Supreme Court Will Not Decide If Driving Is ADA Major Life Activity The U.S. Supreme Court declined to examine whether driving is a major life activity under the Americans With Disabilities Act. By refusing to hear the case, the high Court leaves standing 10th U.S. Circuit Court of Appeals decision that driving is not a major life activity, a conclusion also reached by the 2d, 3d, 4th, 7th and 11th Circuits in other cases. Ireane Kellogg worked as a safety technician whose job often involved driving company vehicles to worksites. After experiencing seizures at home, Kellogg’s doctor diagnosed her with epilepsy. She was cleared to continue to work, but her doctor provided a note to the employer stating that Kellogg could not drive. The employer told Kellogg it considered her “a liability,” and sent her a letter saying that because her position was “safety-sensitive,” it could not continue to employ her without a full release from her doctor. Kellogg sued and at trial, the judge instructed the jury that driving was a major life activity under the ADA. The jury ruled in Kellogg’s favor, awarding her almost $150,000 in compensatory damages and back pay. On appeal, the employer argued that driving is not a major life activity under the ADA, and that the jury was erroneously instructed to consider it as one. The appeals court noted that driving was not listed as a major life activity in the Equal Employment Opportunity Commission’s regulations, and it was also previously determined not to be one by several other circuits. “It cannot be disputed that driving is an extremely important daily activity to many, even most, adults. Without the ability to drive, it may be very difficult to care for oneself or to work. … But driving is, literally, a means to an end,” the court found. To rule that driving is a major life activity because of its importance to the performance of other major life activities, such as caring for oneself or working, would short-circuit the analysis in determining whether one of those major life activities has been substantially limited, the court said. “For instance, to show a substantial limitation in the major life activity of working, the plaintiff must, under the EEOC regulations, establish a ‘significant[ ] restrict[ion] in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.’ Undoubtedly, an inability to drive will sometimes enable the plaintiff to meet this standard. Likewise, a restriction on driving could cause one to be substantially limited in the activity of caring for oneself. But a plaintiff should not be permitted to bypass having to prove substantial limitations in these major life activities by providing only evidence that she cannot drive,” the appeals court concluded. Kellogg petitioned the Supreme Court to hear her case, but her request was denied ( Kellogg v. Energy Safety Services Inc. , 544 F.3d 1121 (10th Cir. 2008), cert. denied , 2009 WL 357536 (2009)). Shortly after the Supreme Court’s denial, the 7th Circuit joined several other circuits in holding that driving is not a major life activity. The court found that a nurse who could not drive to patient’s homes, as her job required, was not substantially limited in a major life activity. The court noted, however, that if her inability to drive substantially limited her in the major life activity of working, she could have tried to argue that she was restricted from performing a broad range of jobs in various classes ( Winsley v. Cook County , 2009 WL 1066065 (7th Cir. 2009)). Five other circuits have reached the same conclusion in Colwell v. Suffolk County Police Department (158 F.3d 635 (2d Cir. 1998)) , Robinson v. Lockheed Martin Corp. (212 Fed. Appx. 121 (3d Cir. 2007)), Wyland v. Boddie-Noell Enterprises Inc. ( 165 F.3d 913 (4th Cir. 1998)), Champlin v. Wonewoc-Center School District (72 Fed. Appx. 445, (7th Cir. 2003)), and Collado v. United Parcel Service Co. , ( 419 F.3d 1143 (11th Cir. 2005)). Some circuits, however, have found that diving may fall into the broader major life activity of caring for one’s self or working, as the 10th Circuit mentioned in the Kellogg opinion. While these cases were examined under old ADA standards, driving remains absent from the revised list of major life activities in the ADA Amendments Act of 2008. At a National Employment Law Institute conference, David K. Fram, Esq., the institute’s director of ADA and EEO services, told attendees that because the Amendments Act does not discuss whether certain activities, such as driving, are major life activities, “it is likely that these activities will continue to be litigated.” Coordination of Laws Recent Amendments to ADA, FMLA Create New Overlap Issues for Employers Employers have several new overlap issues to be aware of, thanks to recent changes to the Americans With Disabilities Act and the Family and Medical Leave Act. Amendments to both laws — and new regulations for the FMLA — have created new challenges in administering the laws’ notice requirements, leave provisions and more. At a recent employment law conference hosted by the National Employment Law Institute, Megan P. Norris, Esq., a senior principal in the Detroit office of Miller, Canfield, Paddock and Stone, PLC, detailed how changes to the ADA and the FMLA will affect employers’ day-to-day practices. Notice requirements, job descriptions, overtime issues, reinstatement issues, medical documentation, return to work certification, and intermittent and unplanned leave, are all areas in which legislative and regulatory amendments have created new challenges for employers. Notice Requirements When an employee