Miami Employment Lawyer Blog

Under the new proposed regulations to the Amendments to the Americans with Disabilities Act (ADA), if an employer denies a job to an applicant because of uncorrected vision requirement, it may be a violation of the ADA. Many jobs, such as policemen, airline pilots, firemen and paramedics require a certain degree uncorrected vision to be considered for the job. For example, the many municipalities require that applicants for police officer or fire rescue jobs have uncorrected vision of at least 20/100. However, unless that requirement is job-related and consistent with business necessity, then it could be a violation of the ADA. In fact, the Amendments to the ADA, which became effective in January 2009, provide that most individuals who are screened out of a job because they cannot meet an uncorrected vision standard will meet the definition of having a disability.

The U.S. Congress passed the Amendments to the ADA in a specific response to two U.S. Supreme Court cases that narrowed the coverage of the ADA. One case in particular dealt with the issue of an uncorrected vision standard. In that case, Sutton v. United Airlines, 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), the Court held that a person is not "disabled" if corrective measures allow them to function as if they did not have a disability. In Sutton, two individuals who had 20/20 vision with glasses, but 20/400 vision without glasses were denied employment as commercial airline pilots because the airline required 20/100 or better uncorrected vision. The Court held that the two individuals were not actually disabled because they had 20/20 vision using corrective measures. However, Congress found that this ruling was too restrictive and that many people with disabilities were not being covered by the ADA. The Amendments specifically overruled the Sutton decision and required the U.S. Equal Employment Opportunity Commission (EEOC) to issue regulations implementing the ADA Amendments. The EEOC issued proposed regulations on September 23, 2009.

The proposed regulations provide that mitigating measures cannot be considered when determining whether or not a person has a disability as defined under the ADA. Indeed, in the preamble to the regulations, the EEOC specifically states that most persons who are screened out of a job because they cannot meet an uncorrected vision standard will meet the definition of having a "disability" under the law. Therefore, unless the uncorrected vision standard is job-related and consistent with business necessity, the requirement will be unlawful.

Continue reading "Uncorrected Vision Requirements May Constitute a Violation of the Americans with Disabilities Act under the New Proposed Regulations" »

The United States Court of Appeals for the Eleventh Circuit, which covers Florida, Georgia and Alabama, announced this month that a disabled worker must be able to identify and specifically articulate the reasonable accommodation that he or she is seeking. Under Title I of the Americans with Disabilities Act (ADA), an employer must provide a reasonable accommodation to the disability of a qualified employee as long as it does not create an "undue hardship" on the employer. For example, an employer may be required to provide equipment or devices, restructure the job, reassign a disabled employee, provide interpreters or readers, and may be required to modify work schedules, among other things.

It has generally been the position of the U.S. Equal Employment Opportunity Commission (EEOC) that where the reasonable accommodation is not readily apparent, then the employer must make a reasonable effort to identify one. See http://www.eeoc.gov/facts/ada17.html. In fact, the regulations implementing the ADA specifically provide that in order to determine an appropriate reasonable accommodation, the employer should engage in an informal, interactive process with the disabled employee. See 29 C.F.R.§1630.2(o)(3).

However, the Eleventh Circuit Court of Appeal's recent decision in Webb v. Donley, No. 09-10050 (11th Cir., 2009), appears to turn that principle on its head. In that case, which was decided two weeks ago (September 14, 2009), the Court specifically stated that "if the employee does not identify a reasonable accommodation, the employer does not have to enter into an interactive dialogue or show undue hardship." There, the plaintiff, who suffered from Fibromyalgia and Myofascial Pain Syndrome, alleged that her employer discriminated against her by failing to allow her to work on a modified schedule. What is odd is that the evidence showed that her employer had previously allowed her to work a modified schedule in the past. The Court, however, held that just because the employer allowed the employee to work a modified schedule in the past, it does not mean that the accommodation requested is reasonable. It seems that the basis of the Court's decision was that the employee did not offer any other type of reasonable accommodation.

