ADA Compliance Guide
April 2005

Leave Cap Caught in Crosshairs

Clearer Communication Policy May Keep EEOC at Bay

Leave caps are receiving renewed scrutiny by the EEOC, which settled a claim with NABI Biopharmaceuticals for firing a worker when she exceeded its 15-week leave cap, according to Dale Price, EEOC trial attorney in Detroit.

The employer told the EEOC it had no problem with letting the worker take more time off for dialysis, but that was not communicated in writing to her, Price said. A clearer communication policy may have kept the EEOC from being called in to resolve the matter, he added in an interview.

NABI agreed to modify its leave policy to take into account the individualized circumstances of employees on medical leave, including the possibility of extended leave.

Price said that a no-fault termination policy for workers who exceed leave caps violates the ADA because additional time off can be a reasonable ­accommodation.

But employers may require employees to cooperate with them when scheduling intermittent leave and choose times that do not cause an undue hardship for the business. In this case, the employee needed dialysis three times a week and already was planning one of those days to be Saturday when she was not scheduled to work, so she had done all she reasonably could, Price said.

When returning to the job from time off, the employee asked for two and a half hours off late Tuesday and Thursday afternoons, but was willing to make up the hours.

Clarify HR’s Role

The worker’s leave requests had been cleared in the past with no problem. Once the supervisor denied a leave request, it was not clear to the worker who she needed to approach to try and get more time off as an accommodation, Price stated. If it had been clearer that she could have talked with HR, the matter may have been resolved within the corporate hierarchy, he speculated.

Christopher Hammon, an associate with the law firm of Morgan Lewis in Miami, said NABI fully accommodated the worker and “went above and beyond the requirements of the ADA.”  Its leave policy already complied with the ADA, he said. The more important lesson from the case is not how it was settled, “but that the EEOC decided to pursue it.”

Adele Rapport, a regional attorney with the EEOC, said in an interview that the EEOC has taken a strong position that leave caps, if applied too rigidly, violate the ADA even if the caps are for long periods such as six months or a year. Simply sending out a form letter at the end of the period to terminate someone does not comply with the law’s reasonable accommodation mandate if a leave extension would not result in any undue hardship, she explained.

But a leave cap does not have to be uniformly waived anytime it is requested as an accommodation if there are other accommodation options or if more leave would result in an undue hardship. Suppose during the height of tax season a tax accountant asks for a leave extension from Feb. 1 through May 1. More time off may be deemed an undue hardship, Rapport hypothesized.

By contrast, listing attendance as an essential function in a job description will not persuade the EEOC that time off is unreasonable or poses an undue hardship, she remarked. “Nobody hires someone to come into work to just sit in a chair every day,” she said, distinguishing regular attendance from the performance of a particular job duty.

Courts generally find that attendance is an essential job function of most jobs. However, several appeals courts do hold that leave for a definite period may be a reasonable accommodation (see ¶336).

Rapport said many of the EEOC’s leave cap cases resulted from poor communication when no real effort was made to find out what employees needed to return to work.

Document Invitations To Accommodate

When investigating complaints about leave caps, she said, the EEOC is looking for correspondence between the employer and the employee about what it offered to the worker, and documented invitations to the employee to talk with the employer about accommodation options. An employer that has documentation is much likelier to persuade the commission it is in compliance, she noted.

Price said NABI did not document any of the overtures it made to extend the worker’s leave. “There should have been a process to encourage discussion,” he remarked.
 

‘Vigilante’s’ Suit Proceeds

Even a self-appointed vigilante who is chastised by a court for unethical behavior can ultimately enforce the ADA’s access requirements against business owners, so small businesses need to be aware of what their responsibilities are. At the same time, they should not allow themselves to be bullied into an unreasonable settlement of bogus claims.

Jarek Molski, a wheelchair user, has filed 400 lawsuits seeking more than $1.4 million dollars in damages against California restaurants and other public accommodations under both the ADA and state law. After filing suit, Molski’s attorneys send a letter to the businesses, advising the owners to settle without hiring their own attorneys. The letter states that the vast majority of defense attorneys simply “embark on a billing expedition,” and it warns of “skyrocketing costs if the matter does not settle ­immediately.”