needs time off for a medical condition, both the ADA and the FMLA may be implicated. While the ADA does not contain specific notice requirements regarding an employee’s need for leave, it does note that it is almost always the employee’s responsibility to make the need known to the employer. In some situations, however, it may be up to the employer to initiate the leave. The ADA requires that the employer begin the interactive process if the employer knows the employee has a disability, knows that the employee is experiencing workplace problems because of the disability or knows that the disability prevents the employee from requesting a reasonable accommodation. Employers may be required to offer FMLA leave if the employee is unable to communicate his or her need for leave due to a medical condition or displays observable abnormal behavior that in effect places the employer on constructive notice of a need for leave. Neither statute requires the employee to use any specific language in requesting leave. Furthermore, the ADA permits someone else to make the request for the employee. While the new FMLA regulations permit employers to require that requests come though the company’s established protocol, the ADA does not. The FMLA requires employees to give 30 days notice of the need for leave, if possible. The ADA requires no advance warning. “In light of the changes made to the ADA by the ADA Amendments Act, employers are expected to spend less time battling over whether an employee is disabled under the law and more time determining whether an employee can be reasonably accommodated,” wrote Norris in a paper accompanying her presentation. “As a consequence, it is imperative that employers have drafted clear and effective internal procedures to assist managers in handling reasonable accommodation requests.” Front-line managers need to be able to recognize a request for accommodation (leave or otherwise) and know to which person or department to direct the request. “There is now a heightened importance of documenting what efforts were made by the employer to find a reasonable accommodation for the employee,” said Norris. “In some instances, the failure to timely respond to a reasonable accommodation request will be viewed as an employer’s failure to engage in an interactive process.” Job Descriptions Because more emphasis will now be placed on the ADA’s interactive process, it is even more important that employers maintain written job descriptions for all their job classifications. “These documents will play a crucial role in helping to determine whether a reasonable accommodation is available,” according to Norris’ paper. Job descriptions should be accurate, up-to-date and enforced, she said. Knowing exactly which job functions are essential and which are marginal will make the interactive process much easier. Job descriptions are also now more important in light of the FMLA’s revised regulations. An employer may now submit a job description to an employee’s doctor to assist in the determination of whether he or she can perform the job. “ In providing this information, the employer is able to receive more specific and useful medical information about the employee’s work restrictions,” Norris wrote. “Consequently, all employers will benefit by having up-to-date and detailed job descriptions for all positions. A new medical certification form has been released by the [Department of Labor] that allows for this new avenue of inquiry … when employees [are] seeking leave for their own serious health condition.” Furthermore, to require fitness-for-duty certification on an employee’s return to work, the employer must provide the employee with a list of his or her job’s essential functions at the time it grants the leave. Overtime Issues Generally, employers are not required to grant an exception from mandatory overtime as a reasonable accommodation under the ADA. However, under the FMLA, “if an employee is required to work overtime and is unable to do so due to a serious health condition, an employee can be charged FMLA leave for the mandatory overtime hours not worked. This rule does not apply when the overtime is voluntary,” said Norris. If an employee’s work schedule varies, but always includes overtime hours, an employer is permitted to calculate a normal workweek by looking at the average hours scheduled by the employee over the 12 months immediately prior to the beginning of the requested leave period, according to Norris. Previously, this was calculated by looking at the last 12 weeks immediately prior to the beginning of the requested leave period. Reinstatement Issues An employee who receives leave as a reasonable accommodation under the ADA is entitled to his or her same position on returning from that leave, unless keeping the position vacant would place an undue hardship on the employer. If the employer demonstrates this hardship, it should consider the employee for other vacant positions within the company. The FMLA requires that the employee receive the same or equivalent position on returning from leave. If the employee is no longer able to perform the essential function of his or her job, the ADA requires the employer to look for an accommodation that would allow him or her to perform the job. If no other accommodation is available, the employer may have to consider reassigning the employee. (For a full discussion on an employer’s duty to reassign employees, see ¶357 of the Guide .) The FMLA, however, does not require any such accommodation. If the employee does not qualify for ADA protection and cannot perform the essential function