: April 15, 2020

Updates from the Northeast ADA Center:

The Northeast ADA Center team hopes that this newsletter finds you well. The new coronavirus (COVID-19) is hitting the disability community especially hard. Not only are people concerned for their health and the health of their families, but also they are wondering how to manage isolation when support is so often a critical part of managing their daily lives. As an information and resource provider on the Americans with Disabilities Act, we want to assure you that our technical assistance and training team is here to answer your questions about the ADA or related disability rights laws during this time. We are working in our home offices, so you can continue to reach out to the team at 800-949-4232 or email us at northeastada@cornell.edu. Also, to learn more about how Title I of the ADA is being interpreted in light of the pandemic, you can access our recent webinar entitled The ADA at Work: Considerations for COVID-19. The ADA National Network is actively developing a wide range of trainings and information around the ADA in light of the pandemic. Please keep an eye on our Facebook and Twitter accounts for the latest.

All our best to you while we face the challenges of COVID-19 as a community.

Sincerely,

Wendy Strobel Gower and the Northeast ADA Center team

What's New in Our Region:

NJ Supreme Court: Employees Can Challenge Termination Decisions Based on Off-Duty Medical Marijuana Use

The New Jersey Supreme Court ruled on a case where a man sued his employer under the NJ Law against Discrimination after he used medical marijuana, outside of work, to treat his cancer. In the case, the man was prescribed medical marijuana to treat his pain. While on duty, the man was involved in a car crash, after which, his employer required him to take a drug test for which he subsequently tested positive. After the lower court threw out the case, the appellate court deemed that the man had a disability that qualified his use of medical marijuana and provided him protections under the reasonable accommodation process. To read more about this go to: https://www.jdsupra.com/legalnews/nj-supreme-court-employees-can-39681/

N.J. Schools' Biggest Challenge? Providing Special Education from Home

With schools closing across the country due to the outbreak of coronavirus, NJ students with disabilities are stuck at home without the access to aides and specialists who typically interact with them. During home instruction days, schools must provide special education and related services identified in each student's Individualized Education Program "to the greatest extent possible," according to the state Department of Education. However, those services might not be possible given social distancing recommendations and state restrictions on tele-therapy, school leaders say. To read more about this go to: https://www.nj.com/education/2020/03/nj-schools-biggest-challenge-providing-special-education-from-home.html

KTF Enterprises and Kirker Enterprises to Settle EEOC Disability Lawsuit for $175,000

The EEOC's lawsuit charged KTF and Kirker with violating federal law when they refused to accommodate three factory workers with disabilities employed at the factory that KTF Enterprises operated at the time in Newburgh, N.Y., even though the requested accommodations would not have created an undue burden on the company. To read the EEOC press release go to: https://www.eeoc.gov/eeoc/newsroom/release/3-16-20a.cfm

New Yorkers with Developmental Disabilities Stuck in Hospital After COVID-19 Recovery

As patients with coronavirus recover in the hospital, those with developmental disabilities are finding that they cannot be released due the inability of staff, who provide care at their group homes, to safely care for them due to personal protective equipment shortages. Many of the patients can be released but may still be contagious. To read more about this go to: https://www.nbcnewyork.com/news/local/developmentally-disabled-new-yorkers-stuck-in-hospital-after-covid-19-recovery-ny-oem/2336523/

COVID-19 Resources for People with Disabilities in New York City

The Mayor's Office for People with Disabilities has gathered information specifically to inform people with disabilities on the resources available to the population during NYC's response to the COVID-19 outbreak.

For the most up to date information on prevention and treatment practices of COVID-19 in multiple languages, please visit http://www.nyc.gov/Coronavirus, text "COVID" to 392-392 or call 311.