The letter adds that the business’s insurance company may help pay the settlement and the law firm offers to represent the business owner in lawsuits against its insurer.

A federal district court in one of the cases Molski filed sanctioned him and his attorneys for improper conduct. The letters “can only be described as astonishing,” the court said. It is questionable whether insurers would be responsible for settlement costs in these instances and it is improper for a lawyer to offer legal advice to an unrepresented person whose interests conflict with those of his or her client.

Molski’s ADA complaints were virtually all the same with only superficial alterations of facts and names. For example, he filed 16 lawsuits for ­injuries he said occurred over a four-day period. On one of those days he claimed similar injuries happened at five different businesses located 140 miles apart.

“This period was far from an isolated incident,” the court said. On 19 different occasions, he claimed to be injured three or more times in one day. “The rate of physical injury defies common sense.”

Businesses Quick To Settle

Small businesses typically settled Molski’s claims, the court noted, even though the lawsuits were abusive and part of a “shakedown scheme.” The court asked the California State Bar Association to investigate the law firm representing Molski and ordered the firm to get court permission before filing any new ADA complaints.

Yet, despite the sanctions and dismissal of the state law claims, the court let the ADA complaint go forward, stating it “cannot conclude that the ADA claim is clearly immaterial or wholly insubstantial” (Molski v. Mandarin Touch Restaurant, 2005 WL 535357 (C.D. Cal.)). 

Less than a week after the court issued its decision, it permitted another Molski ADA claim to proceed. In that case, Molski admitted filing 300 to 400 ADA actions and settling half of them. But he denied the complaints were shams.

He loves to travel along the California coast, Molski said. Sometimes he visits three restaurants and numerous wineries in a single day. He insisted that this extensive traveling explains his filing multiple identical complaints.

Although the court noted that his many complaints could impact his credibility later in the proceedings, it permitted his case, which included alleged violations of ADA signage, parking and restroom requirements, to proceed (Molski v. Arby’s Huntington Beach, 2005 WL 608739 (C.D. Cal.)).
 

Post-Offer Exams Were Premature

Post-offer medical examinations conducted prior to background checks violated the ADA and the California Fair Employment and Housing Act, the 9th U.S. Circuit Court of Appeals ruled.

Three flight attendant applicants challenged the withdrawal of job offers by American Airlines after post-offer exams revealed they had HIV. The applicants were asked to list medications taken at the time of the exams, but did not list HIV medications. They also met with nurses to discuss their medical histories, but did not mention their HIV status. The job offers were withdrawn for nondisclosure of this information at the post-offer stage, which permits medical examinations (see ¶342).

The federal and state laws require that medical exams be administered only after any nonmedical components of the screening process, including post-offer background checks, the court ruled. Otherwise, “the offers were not real.” The airline might have issued two rounds of conditional offers, the first for background checks and, once the checks were completed, the second for medical exams. The case was sent back to the trial court for a determination of whether administering the background checks first was feasible (Leonel v. American Airlines, 2005 WL 502874 (9th Cir.)).

Store Surveys Planned

A checklist for ascertaining ADA compliance will be drafted and used to survey all National Wholesale Liquidators stores as part of a settlement with the Disability Rights Council of Greater Washington. The checklist will ascertain compliance in 10 different areas: parking, exterior areas, cart corrals, doors, merchandise aisles, restrooms, customer service counters, check-out counters, electronic cash transaction devices and emergency exits.

To resolve the ADA claim (Aguehounde v. National Wholesale Liquidators, C.A. No. 04-CV-00999 (D.D.C.)), the company agreed to:

•  remove barriers at cart corrals;

•  provide 36-inch-wide paths to restrooms, dressing rooms, elevators, check outs and emergency exits, and along all primary aisles;

•  provide at least one 32-inch path to at least 50 percent of the merchandise on every fixture;

•  remove other access barriers to the extent removal is readily achievable;

•  implement policies regarding assistance to persons with disabilities;

•  train staff;

•  ensure new stores are fully accessible; and

•  appoint an ADA coordinator.

Wheelchair users cannot use cart corrals with locked gates, which pose a hazard in emergencies, the council noted. Companies are not required to appoint ADA coordinators, but state and local governments with at least 50 employees are (see ¶817).

Deaf Inmate Awarded Fees

The Marion County, Ind., sheriff owes more than $53,000 in attorney’s fees and costs for failing to provide a deaf inmate with assistive communicative devices and services during his incarceration, a district court decided. A teletypewriter, interpreter or other reasonable accommodation should have been made available to the inmate while he was in lock-up, the court decided. The sheriff subsequently agreed to pay the inmate $5,000 and reasonable attorney’s fees. “Perhaps the sting of this litigation indirectly prompted increased ADA awareness by the sheriff,” the court stated (Kennington v. Cottey, 2005 WL 555367 (S.D. Ind.)).

Congress needs to do more to help states meet their obligations to provide treatment to deinstitutionalize people with disabilities who could receive medical attention in their communities, according to Sen. Tom Harkin, D-Iowa. He introduced legislation to let Medicaid money follow a person with a disability from an institution into the community.

The Money Follows the Person Act of 2005 would provide 100 percent federal reimbursement for community services an individual needs during his or her first year out of an institution or nursing home. “Unfortunately, under current federal Medicaid policy, the deck is stacked in favor of living in an institution,” Harkin said.

But the ADA requires states to deinstitutionalize persons with disabilities who could be treated in their communities when institutionalization is unnecessary, according to the Supreme Court, which ruled that needless institutionalization is a form of discrimination prohibited by the law (Olmstead v. L.C., App. V:201). “We in Congress have a responsibility to help states meet their obligations under Olmstead,” Harkin remarked.   

Information technology may provide less burdensome ways for bus companies to submit ADA compliance data, according to the U.S. Department of Transportation, which announced in a Federal Register notice that it is open to suggestions for improvement.

Currently, the DOT requires recordkeeping and reporting from bus lines on:

•  48-hour advance notice and compensation;

•  equivalent service and compensation;

•  ridership on accessible fixed-route buses; and

•  the purchase and lease of accessible and inaccessible new and used buses (see ¶463).

The department is considering extending the current collection requirements, but is seeking comment by May 9 on ways to minimize the collection burden through the use of automated collection techniques or other forms of information technology. The DOT also invited comments on:

•  whether the proposed collection is necessary and useful;

•  ways to enhance the quality, usefulness and clarity of information to be collected; and

•  whether the department has an accurate understanding of the burden of the proposed information collection.

The extension of the collection requirements would result in an amendment of the DOT’s final rule on accessibility of over-the-road buses (70 Fed. Reg. 11724).

Comments should be identified by DOT DMS Docket Number OST-1998-3648 and may be submitted at http://dms.dot.gov. For more information, contact Linda Lasley, attorney-advisor, Regulation and Enforcement, Office of the General Counsel, U.S. Department of Transportation, 400 Seventh St. SW, Washington, DC 20590, (202) 366-4723.   

National parks will have proposed guidelines for making their trails and camping sites readily usable by people with disabilities this summer, the Access Board announced.

Different levels of terrain raise numerous questions about how and to what extent access to trails, beach access routes, and picnic and camping sites can be achieved. The proposed guidelines will provide specifications for newly constructed and altered trails, including criteria for running slope or grades, cross slopes, widths, surfaces, passing spaces, edge protections and signs. There also will be provisions for picnic tables, fire rings, cooking surfaces and grills at picnic and camping sites.

After it releases the proposal this summer, the Access Board intends to follow up with recommendations for state and local parks covered by the ADA. For more information, contact Bill Botten at (202) 272-0014, botten@access-board.gov. 

Utah agreed to accelerate its schedule to make 5,000 miles of state roads navigable for wheelchair users by spending $1 million each year over the next 10 years to install curb ramps, according to Nile Easton, a state Transportation Department spokesman.