of his or her job on returning from FMLA leave, he or she may be terminated. Furthermore, if an employee’s job would have been eliminated through a normal reduction in force, or if the employee is a “key employee,” he or she may not be entitled to reinstatement. Medical Documentation The ADA permits employers to require documentation of a disability that is not obvious before providing an accommodation. Employers may also require employees to undergo medical examinations that are job related and consistent with business necessity, to ensure that they can safely perform the essential functions of the job. (For details on health-related questions and medical exams, see ¶230 of the Guide .) Employers may obtain medical certification before granting FMLA leave, and new regulations have made it easier to do so. Notably, under the revised regulations, an employer is now permitted to contact an employee’s health care provider for authentication and clarification purposes — but only after the employer has been given an opportunity to cure any deficiencies. “The regulations specify who may contact an employee’s health care provider on behalf of the employer: a health care provider, HR professional, leave administrator or management official. An employee’s direct supervisor is expressly prohibited from contacting an employee’s health care provider,” wrote Norris. Return to Work Certification The ADA permits employers to require fitness-for-duty certification on an employee’s return to work, if there is a need to determine whether an employee is still able to perform the essential functions of the job, when it is necessary for the reasonable accommodation process or when it is required by law. An employer can require an employee receiving leave as an ADA accommodation to undergo an independent medical exam as part of the fitness-for-duty certification if an employer has a reasonable belief that the employee may not be able to perform the essential functions of the job or that the employee poses a direct threat to the health and safety of himself, herself or others. Fitness-for-duty examinations are permitted under the FMLA if the employer requires them for all employees, or if one is necessary to ensure the employee is able to perform the essential functions of the job — provided the employee was informed of this requirement in the employer’s designation notice form and a list of those essential functions was included with the designation notice. Generally, fitness for duty certifications cannot be required for a return from intermittent or reduced-schedule leave. However an employer may require a fitness for duty certification to return from intermittent leave once every 30 days if the employer is concerned that the employee may not be able to safely perform his or her job. Intermittent and Unplanned Leave While intermittent leave may be a reasonable accommodation under the ADA, an employee who cannot perform his or her job regularly and predictably may not be a qualified employee. The FMLA, however, clearly provides intermittent leave. It only requires that employees make a reasonable effort to schedule medical treatments so they do not disrupt the employer’s business. The employer may also temporarily transfer an employee needing foreseeable intermittent leave to another position with the same pay and benefits if it would help minimize disruption to the business. Choosing Course of Action Following Norris’ presentation, David K. Fram, NELI’s director of ADA and EEO services, offered further guidance. Remember that employees “get the best of either world along each step of the way,” he said. In evaluating requests for leave, granting leave and reinstating employees, the employee is always entitled to the more favorable protections, if he or she is eligible for both FMLA and ADA protection. For example, when an employee is out on leave, the FMLA may offer greater protections, but on return from leave, the ADA often provides more employee rights, Fram said. “At each step along the way…you have to be looking at which statute gives greater rights,” Fram added. Court Corner Indefinite Leave for Store Manager’s Cancer Treatment Is Not Reasonable ADA Accommodation Indefinite leave is not a reasonable accommodation under the Americans With Disabilities Act, the 8th U.S. Circuit Court of Appeals reaffirmed recently. Floyce Peyton began work as a manager at a retail store. After a few weeks of training and two days on the job, she was diagnosed with ovarian cancer and hospitalized. Three days later, she underwent surgery. Her supervisor called the hospital to ask if she needed anything, and Peyton asked for time off. When asked when she expected to return to work, Peyton responded that she did not know. She was terminated shortly thereafter. Peyton sued, claiming that the store failed to accommodate her disability. While the company agreed that Peyton was most likely “disabled” under the ADA’s definition, it argued that the only thing that would allow Peyton to hold her position was indefinite leave — something that is never a reasonable accommodation under the ADA. Because there was no accommodation that would allow her to perform the job, she was not a “qualified individual” under the ADA — an individual with a disability who, with or without a reasonable accommodation, can perform the essential functions of the job. The court agreed, noting that “it is axiomatic that a person who cannot perform any of the functions of the job, with or without reasonable accommodation, cannot, as a matter of law, be considered ‘otherwise qualified’ under the ADA.” Peyton’s “illness caused her to be unable to perform the essential functions of her job as … store manager” and “there was no reasonable accommodation that would have allowed her to do so.” Furthermore, the court found that the employer met its burden of conducting the interactive process. While it is generally the employee’s responsibility to request workplace accommodations, Peyton argued that the supervisor should have engaged her in further discussion at a later date because she was heavily medicated during the one phone call. She likened her situation to cases in which an employee had a mental illness or did not know how to request an accommodation and employers were held liable for failing to initiate the interactive process. The court, however, disagreed. “Courts recognize that employers should not be burdened with guess-work regarding an employee’s return to work after an illness,” said the court, noting that even if Peyton’s case had been one of the rare situations when it is the employer’s burden to begin accommodation discussions, the supervisor had met that burden by asking if she needed anything. While this case turned on whether Peyton was a qualified individual, it is important to note that even employees who otherwise meet that standard are still generally not entitled to indefinite leave under the ADA (see the Equal Employment Opportunity Commission’s “Applying Performance and Conduct Standards to Employees With Disabilities,” ¶134). Employers should also note that had Peyton worked for her employer for a longer period of time, the Family and Medical Leave Act may have been implicated ( Peyton v. Fred’s Stores of Arkansas, Inc. , 2009 WL 996823 (8th Cir.)). Best Practices Job Applicant Sues Potential Employer Over Impermissible Disability-Related Questions Employers Should Ensure Job Advertisements, Applications and Interviews Are ADA Compliant A job applicant sued a trucking company that asked impermissible, health-related questions on its employment application. While the applicant was not ultimately entitled to monetary damages, the employer was still found to be in violation of the state’s antidiscrimination law. Lawrence Baer filled out a job application with J.D. Donovan Inc., and answered questions “stating that he did not have any handicap that prevented him from working, he was physically capable of heavy, manual work, he would be willing to take a physical examination and he was in good health. But he did not answer questions about whether he was ever injured on the job or how much time he lost from work in the past three years for illness,” according to the Minnesota Court of Appeals. Baer was not hired. He filed suit, alleging that the company had violated the Minnesota Human Rights Act “by intentionally requiring [him] to provide information regarding his physical health[,] prior injuries and disabilities.” A trial court found that the application violated state law and required the employer to pay a $500 civil penalty. Baer, however, could not show that he suffered discrimination and, therefore, could not recover any damages. Baer “did not show a genuine interest in the employment because he omitted responses to legitimate questions, and [the employer] was justified in concluding that [Baer] was not qualified for openings.” “[N]either party qualifies as a prevailing party and neither is entitled to recovery of costs or attorneys’ fees,” the trial court found. Baer appealed, but the appeals court agreed with the lower court, finding that he was not an “aggrieved party” entitled to damages under the Minnesota law ( Baer v. J.D. Donovan Inc. 2009 WL 911818 (Minn. App., 2009). Review Job Applications While Baer was not entitled to collect monetary damages, the employer likely spent a large amount of money defending this claim. To avoid such claims and civil penalties, employers should review employment applications to avoid liability under the Americans With Disabilities Act and applicable state laws. Questions that would result in information about disabilities nearly always violate the ADA. Application forms should not include questions about the applicant’s health, medical treatment, prior drug use, workers’ compensation claims or the number of sick days used in previous jobs. For a list of questions the Equal Employment Opportunity Commission has designated as prohibited, see Fig. 223 in the Guide . While post-offer medical examinations are generally permitted, the EEOC cautions against statements such as “Failure to pass the post-offer physical will cause withdrawal of the job offer.” Employers need to remember that a job offer may be withdrawn at the post-offer stage only if the rejection is job related and consistent with business necessity and the individual is unable to perform the job’s essential functions with or without a reasonable accommodation (see ¶222). Furthermore, application forms themselves should be accessible to applicants with disabilities and provided in alternate formats if requested. Employers that have federal affirmative action reporting requirements are advised to request relevant information about whether the job applicant considers him- or herself to have a disability on a separate form that is not given to those making hiring decisions. Job applicants should be informed that the requested information is strictly voluntary and will have no bearing on hiring. Employers should also ensure job advertisements and interview questions comply with the ADA. For information on writing compliant job advertisements and descriptions, see ¶221 of the Guide . For interviewing guidelines, see ¶223.
New EEOC ‘Caregiver-Friendly’ Policies Guidance May Help Employers Avoid ADA Association Claims New guidance on avoiding discrimination against workers with caregiving responsibilities was released by the Equal Employment Opportunity Commission. The document, “Employer Best Practices for Workers with Caregiving Responsibilities,” may aid employers in avoiding claims of association discrimination under the Americans With Disabilities Act. The document was released at a public meeting to discuss “the importance of policies that protect caregivers in an economic downturn” and examines how federal anti-discrimination laws apply to workers with caregiving responsibilities. The EEOC said it is designed to complement its 2007 document, “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities” (see App. IV of the Guide ). “Today we take another step forward, articulating not just the bare minimum required to avoid unlawful discrimination, but also thinking broadly about the ways in which family-friendly workplace policies can improve workers’ ability to balance caregiving responsibilities with work,” said Stuart J. Ishimaru, the commission’s acting chairman. The document makes recommendations “for workplace policies aimed at removing barriers to equal employment opportunity for workers with caregiving responsibilities,” the commission said in a press release. “Examples include personal or sick leave policies that allow employees to use leave to care for ill family members, flexible work arrangements, part-time opportunities with proportional compensation and benefits, and equal-opportunity policies that address unlawful discrimination against caregivers.” ADA Requirements The ADA does not require employers to make reasonable accommodations for employees associated with an individual with a disability. It does, however, prohibit discrimination based on that relationship (see the Guide , ¶215). For example, under the ADA, an employer is not required to provide time off for an employee to care for a child with a disability. It would be illegal, however, to deny that same employee a promotion because the employer fears the new workload may be too much for the employee to handle, because of his or her caregiving responsibilities. (Employers should ensure that individual situations do not require analysis under the Family and Medical Leave Act or state laws.) But, by going above and beyond what is required by federal law, the EEOC said that employers “may not only experience decreased complaints of unlawful discrimination, but may also benefit their workers, their customer base, and their bottom line.” “Numerous studies have found that flexible workplace policies enhance employee productivity, reduce absenteeism, reduce costs, and appear to positively affect profits. They also aid recruitment and retention efforts, allowing employers to retain a talented, knowledgeable workforce and save the money and time that would otherwise have been spent recruiting, interviewing, selecting and training new employees,” the EEOC said. “The benefits of these programs remain constant regardless of the economic climate, and some employers have implemented workplace flexibility programs as an alternative to workforce reductions.” The document makes recommendations involving policies and training; recruitment, hiring and promotion; and terms, conditions and privileges of employment. For a list of recommendations, see “EEOC’s Best Practices for Workers With Caregiving Responsibilities,” p. 7. In addition to issuing the new document, the commission heard from panelists who discussed the importance of caregiver-friendly workplace policies, particularly during an economic recession. Panelists included representatives from the Center for American Progress Action Fund, the Center for WorkLife Law, the National Partnership for Women and Families and the Equal Employment Advisory Council. Their statements are available online at http://www.eeoc.gov/abouteeoc/meetings/4-22-09/index.html.
Best Practices for Workers With Caregiving Responsibilities The Equal Employment Opportunity Commission released new guidance on avoiding discrimination against workers with caregiving responsibilities (see related story, “New EEOC ‘Caregiver-Friendly’ Policies Guidance May Help Employers Avoid ADA Association Claims,” p. 6). Below are excerpts from the document’s recommendations. While the Americans With Disabilities Act does not require employers to provide reasonable accommodations to employees associated with individuals with disabilities, the EEOC outlined possible benefits of doing so in its guidance. The entire report can be found online at http://www.eeoc.gov/policy/docs/caregiver-best-practices.html. General Recommendations Be aware of, and train managers about, the legal obligations that may impact decisions about treatment of workers with caregiving responsibilities. Develop, disseminate and enforce a strong EEO policy that clearly addresses the types of conduct that might constitute unlawful discrimination against caregivers based on characteristics protected by federal anti-discrimination laws. Ensure that managers at all levels are aware of, and comply with, the organization’s work-life policies. Respond to complaints of caregiver discrimination efficiently and effectively. Protect against retaliation. Recruitment, Hiring and Promotion Focus on the applicant’s qualifications for the job in question. Review employment policies and practices — particularly those related to hiring, promotion, pay, benefits, attendance and leave — to determine whether they disadvantage workers with caregiving responsibilities. Develop specific, job-related qualification standards for each position that reflect the duties, functions, and competencies of the position and minimize the potential for gender stereotyping and other unlawful discrimination against caregivers. Ensure that job openings, acting positions and promotions are communicated to all eligible employees regardless of caregiving responsibilities. Implement recruitment practices that target individuals with caregiving responsibilities who are looking to enter or return to the workplace. Identify and remove barriers to re-entry for individuals who have taken leaves of absence from the workforce due to caregiving responsibilities or other personal reasons. Ensure that employment decisions are well-documented and transparent (to the extent feasible). Terms, Conditions and Privileges of Employment Monitor compensation practices and performance appraisal systems for patterns of potential discrimination against caregivers. Review workplace policies that limit employee flexibility, such as fixed hours of work and mandatory overtime, to ensure that they are necessary to business operations. Encourage employees to request flexible work arrangements that allow them to balance work and personal responsibilities. If overtime is required, make it as family-friendly as possible. Reassign job duties that employees are unable to perform because of pregnancy or other caregiving responsibilities. Provide reasonable personal or sick leave to allow employees to engage in caregiving even if not required to do so by the Family and Medical Leave Act. Post employee schedules as early as possible for positions that have changing work schedules so that employees can arrange in advance for child care or address other personal responsibilities, thereby enabling them to more readily fulfill work responsibilities. Promote an inclusive workplace culture. Develop the potential of employees, supervisors and executives without regard to caregiving or other personal responsibilities. Provide support, resources and referral services that offer caregiver-related information to employees .
Proposal To Make Hybrid Cars Audible a Commendable, But Lacking, First Step By Gary C. Norman, Esq. Gary C. Norman, Esq., is a principal in his newly established firm, Norman Access and Conflict Resolution Consultants Group. He may be contacted at gnormanlaw.com. Americans love their cars. As a blind person and active attorney, I cannot deny this passion for the automobile, especially for classic muscle cars, even though ambulating on foot to benefit from goods and services not only increases overall health but also detracts from the “carbon footprint.” Cities in the U.S. however, are not designed, or have a historical shortfall of visionary design, to be pedestrian oriented. In the U.S., makes of vehicles, which are conceived as causing a net positive impact to the environment, range from an emerging sub-population of vehicles — bio-fueled automobiles — to the so-called hybrid. For citizens who cannot ambulate to the grocer and must transport a far distance on the one hand, but who also desire to reduce carbon emissions that emanate from fossil-fueled automobiles on the other, vehicles that are environmentally friendly may serve both purposes. There is, however, a concern posed by some people with sight disabilities and advocacy organizations that hybrids, or so-called quiet cars, are a hazard because they emit little to no noise. Why Hybrids Need Sound Substantial media coverage has been garnered by the National Federation of the Blind in recent years on the issue of