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Posts Tagged ‘ADA’

Handling Telework Requests in a Post-COVID Environment

Posted on: April 13th, 2021

By: David Chang

As COVID-19 numbers retreat and vaccine distributions increase, many businesses that shifted to a Working From Home (“WFH”) environment are preparing to transition back to the office.  This will likely bring increased requests for “reasonable accommodations” under the Americans with Disabilities Act (“ADA”), particularly for permission to continue working remotely.

While every case is fact-specific, the EEOC has issued broad guidelines to help employers and employees determine when continued WFH could be appropriate. Two prominent issues are:

  1. Employees without a disability asking for an accommodation to protect a family member with a disability from COVID-19 exposure.
  2. Employees asking for teleworking as their reasonable accommodation because of an employer’s 2020 and 2021 WFH policy. (The employer can opt for alternative reasonable accommodation options that eschew WFH.)

With respect to the first issue, the employee here is not entitled to accommodation under the ADA, as protections based on association with an individual with a disability are currently limited to disparate treatment or harassment.

In regards to that second issue, the EEOC guidelines specifically provide,

“The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship.”

The Commission does note, however, that teleworking does require a closer look as a reasonable accommodation if an employee was able to satisfactorily perform all essential functions while working remotely.

As these issues are typically fact-specific, employers must be sure to promptly and properly address accommodation requests with flexibility and cooperation. To strike such a balance, obtaining the review of counsel is always recommended in an environment that continues to grow more virtual than ever.

For more information, please contact David Chang at [email protected].

Websites Not Considered Places of Public Accommodation under the ADA

Posted on: April 9th, 2021

By: Joyce Mocek

The Eleventh Circuit recently held that websites of businesses open to the public are not necessarily considered places of public accommodation under Title III of the Americans With Disabilities Act (ADA). The ADA prohibits discrimination on the basis of disability in places of public accommodations, such as hotels, grocery stores, and restaurants. However, the ADA as drafted does not specifically include websites of such places of public accommodations. As a result, there has been uncertainty as to how, when and if the ADA applies to websites of businesses that are generally open to the public.    

The Eleventh Circuit decision vacates a 2017 Florida court decision that held that Winn-Dixie’s website violated the ADA because it was “heavily integrated with” and served as a “gateway” to the grocery store’s physical locations. Winn Dixie did not actually sell its products on its website, although it had a few services its customers could use through its website such as filling prescriptions. The underlying Florida court had ruled the website did not offer a visually impaired customer “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations,” and as a result it violated the ADA. In its decision, the Eleventh Circuit found that the absence of “auxiliary aids” on the Winn Dixie website did not act as “intangible barriers” to the customers, and “absent congressional action that broadens the definition of ‘places of public accommodation’ to include websites” ADA liability should not be extended. This ruling helps to clarify the applicability of Title III of the ADA to the websites of businesses that are generally open to the public.  

For more information about this topic, please contact Joyce Mocek at [email protected].

EEOC Issues Revised Guide for Employers on the Employment of Veterans with Disabilities

Posted on: December 9th, 2020

By: Andrew Kim

On November 27, 2020, the EEOC issued three revised publications discussing the employment of veterans with disabilities. One of those publications is a revised guide for employers on how the ADA applies to the recruiting, hiring, and accommodation of veterans with disabilities.[1]  One topic of note is the EEOC’s guidance to employers on applicants who are disabled veterans.

Employers generally may not ask for medical information from applicants before making a job offer. However, according to the Revised Guide, employers may ask applicants to voluntarily self-identify as individuals with disabilities or a disabled veteran if the employer is:

  • Undertaking affirmative action because of federal, state, or local law (which includes a veterans’ preference laws) that requires affirmative action for individuals with disabilities; or
  • Voluntarily using the information to benefit individuals with disabilities, which includes veterans with disabilities.

Employers also can ask organizations who assist disabled veterans find employment whether it has suitable applicants for a particular job. It is important for employers to know that, if a written questionnaire is used for the purpose of having applicants voluntarily self-identify as disabled veterans, the written questionnaire must “indicate clearly and conspicuously” or “clearly state:”

  1. The information requested is intended for use solely in connection with its affirmative action obligations or its voluntary affirmative action efforts; and
  2. The specific information is being requested on a voluntary basis, the information will be kept confidential in accordance with the ADA, refusal to provide this information will not subject the applicant to any adverse treatment, and the information will be used only in accordance with the ADA.

The information collected for affirmative action purposes must be kept separate from the application itself in order to maintain confidentiality.

The EEOC’s Guidance states that, while the ADA prohibits discrimination on the basis of disability, it does not prevent affirmative action on behalf of disabled individuals. Therefore, per the guide, an employer can hire disabled individuals, which includes disabled veterans, over a qualified individual without a disability.

If you have any questions or would like more information, please contact Andrew Kim at [email protected]


COVID-19: What Medical Inquiries Can Employers Make?

Posted on: March 16th, 2020

By: Jennifer Markowski

Last week, Brad Adler, addressed FAQ’s (and Answers) for Employers Dealing with the Coronavirus, COVID-19. Subsequent to that article, on March 11, 2020, the World Health Organization (“WHO”) declared COVID-19 a pandemic. Consequently, employers should follow the Equal Employment Opportunity Commission’s (“EEOC”) pandemic guidance “Pandemic Preparedness in the Workplace and the ADA,” which details what medical inquiries and testing are permissible in the workplace in light of the existing pandemic.

The Americans with Disabilities Act (“ADA”) prohibits employers from making disability-related inquiries and/or requiring employees to submit to medical examinations unless they are job-related and consistent with business necessity.  Now that COVID-19 has been declared a pandemic, according to the EEOC guidance, employers can do the following without running afoul of the ADA:

  • Send employees home who are exhibiting COVID-19 symptoms;
  • Ask employees who call-in sick whether they are experiencing fever or chills and a cough or sore throat (symptoms of COVID-19);
  • Measure employee temperatures, if COVID-19 is widespread in the community as defined by state or local health ordinances or the CDC;
  • Ask where employees have traveled;
  • Ask why employees have not reported to work (this is always permissible);
  • Implement measures to prevent infection, such as wearing masks or requiring teleworking.

As always, information obtained about an employee’s medical illness must be kept confidential and separate from the employee’s personnel file and can only be shared with individuals on a need to know basis.  Additionally, if an employee receives ADA accommodations in the workplace and is then required to telework, those same accommodations should be provided for in the telework space, unless doing so would create an undue hardship.

The Occupational Safety and Health Organization (“OSHA”) has also issued guidance for pandemic preparedness. Those guidelines are accessible here.

In addition, FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

Current Legal Issues Facing Supportive Housing Facilities

Posted on: December 2nd, 2019

By: Joseph Colette

FMG Partner H. Joseph Colette discussed “Current Legal Issues Facing Supportive Housing Facilities” at the Georgia Supportive Housing Association’s 9th Annual Supportive Housing Conference, held at the State Bar of Georgia from November 18th to 19th.

Supportive housing provides at-risk populations, including individuals with physical, mental, or developmental disabilities, veterans, and reentry individuals, with stable housing with needed support services, such as case management, housing, and reasonable accommodations, peer supports, education, training, and other services. Mr. Colette originally assisted the Georgia Supportive Housing Association (“GSHA”) in obtaining its non-profit 501(c)(3) status. The GSHA is a membership network of non-profit housing developers, service providers, statewide agencies and organizations, corporations, associations and individuals with a shared goal: strengthening housing resources in the State of Georgia. The vision of the GSHA is to have a Georgia where individuals with disabilities can choose the housing and supports they need to thrive, obtaining and ensuring their stability, autonomy, and dignity.

Mr. Colette’s presentation included a historical overview of the Fair Housing Act of 1968, Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, and the U.S. Supreme Court’s decision in Olmstead v. L.C. Mr. Colette also discussed the evolution of these civil rights laws and insight into the variations in federal and statewide implementation and enforcement activity on the 20th anniversary of the Olmstead decision.

The Fair Housing Act of 1968 (“FHA”), which applies to landlords, realtors, mortgage brokers, insurance agents, zoning codes, etc., prohibits the discrimination in the rental, sale, advertising, design, insuring, and financing of dwellings, and in other housing-related transactions, based on membership in protected classes. The protected classes originally included: race, color, financial status, religion, sex/gender, and national origin. The FHA was amended in 1988 (see the Fair Housing Amendments Act of 1988 (“FHAA”)) to include disability as a protected seventh protected class.

Reasonable accommodations and modifications were also newly-established legal requirements of the FHA. A landlord could not unreasonably refuse to provide a reasonable accommodation of a rule, policy, or procedure to address the needs of a person with a disability, and could not unreasonably deny permission to a tenant to make a modification of the premises to address the needs of a person with a disability. Section 504 of the Rehabilitation Act of 1973, which imposes greater obligations than the FHA,  prohibits discrimination on the basis of disability in any program or activity that receives federal funds. The language of both the later enacted FHAA and the Americans with Disabilities Act of 1990 (“ADA”) are rooted in the Rehabilitation Act of 1973. Section 504 also requires recipients to make reasonable accommodations, including structural changes, to enable access to housing for people with disabilities.

The ADA provides federal civil rights protections to individuals with physical and mental disabilities and guarantees them equal opportunity in public accommodations, employment, transportation, state and local government services, and telecommunications. The integration of individuals with disabilities into the mainstream of society is fundamental to the purposes of the ADA. Title II of the ADA prohibits discrimination by public entities in services, programs, and activities on the basis of disability, and applies to all types of state agencies, counties, municipalities and cities, and executive, legislative, and judicial branches of state and local government.

The passage of the ADA resulted in a myriad of discrimination lawsuits, many of which went before the U.S. Supreme Court. For resolution of these cases, the Court was required to interpret the broad anti-discrimination provisions of the ADA in a variety of specific contexts while at the same time balancing such questions as states’ rights and the definition of disability. One such case was Olmstead v. L.C., 527 U.S. 581 (1999).

In Olmstead, the Supreme Court determined that individuals with disabilities had the right to receive supports in the community rather than in institutions when three conditions were met:

1) The treating medical professionals determined that a community setting was appropriate;

2) The person with a disability did not object to living in the community; and

3) The provision of services in the community was a reasonable accommodation.

All states were required to take steps necessary to serve individuals with disabilities in the community when the aforementioned conditions were met.

Virtually all of the cases after Olmstead involved attempts to place people from individual institutions into the community. The major legal controversies raised by these cases involved interpretation of what is referred to as the “fundamental alteration” defense. A public entity’s obligation under Olmstead to provide services in the most integrated setting is not unlimited.  Therefore, a public entity may be excused in instances where it can prove that the requested modification would result in a “fundamental alteration” of the public entity’s service system.  A fundamental alteration requires the public entity to prove “that, in the allocation of available resources, immediate relief for plaintiffs would be inequitable, given the responsibility the State [or local government] has taken for the care and treatment of a large and diverse population of persons with…disabilities.” See Olmstead, 527 U.S. at 604.

If you have any questions or would like more information, please contact Joseph Colette at [email protected].