While it is unclear whether the Webb decision will withstand legal scrutiny, the lesson to be learned is that a disabled employee must be proactive and suggest numerous reasonable accommodations to his or her employer. Insisting on a single type of accommodation, even if such an accommodation was provided in the past, may be held to be unreasonable. Therefore, a disabled employee should provide and suggest to his or her employer several alternative reasonable accommodations that will allow him or or to perform the job.

Continue reading "A Disabled Employee Must Identify the Reasonable Accommodation Being Requested and Ought to Provide Alternative Suggestions" »

Section 599.221(8) of the Florida Statutes provides that food and hotel workers that have a communicable disease cannot be employed by a licensed food and hotel establishment. That requirement, however, may be a violation of federal law. Specifically, the Americans with Disabilities Act (ADA) states that employers are required to provide a "reasonable accommodation" to the known disability of an employee, except in the case that it creates and an "undue hardship" on the business. This means that the employer must change aspects of the job so that the individual with a disability can perform the job. However, the employer is not required to provide a reasonable accommodation if it causes significant difficulty or costs the employer a lot of money, taking into account the size and financial resources of the employer. In addition, Under Title II of the ADA (the public accommodation provisions), a license in any occupation cannot be denied simply because the candidate for the license has been diagnosed with HIV or AIDS.

With respect to occupations in food service and hotel establishments, a recent Guidance Memorandum issued by the U.S. Department of Justice (DOJ), which is the government agency charged with enforcement of the public accommodation provisions of the ADA, gives us an indication as to such restrictions will be viewed. In its Guidance Memorandum, the DOJ clarified that the ADA protects individuals with HIV and AIDS in professions such as barbering, massage therapy and home health care assistance. More specifically, the Guidance Memorandum states that public and private licensing agencies are prohibited from denying a license to an individual because of he or she has been diagnosed with HIV or AIDS. According to the DOJ, individuals with HIV and AIDS still face obstacles in obtaining state licensure in these occupations because of what it termed "overly broad state licensure requirements." The DOJ reasoned that "excluding individuals with HIV under these licensure requirements is unnecessary and discriminates against these individuals in violation of the ADA" because HIV is not communicated through casual contact. As a result, the DOJ stated that agencies that required a doctor's certification that an individual is free from "communicable diseases" must exclude diseases not transmitted through casual contact, such as HIV.

Based on this rationale, Florida laws that requires food service and hotel workers to be free from communicable diseases are overly broad and may be a violation of federal law. Specifically, Florida law (Section 599.221(8)) provides that "[a] person, while suffering from any contagious or communicable disease, while a carrier of such disease, or while afflicted with boils or infected wounds or sores, may not be employed by any establishment licensed under this chapter [food and hotel services], in any capacity whereby there is a likelihood such disease could be transmitted to other individuals." As indicated by the DOJ Guidance Memorandum, that law must exclude diseases not communicated through casual contact, such as HIV. To make matters worse, the Florida Division of Hotels and Restaurants also provides that Public Food Service Catering Establishment employees "must be free of open sores and skin infections, respiratory infections, upset stomach, diarrhea or other communicable diseases." That requirement may also be a violation of federal law.

Under the ADA, individuals can be denied employment or access to opportunities only if they pose a "direct threat" to the health or safety of themselves or others that could not be eliminated through a reasonable accommodation. But irrational fears and stereotypes cannot result in a determination that there is a direct threat to public safety. As the DOJ states, "[p]eople with HIV or AIDS should not be denied access to their chosen profession because of outdated laws or unfounded stereotypes and fears."

Continue reading "Florida's Requirement that Food Service and Hotel Workers Must be free of HIV/AIDS may be a Violation of the Americans with Disabilities Act" »

We filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) recently against a hospital in the Miami area for failure to accommodate a known disability of one of its medical interns. In that case, the medical intern was deaf and required the assistance of a sign language interpreter in order to communicate. The hospital refused the accommodation and flatly stated that they did not have a policy that would provide sign language interpreters for employees. However, after we filed the charge they agreed to settle for an amount sufficient to compensate the employee.