The agreement, approved by the legislature and signed in late March by Republican Gov. Jon Huntsman Jr., resolves the ADA lawsuit of wheelchair user Ronald Decker, who claimed he could not get around in the town of Layton without curb ramps. The court certified Decker’s case as a class action. Prior to the settlement, the state planned to complete the installation of ramps over the next 20 to 30 years, Easton said in an interview.

“This is a big project,” Easton remarked. He predicted $10 million would be enough to cover the cost of curb ramps, which he said range from $10,000 to $50,000, depending partly on topography and road conditions.

The state transportation department is conducting the project on its own. Every intersection of state road is being reviewed. Once the state has an inventory, it will start prioritizing, he noted.

Increased Personality Profiling Can Be Risky

Real-World Solutions, a feature of the ADA Compliance Guide newsletter, presents hypotheticals of common ADA compliance questions, cutting through the legal jargon to give professionals practical answers to solve their problems.

HR professional Karen Brooks is having a chuckle over the latest results from the Minnesota Multi­phasic Personality Inventory, used by Community Commerce.com to screen teller candidates.

“Looks like we’ve found people who’d be better at robbing a bank than working for one,” she mutters to herself.

“Talking to yourself again?” Her boss asks, stepping into her office.

“Oh, yeah. The MMPI results came back for our latest hopefuls. Not one would be a good fit, according to this test.”

“Does the ADA even allow MMPIs?” Her boss asks. “I thought medical examinations are prohibited at the pre-employment stage.”

How should Karen respond?

Double-Check Questions

Medical exams are prohibited at the pre-offer stage, but not personality tests, although HR professionals should screen out personality tests that have medical inquiries prohibited by the ADA, according to Jonathan Mook, a partner with the law firm of DiMuro, Ginsberg & Mook in Alexandria, Va.

As more jobs require teamwork, job candidates increasingly are being screened for traits such as honesty and cooperativeness, he noted in an interview. Personality tests are permitted by the ADA as long as they do not include medical inquiries and are not used as medical exams. There are “real red flags” if personality tests identify someone as manic or depressive, which smack of ADA disabilities, he pointed out.

“Employers need to double-check questions” on personality tests with the advice of counsel to make sure they are not unduly intrusive. In addition to ADA concerns, employers should make sure questions do not violate the right to privacy as applied to employers through constitutions in some states such as California, he added. Personality tests also should be validated to ensure they do not discriminate based on race, gender or age, he said.

Under the ADA, it is particularly important that HR, not medical staff, administer personality tests. Otherwise, the personality tests may be viewed as prohibited pre-employment medical exams, Mook cautioned.

Several factors are considered by the EEOC in determining whether personality tests actually are a medical examination. The agency looks at whether:

•  the test is administered or interpreted by a health care professional;

•  medical equipment is used for the test;

•  the test is designed to reveal an impairment or physical or mental health;

•  an employee’s performance of a task or physiological response to performing the task is measured;

•  the test is invasive; and

•  the test normally is given in a medical setting.

 The MMPI is probably the best known personality test, noted Chris Kuczynski, assistant legal counsel for the EEOC’s ADA Policy Division, in an interview. When a personality test can be used for medical purposes, as the MMPI can, “it can be tricky” figuring out how an employer is using it, he said.

At the pre-offer stage, the personality test should not be used for medical or disability-related purposes. Suppose a personality test has 100 questions that require a response of “yes” or “no” and among the innocuous questions is one asking whether an applicant frequently feels like staying in bed in the morning. If the applicant says “yes,” that may elicit information about a disability, Kuczynski said.

Check With Vendor

But an employer “absolutely needs to talk with a vendor” before throwing out a question because that may compromise the validity of the personality test, according to Annie Murphy Paul, author of The Cult of Personality. If a test has questions that cross the line, a company may choose not to use the test at all.

The Myers-Briggs is a popular test among Fortune 100 companies — 89 use it, according to one study, Paul said in an interview. But it typically is used for current employees rather than pre-employment screening, which was not its intended purpose, she noted. Another study reports that 30 percent of companies use persona­lity tests, but usage varies widely by industry, she said.

Retailers, financial services companies and security firms often use personality exams. After the Employee Polygraph Protection Act of 1988 was enacted, many companies started using integrity tests, which now are frequently given online or in store kiosks before an applicant encounters any HR staff, Paul noted.

“A lot of personality tests look for conventional answers and those who will tow the company line. They can screen out people who are more creative and dynamic,” she cautioned.

Bruce Cedar, president of CMG Associates in Newton, Mass., added that “it is easy to use personality tests in lieu of good interviewing.” The passion that someone may have for a career may not surface in the tests, he observed.

Because personality tests are another layer in the screening process, employers should give careful thought to whether they “really are more than voodoo science,” Mook said. If the tests overshadow gut instincts that actually may prove to be better measures, they may be more trouble than they are worth.

The tests should not be administered simply as a way to wade through countless resumes for one position, he added. Rather than narrowing the applicant pool generally, personality tests really should enlighten an employer about how a candidate would perform a job’s essential functions, Mook remarked.

Jessica Quirk, director of HR for Thrive Networks, an IT outsourcing firm in Concord, Mass., said a Forte Institute personality test helps her organization make placements that are the best fits.

“There’s no right or wrong to it. The whole thing is positive,” and informs HR about whether the person is introverted or extroverted, dominant or supportive, patient or pressing, and conformist or nonconformist. She says the test “tends to be right on.” Civil engineers, who tend to be skeptical, “were shocked by how accurate it is.”

When the company was looking for a high-level administrator to assist an engineer, it helped the employer decide between “two wonderful candidates,” Quirk recalled. The engineer and administrator would need to work together seamlessly. The candidate selected “works together beautifully” with the engineer.

Used for screening, the test is “an extra data point that adds a lot more insight into where someone should be comfortable landing. It’s not an end-all, be-all,” Quirk concluded.  

Test Is No Match for Judgment

Reliance on a personality test instead of an HR professional’s own instincts is a real misuse of a test, according to Dan King, principal of Career Planning and Management Inc. in Boston. But if used as part of an exhaustive assessment to make sure there is not some factor that was overlooked, a personality test can be a useful tool, as long as an appropriate test is selected, he added.

Some personality tests are not best for screening, he said. The Myers-Briggs personality test is a wonderful tool that gets an enormous beating in the press because it gets in the hands of the wrong people, he said in an interview with a Guide editor. It is good for measuring leadership style, but is not intended as a screening device, King stated.

Other personality tests such as the Minnesota Multiphasic Personality Inventory are more clinical, and may be perceived by some applicants as crossing a line, he said. “If I was asked to take an MMPI for an organization, I’d think twice.”

The selection of a personality test will not only satisfy an organization’s needs but tell something to applicants about an employer’s corporate culture, he noted. Consequently, HR should give careful consideration to whether a personality test fits the personality of the employer.

And employers should use tests to match profiles of their star performers. Too often tests are given in a vacuum without matching them to a company’s best workers, he said.

How tests are administered can affect the results, too, King said. Often the results are truest to an applicant’s personality if a manager encourages applicants to relax, kick off their shoes and take it outside the shadow of a hovering interviewer. Post-offer personality tests that are completed at home may make a lot of sense, he said.

At the post-offer stage, the personality tests are less likely to get in the way of HR’s own gut reactions and be used more as a tool for due diligence, he said. “HR professionals need to have instincts about people to begin with.”  

Federal Aviation Administration inspectors were directed by the U.S. Department of Transportation to review the accessibility of aircraft as part of their routine safety inspections.

The FAA made this change after several Air Carrier Access Act investigations resulted in consent orders and civil penalties, the agency said in a Federal Register notice. While the ADA applies to airline employees and airports that are not owned by carriers, the Air Carrier Access Act applies to planes and airports owned or operated by airlines (see ¶472).

New or altered planes are required to have:  

•  movable armrests on at least half the aisle seats on aircraft with 30 or more seats; 

•  a priority storage area for a passenger’s folding wheelchair on planes with 100 or more seats;

• an accessible lavatory on aircraft with more than one aisle; and

•  an on-board wheelchair in certain instances.

Retrofitting of old planes is not required. However, an on-board wheelchair on old planes with more than 60 seats may be required in some circumstances, the FAA stated. And if a plane cabin is refurbished, the aircraft must meet the requirements for armrests and lavatories or any replaced sections of the aircraft such as in-cabin stowage areas (70 Fed. Reg. 11042-11043).

For more information on the notice, contact Blane Workie, Office of the General Counsel, 400 7th St. SW, Room 4116, Washington, DC 20590, (202) 366-9342, blane.workie@ost.dot.gov.   

Multistate class actions, including ADA lawsuits, may be moved from state courts, often too eager to certify classes, to more employer-friendly federal courts if corporations take advantage of the new Class Action Fairness Act of 2005.

Sen. Edward Kennedy, D-Mass., offered an amendment to exclude civil rights cases from the reach of the new law (Pub. L. 109-2). Kennedy warned that moving civil rights cases to federal courts will prove detrimental to many plaintiffs’ claims “because strict federal rules for class certification will prevent the plaintiffs” from being designated as a class. “If a federal court decides not to certify the class, that’s probably the end of the case.”

Kennedy predicted corporations would seek to move civil rights claims to federal court if plaintiffs were located in one state but the corporations are incorporated in another, regardless of where they conduct business. He noted that more than 308,000 companies are incorporated in Delaware, including 60 percent of Fortune 500 firms and 50 percent of corporations listed on the New York Stock Exchange. As a result, he predicted that, without the amendment, the law “will affect a huge number” of civil rights cases.

Sen. Arlen Specter, R-Pa., chairman of the Committee on the Judiciary, submitted a report that proponents of the amendment, which Congress rejected, “have it backwards.” 

“An amendment that would affirmatively exclude civil rights cases from federal jurisdiction would be contrary to a long tradition of encouraging the availability of our federal courts to address civil rights claims,” the report said. “Indeed, Congress has already enacted several statutes that are intended to ensure that civil rights cases can be heard in federal courts.” 

The FCC ended the waiver of three-way calling functionality for telecommunications relay services.

In June of 2003, the commission required that TRS providers offer three-way calling as a standard feature. TRS providers were able to convince the agency that they did not possess the technology to initiate three-way calls. This was especially true for captioned telephone service providers. The FCC waived the requirement until February 2005.

After investigating the situation further, the commission found that by clarifying the requirement, it did not have to extend the waiver for another year. TRS three-way calling permits more than two parties to be on the telephone line at the same time with the communications assistant.

Captioned telephone service permits a user on a standard telephone line to both listen to what the other party is saying and read captions simultaneously. No captioned telephone provider is able technologically to initiate or set up a three-way call, and only one non-captioned provider is capable of doing so.

By determining that the three-way calling requirement can be met if the provider is capable of handling a call initiated by one of the parties, even though the provider cannot originate or set up the call itself, the FCC was able to avoid extending the waiver. As long as parties to a relay call are able to participate in three-way calling, the TRS provider has met its responsibility under the commission’s rule.

The expiration of the waiver for general TRS providers does not affect the three-way calling waiver for Internet relay or video relay service providers. 

When Guidance Is No Guide

When the ADA was enacted in 1990 during the last years of the Bush 41 administration, the Equal Employment Opportunity Commission soon published regulations interpreting the act. Like the act itself, the original regulations were a product of intense negotiation among the White House, Congress and the agency.

A number of people, including many at the EEOC’s Disability Division, were unhappy with the compromises in the act and in the regulations. And they set out to do something about it. When the Clinton administration was elected, they launched the era of guidances.

Some definitions are probably required at this point. Regulations are recognized in law. They are drafted as per the instructions in a law; they must be “put out” for public notice and comment; they are subject to OMB review and judicial challenge; and, once issued in final form, they deserve deference from the courts.

A guidance is not any of that. A guidance is an instruction from EEOC headquarters to its investigators and litigators on a particular subject matter. (For these purposes, a guidance also includes similar publications such as Fact Sheets, “Q & A’s,” etc.) It is, then, a private communication. It is not subject to public scrutiny before it is published. It should receive no deference from the courts. And there’s