why quiet cars should be sonorous. According to Barbara Pierce in her article, “Quiet Cars and Blind Pedestrians: Problems and Progress,” the solution to the hazards posed by quiet cars would be the adaptation of mounted speakers on front fenders emitting the sound of an engine idling, accelerating, traveling at traffic speed or braking (actually reflecting what the hybrid is doing). Pierce’s article appears on the NFB’s Web site. If the NFB proves successful in its legislative advocacy efforts, fuel-efficient vehicles such as hybrids, which leave less of a “carbon footprint,” will emit a minimal level of noise. The impact of quiet cars on people with visual impairments is already the subject of one report of a state taskforce in Maryland and is the subject of federal legislation currently pending in Congress. A consumer-focused article on the issue of quiet cars will appear in the next issue of Dialogue Magazine. Providing a synopsis of relevant legislative proposals with corresponding commentary on the issue of adapting quiet cars to be “blind-friendly” seems fitting in light of the Pedestrian Safety Enhancement Act of 2009, which is pending a hearing before the House Energy and Commerce Committee as well as in an applicable Senate committee. Pending Legislation The bill, sponsored by Rep. Ed Towns, D-N.Y., and Sens. John Kerry, D-Mass., and Arlen Specter, D-Pa., indicates that “New vehicles that employ hybrid or electric engine technology can be silent, rendering them extremely dangerous in situations where vehicles and pedestrians come into proximity with each other.” Section Four of the legislation would require the secretary of the Department of Transportation to conduct a study within 90 days of inactment on: “the practical means of assuring that blind and other pedestrians receive substantially similar information to information [able-bodied pedestrians] receive from sound emitted by vehicles that use internal combustion engines”; “the minimum level of sound emitted from a motor vehicle that is necessary to provide blind pedestrians with the information needed to make safe travel judgments”; and whether the minimal sound standard provides sufficient information to the blind to assure safe crossings, and the estimated cost and feasibility of any related equipment adaptations. In light of the financial security of the American automotive industry, a disturbing unfunded mandate is found in Section Five of the legislation, which requires the promulgation of a motor vehicle safety standard by the secretary of the DOT. The standard would require every motor vehicle to be equipped with a method that furnishes the blind with information, (including direction and speed), in a degree similar to what used to be garnered from standard combustion-engine-driven automobiles. The legislation authorizes appropriations to the secretary for the study. Incentives for the implementation of this safety standard are, however, not furnished. From its face, the intent of the legislation to protect the blind or vision impaired advocated by the NFB may be laudable. To this end, the organization should be commended for its ability to persuade governmental officials to undertake action on its policy agenda. That stated, however, one must wonder about the goal of the NFB in relation to the issue of adaptations to quiet cars. Is it notoriety or perhaps some future revenue stream from sound-generating adaptations to the automobile? No. But, perhaps the NFB does not comprehend that the hazards imposed by quiet cars, if any, are part of a larger need for pedestrian education, including the incorporation of mandatory pass or fail questions on people with disabilities into drivers’ license tests. Additionally, land use and transportation are intertwined. The way engineers design cities and the way governments have policies that subsidize their sprawl impact the extent to which citizens have to rely on the gas-guzzling fossil-fueled family automobile. The leadership of the NFB typically contends that blind or vision impaired people should “live in the word as it is[.]” This is why, for instance, the NFB has opposed adaptations to signalized intersections, through what are called Accessible Pedestrian Signals, which furnish equal or near equal information as a sighted person receives when crossing a busy street. Logic is strained as to why the NFB opposes, on the one hand, the solution of the Accessible Pedestrian Signal, while arguing, on the other, for adaptations to motor vehicles.
DOL Discusses Technology Barriers to Employment of People With Disabilities A report that examines the relationship between accessible technology and the employment of individuals with disabilities was released by the Department of Labor’s Office of Disability Employment Policy. The report is the second in a series called “Roadmaps” and discusses barriers in technology that adversely affect people with disabilities in hiring, retention and advancement and offers ways for employers to remove those barriers. It also makes recommendations to the federal government for improving federal policy regarding assistive technology and employment. The full report is available online at http://www.dol.gov/odep/documents/RoadmapsII.pdf .
Illinois School District Must Ensure Access for Disabled Parents An Illinois school district must pay millions to upgrade its facilities in accordance with a settlement agreement it reached with the Department of Education. A father who used a wheelchair could not attend his daughter’s musical performances, teacher conferences, award ceremonies, swim meets and other events, according to Equip for Equality, a not-for-profit advocacy organization participating in the suit. After five years of asking District 211 to make improvements, the father filed suit, the advocacy group said in a press release.The district spent about $53 million completing most of the renovations before the agreement was reached, and now must complete a few final upgrades. The changes included making classrooms, restrooms, entrances and parking physically accessible; installing new elevators; installing tactile signage and visual alarms; providing communication in alternative formats; ensuring the district’s Web site is accessible; and developing an emergency evacuation plan for individuals with disabilities. Maryland Burdensome Zoning Process for Substance Abuse Treatment Facilities May Violate ADA The U.S. Department of Justice filed suit against the city of Baltimore, alleging that its zoning code violates the Americans With Disabilities Act. According to the department, the code discriminates against individuals with disabilities by subjecting substance abuse treatment facilities to a “burdensome ‘conditional ordinance’” zoning process. Other comparable facilities are not required to go through the same process, which requires approval by the city council and the local neighborhood association, said DOJ in a press release. “Because of unfounded stereotypes about persons with disabilities who are in drug treatment, this process has resulted in facilities not getting a permit or in expending tremendous resources to get the permit.” The suit was filed in a Baltimore district court. Oregon State Law Will Be Amended To Mirror Amendments Act The state of Oregon is moving quickly to amend its state disability law in light of the ADA Amendments Act. A bill that brings that law in line with the federal Americans With Disabilities Act passed in the state Senate May 4. The bill, S.B. 874, amends the law’s provisions in relation to individuals regarded as having a disability, impairments that are episodic or in remission and mitigating measures. When the Senate approved the measure, it included a few amendments. For example, the state’s list of major life activities may soon include socializing, sitting, reaching, interacting with others, employment, ambulation and transportation. The bill will now move to the state’s House of Representatives for consideration. Pennsylvania DOJ Settlement Will Ensure Better Access to Polling Places Citizens with disabilities will now have better access to polling places in Philadelphia, according to the U.S. Department of Justice. The city recently reached a settlement agreement with the department and agreed to provide individuals with mobility disabilities equal access to polling places, instead of limiting them to absentee ballots. The city will also hire an expert to evaluate the changes and ensure that Americans With Disabilities Act standards will play a major role in the selection of future polling places. The settlement resolves not only the DOJ’s suit, but also a class action filed by Philadelphia voters.
NELI To Host Employment Discrimination Law Update The National Employment Law Institute will host three Employment Discrimination Law Updates in July. According to NELI, the two-day conferences will discuss the most significant developments in equal employment opportunity and their impact on employment practices. The first day will feature discussions on compensation, retaliation claims and reductions-in-force. The second day will focus on the Americans With Disabilities Act, the Family and Medical Leave Act and mediation. Program participants will receive NELI’s “2009 Employment Discrimination Law Manual.” The conferences will be held in the cities listed below. Registration information is available online San Francisco, Calif. — July 16-17 Chicago, Ill. — July 23-24 Washington, D.C. — July 30-31
Swine Flu Prompts EEOC To Issue Guidance on In response to the recent spread of the H1N1 flu virus, more commonly referred to as “swine flu,” the Equal Employment Opportunity Commission issued a technical assistance document for employers wishing to prepare for a possible pandemic while remaining in compliance with the Americans With Disabilities Act. The document, “ADA-Compliant Employer Preparedness for the H1N1 Flu Virus,” addresses issues such as disability-related inquiries, medical examinations, protective equipment and telework. The document recommends that employers establish lines of communication with local public health authorities in advance of a pandemic. If faced with a pandemic, employers may take the following steps, according to the EEOC. An employer may encourage or require employees to telework as an infection-control strategy, but must not single out employees either to telework or to continue reporting to the workplace because of a disability. An employer may require employees to wear personal protective equipment to reduce the transmission of a pandemic virus. However, if an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these absent undue hardship. Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and tissue usage and disposal, does not implicate the ADA. An employer may require entering employees to have a medical test post-offer to determine their exposure to the influenza virus, in limited circumstances. The ADA permits an employer to require entering employees to undergo a medical examination after making a conditional offer of employment but before the individual starts work, if all entering employees in the same job category must undergo such an examination. Example: An employer in the international shipping industry implements its pandemic influenza preparedness plan when the WHO and the CDC confirm that a new influenza virus, to which people are not immune, is infecting large numbers of people in multiple countries. Because the employer gives these medical tests post-offer to all entering employees in the same job categories, the examinations are ADA-compliant. An employer may survey its workforce to gather personal information needed for pandemic preparation if the employer asks broad questions that are not limited to disability-related inquiries. An inquiry would not be disability-related if it identified non-medical reasons or absence during a pandemic (e.g., mandatory school closures or curtailed public transportation) on an equal footing with medical reasons (e.g., chronic illnesses that weaken immunity). The guidance document contains a sample ADA-compliant survey that could be given to all employees before a pandemic. The entire document is available online at http://www.eeoc.gov/facts/h1n1_flu.html .
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