A similar lawsuit was filed this week by the EEOC against national retailer Target Stores, Inc. for unlawfully denying a reasonable accommodation to an employee with multiple disability-based impairments and substantially. The complaint also alleged that they reduced his hours because of his medical conditions. Specifically, the worker could not effectively communicate without the assistance of a job coach because of his cerebral palsy and limited intellectual functioning.

According to the complaint, Target would fail to notify the employee's job coach and parents of in-person meetings involving work issues and job performance. The disabled employee had repeatedly requested that his job coach and parents be notified about these types of meetings so that they could assist him. According to the complaint, Target had hired the employee knowing that the employee had a disability and knowing that he needed a reasonable accommodation. As such, the complaint alleged, Target discriminated against the employee for failure to provide this notification.

The complaint alleged that the company's conduct violated Title I of the Americans With Disabilities Act of 1990 (ADA) and Title I of the Civil Rights Act of 1991. The EEOC's Regional Attorney stated that "Target's failure to provide a reasonable accommodation denied him equal benefits and privileges of employment. Despite his disabilities, the employee in this case was qualified and motivated to work, but Target denied him an equal opportunity to succeed in the workplace."

Under the ADA, an employer must provide a "reasonable accommodation" to an employee with a known disability, but not if it will create an "undue hardship" on the employer's business. This means that the employer must change the requirements of the job so that the employee with a disability can perform the job. However, if such changes cause significant difficulty or expenses to the employer, taking into account the employer's size, financial situation and its operations, then that would be an undue hardship.

Also, an employer does not have to lower quality standards or decrease production standards in making a reasonable accommodation. Personal use items, such as glasses or hearing aids need not be provided by the employer.

Continue reading "Florida Employers Must Provide a Reasonable Accommodation to a Known Disability" »

Many clients that come into our offices in Miami, Florida complain about being overworked and suffering from chronic fatigue. Especially nowadays where employees are being asked to put in extra effort, employees are asking if there is some relief. Well, recently, the Fifth Circuit Court of Appeals held that chronic fatigue syndrome could qualify as a disability under the Americans with Disabilities Act (ADA), which would require employers to accommodate the disability. That means that an employer may be required to allow napping and to alternate tasks frequently.

Under the ADA, employers must accommodate a known disability of an employee as long as it will not create an "undue hardship" on the employer's business. Providing a reasonable accommodation means changing aspects of the job so that the employee with a disability can perform the job. Undue hardship means something that causes significant difficulty or expense to the employer, considering the size, financial resources, and the nature of the employer's operations.

In the Fifth Circuit case, EEOC v. Chevron Phillips Chemical Co., LP, No. 07-20661 (5th. Cir. 6/5/2009), the U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Chevron Phillips Chemical Co. alleging that the company fired an administrative aid because she requested the accommodation that had been suggested by her doctor. Her doctor had suggested that she be permitted to nap and that she be given alternating tasks. The issue arose about two years after the employee began working with Chevron. She began experiencing sleep disruptions, fevers, headaches, trouble walking and problems with memory and concentrating. She was allowed to take a two week leave and when she returned to work, she provided a note from her doctor stating that she had chronic fatigue syndrome and that she needed to be at a location closer to her home. She was not permitted to relocate, but then her doctor stated that she needed to be allowed napping during lunch and had to be provided alternating tasks. She implemented these accommodations on her own after informing her employer. Five days later, the company suspended her without pay and eventually fired her, alleging that she failed to disclose the impairment on the medical questionnaire that she was required to fill-out upon being hired.

The EEOC filed suit in federal court, but the court threw out the case stating that "no reasonable jury could find that [the employee] had a disability within the meaning of the ADA." The EEOC appealed the decision and the Circuit Court found that chronic fatigue syndrome could be a disability. The court further held that a jury ought to have the opportunity to decide whether the employer failed to accommodate the disability and fired her on the basis of her disability.

This case is typical of the results that many expect to come out of the new amendments to the ADA, which took effect in January 2009. These amendments may make it easier for claims to be brought under the ADA. Employee claims are expected to now be evaluated on the basis of whether discrimination actually occurred, and not whether an employee can actually provide a disability.

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