If you have any specific questions or concerns please contact the Mayor's Office for People with Disabilities directly:

  • Voice Phone: 212-788-2830
  • Video Phone: 646-396-5830

What's New in the Rest of the Country

Convenience of the Employee Is Not Grounds for Accommodation Request

In looking at a case where an employee wanted to work from home due to a shoulder injury, the Sixth Circuit upheld that employers have the right to establish a link between the barriers to performing the job and the requested accommodation. The ADA interactive process requires employers to review the specific job held by the employee in question and determine its essential functions. Employers must then review the employee's limitations and "how those limitations can be overcome" to permit the employee to perform those essential functions. Finally, in determining whether a requested accommodation is "reasonable" under the ADA, an employer must look at "the effectiveness" the requested "accommodation would have in enabling the individual to perform the job" and only then "the preference of the employee." To read more about this go to: https://www.jdsupra.com/legalnews/convenience-of-the-employee-is-not-85440/

Disability Discrimination Complaint Filed Over COVID-19 Treatment Rationing Plan in Washington State

Self Advocates in Leadership (SAIL), Disability Rights Washington (DRW), and The Arc of the United States (The Arc) filed a complaint with the U.S. Department of Health and Human Services Office for Civil Rights (OCR) about their grave concerns that the plans being put in place discriminate against people with disabilities in violation of federal disability rights laws, including the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act (Section 504) and Section 1557 of the Affordable Care Act (ACA) and place their lives at serious risk. As governments federally and locally grapple with plans to address the crisis, advocates worry that people with disabilities will be adversely effected. To read more about this go to: https://stateofreform.com/news/washington/2020/03/disability-discrimination-complaint-filed-over-covid-19-treatment-rationing-plan-in-washington-state/

Disability Discrimination Complaints Now Top Race Discrimination

For the first time ever, Equal Employment Opportunity Commission claims of disability discrimination topped race discrimination claims in 2019. There are employers who may not be aware of their responsibility to comply with federal and state laws regarding people with disabilities. Some employers may be focusing their training efforts on other issues, like sexual harassment, especially in light of the #MeToo movement, and the increase in state laws, which mandate such training. To read more about this go to: https://wtop.com/business-finance/2020/03/disability-discrimination-complaints-now-top-race-discrimination/

Opportunities for You!

Free Webinar-Accessible Parking, What Does that Mean?

Tuesday, April 21st, 2020
2:00 PM EDT - 3:30 PM EDT

Accessible parking continues to be an area of confusion for people with disabilities and businesses. How many spaces must be accessible? Where should the accessible spaces be located? Who qualifies to park in accessible spaces? Who enforces parking laws? Join this session as we explore the complex issues of location, type, size, number and how all of this is enforced. The session will include the requirements for accessible parking in the 2010 ADA standards for accessible design. Participants will have an opportunity to ask questions of our speaker. To register go to: https://www.accessibilityonline.org/ADA-Audio/session/?id=110765

Free Webinar-ADA National Network Learning Session: COVID-19, Health Care, and the ADA

Thursday, April 23rd, 2020
11:30 AM PDT - 1:00 PM PDT

Given the unprecedented demands posed by the COVID-19 pandemic for the provision of health care, it is critical for health care providers to understand how the decisions they need to make for dealing with this crisis connect with the ADA. In this webinar, several ADA National Network staff from across the country will review general health care provisions in the ADA and how they apply to new issues such as temporary medical facilities, drive-thru testing sites, and other current health care issues.

Learning objectives:

  • Learn an overview of the ADA and health care.
  • Apply the physical access issues to new health practices like temporary facilities and medical drive throughs.
  • Understand effective communication issues to public information notices and warnings, masked care by professionals in all situations including medical drive throughs, and qualified interpreters
  • Learn about modifications to service animals, personal assistants, and bringing own assistive technology to a site.

To register go to: http://adapresentations.org/healthcare/registration.php

Special Spotlight:

EEOC Issues New Guidance for Employers On Compliance With The Americans With Disabilities Act And The Rehabilitation Act During The COVID-19 Pandemic

The guidance states that, while employers must continue to comply with the ADA and the Rehabilitation Act, those laws do not interfere with or prevent employers from following the guidelines and suggestions from the Centers for Diseases Control and Prevention (CDC) or state or local authorities. The EEOC guidance also directs employers to its 2009 publication "Pandemic Preparedness in the Workplace and the Americans With Disabilities Act," a guidance document written during the H1N1 outbreak more than a decade ago. The Act includes a section answering frequently asked questions by employers, the principles of which the EEOC guidance has applied to the COVID-19 pandemic. To read more about this go to: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm