ADA in Focus: Winter 2019

Volume 23, Number 1

ADA In Focus is published three times yearly by the Mid-Atlantic ADA Center. It is also available by request in large print, Braille, audio CD, and computer disk. To obtain copies in other formats, contact us.

ADA In Focus is intended for use by individuals, state and local governments, businesses, legal entities, and others interested in developments in the Americans with Disabilities Act. This publication is intended solely as an informal guidance and should not be construed as legally binding. ADA In Focus does not serve as determination of the legal rights or responsibilities under the ADA for any individual, business or entity. Learn more about the Mid-Atlantic ADA Center.

Winter 2019, Volume 23, Number 1 (suitable for printing)

Winter 2019, Volume 23, Number 1, in large print (suitable for printing)

In this issue:

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In the Foreground

Center Update: ADA Leadership Network

The ADA Leadership Network (ADA-LN) enhances implementation of the ADA by training and supporting ADA leaders in local communities. Some highlights of recent activities:

Collaboration is Key for the Central Pennsylvania Center for Independent Living

The Center for Independent Living of Central Pennsylvania (CILCP) is working with the Pennsylvania Coalition Against Domestic Violence (PCADV) to increase awareness of the ADA and disability issues. Long-time ADA-LN member Janetta Green was asked to assist with the development of e-learning modules to train domestic violence program advocates across the state. After the modules were developed, Janetta was invited to speak at a conference of program advocates and other stakeholders.

Another exciting ongoing collaboration that the CILCP is spearheading involves the Pennsylvania Association of Non-Profit Organizations (PANO). This collaboration started with Janetta and her colleagues providing a series of webinars on disability awareness and civil rights laws, accessibility, service animal issues, and serving individuals who are blind, deaf, or hard of hearing.

Additionally, while going through the Standards for Excellence accreditation process through PANO, Janetta learned that there were no requirements or standards related to accessibility for people with disabilities. Janetta drafted a brief accessibility checklist and recommended that it be added to the accreditation process. Janetta’s checklist, addressing both facility access and program delivery, was adopted by the National Association.

These exciting collaborations are increasing integration and supporting the individuals who are working passionately to make a difference in our communities.

Pennsylvania Human Relations Commission Speaks on Disability Rights and Trends at Annual Disability Employment and Empowerment Summit

ADA-LN member Heather Roth, the Regional Director of the Pennsylvania Human Relations Commission (PHRC), participated in the recent Pennsylvania Disability Employment and Empowerment Summit. Her presentation on disability rights and trends covered the intersection of the Pennsylvania Human Relations Act and the ADA, with a focus on employment and reasonable accommodation issues.

One big issue that Heather sees emerging is the practice of employers contracting with third parties to administer the Family and Medical Leave Act (FMLA). When employees use all the FMLA leave to which they are entitled, contractors focused solely on FMLA may recommend termination of the employee.

This can be problematic for the employer and for employees with disabilities who may be entitled under the ADA to reasonable accommodations in the form of additional unpaid time off, or other accommodations that might enable them to return to work. If employers fail to consider reasonable accommodations in cases like this, it can result in poor outcomes for both employees and employers.

West Virginia University Learns About Service and Support Animals

Service animals and other types of support animals are becoming more prevalent in public life, and universities are seeking to understand how to accommodate students who bring these animals to campus, including into dormitories and other university housing.

Teressa Oliverio Frease, an accessibility specialist at West Virginia University (WVU) in Morgantown, recently provided training to residential services staff, covering both ADA requirements for service animals and WVU’s policies regarding other types of support animals.

Teressa’s big message was that communication between students, residential services, and disability services is necessary to ensure the university can be as accommodating as possible while following legal and university requirements.

We highly recommend this type of training for other colleges and universities!

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Focal Point

Reasonable Accommodation: Reassignment

The ADA requires covered employers to provide “reasonable accommodation” to qualified applicants and employees with disabilities, and the statute specifically includes “reassignment to a vacant position” as an example of an accommodation. The U.S. Equal Employment Opportunity Commission (EEOC) further outlines their interpretation of reassignment in their regulations and guidance material.

According to the EEOC:

  • Reassignment is generally an accommodation of last resort, and is usually considered only when no other type of reasonable accommodation would enable a worker to continue in his current job.
  • A job must exist and be vacant to be considered for reassignment; an employer does not need to create a job or displace another worker.
  • Reassignment should be to a position that is as equivalent as possible in terms of pay, benefits, status, location, and other working conditions.

    • If there is no vacant job that is equivalent to the worker’s current job, an employer may offer a lower-level job if one is available; an employer does not have to offer a promotion. If a worker is reassigned to a lower-level job, the employer does not have to maintain a higher rate of pay, better benefits, or other more favorable conditions that were associated with the old position, except to the extent the employer routinely does so for workers without disabilities being moved into such positions.
  • A worker must be qualified for the new position; that is, she must meet the minimum job-related requirements, and be able to perform the essential functions of the job, with or without other types of reasonable accommodation in the new position. However, she does not need to be the best qualified candidate for the job; she does not need to compete with other applicants. She doesn’t need to compete with other employees seeking transfers, either, unless another employee has seniority in a workplace that has a consistently applied seniority system.

    • An employer does not need to provide training or other assistance to enable a worker to become qualified for a job, except to the same extent that such training or assistance is typically provided to others being hired or transferred.

Employer’s Challenge

Many employers have challenged the EEOC’s view that reassignment should be non-competitive. Employers have argued that implementing reassignment as outlined by the EEOC – giving preference to workers with disabilities over others who may be more qualified – amounts to affirmative action, which the ADA does not generally require.

Additionally, some employers have asserted that giving preference in reassignment to workers with disabilities imposes an undue hardship, because not being able to place the best possible job candidates undermines the employers’ ability to function at optimal levels.

Government’s Response

The EEOC and the Department of Justice have argued that while giving preferential treatment to individuals with disabilities is not required in most employment situations, reasonable accommodation is different by its very nature and definition. Reasonable accommodation means doing unique things for workers with disabilities.

The ADA lists a number of examples of reasonable accommodation along with reassignment, including making existing facilities accessible, job restructuring, modifying work schedules, acquiring equipment or devices, providing readers or interpreters, and making appropriate adjustments to tests, training materials, or policies.

These and other forms of accommodation are intended to be implemented on an individualized basis. If an employer, for example, can reasonably adjust the work schedule of an employee with a disability to enable him to continue performing his job, it doesn’t mean the employer changes all employees’ schedules or allows employees to work whatever schedules they like.

If some preference were not given in implementing reassignment for a worker with a disability, then the reassignment would not really be a form of accommodation. Allowing an individual to compete for a vacancy is merely non-discrimination. Without preference, “reassignment would be of little value and would not be implemented as Congress intended.”1

The Courts Split

Several federal circuit courts (which hear appeals from district courts) have agreed with employers and held that reassignment simply requires employers to allow employees with disabilities to compete with other applicants. The 11th Circuit Court (encompassing the states of Florida, Georgia, and Alabama), the 8th (Arkansas, Missouri, Iowa, Minnesota, Nebraska, South Dakota, and North Dakota), the 6th (Kentucky, Tennessee, Ohio, and Michigan), and the 5th (Mississippi, Louisiana, and Texas) have all issued similar rulings.

On the other hand, the 10th (Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah), 7th (Indiana, Illinois, and Wisconsin), and the District of Columbia circuit courts have agreed with the government’s position and held that reassignment, like other forms of reasonable accommodation, must often entail more than mere equal treatment to ensure equal opportunity. Taking positive steps, making adjustments, or providing things not typically provided to all workers (or “preference”) is inherent in the concept of reasonable accommodation.

Other than in the District of Columbia, no appeals court in our Mid-Atlantic region has yet tackled this issue. However, within the 4th Circuit (which includes Maryland, Virginia, West Virginia, North Carolina, and South Carolina) at least two district courts have addressed the question, and each has held that preference is not required in reassigning employees with disabilities where an employer has non-discriminatory policies related to hiring, transfers, and assignments.2

A case may eventually make its way to the Supreme Court and resolve this split among the lower courts, but meantime we may continue to see debate and conflicting rulings on this issue.


1 Equal Employment Opportunity Commission (EEOC) Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA 
2 Eastern District of Virginia in United States v Woody (Richmond City Sheriff’s Office), and Western District of North Carolina in Elledge v Lowe’s Home Centers, LLC

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Zoom in on Training

ADA National Network Online Learning

Check out the ADA National Network’s online learning programs, which include live webinars and archived sessions on a broad range of topics, including architectural design, accessible technology, arts and recreation, ADA legal developments, and much more. Upcoming sessions:

National ADA Symposium

June 16 – 19, 2019
Grapevine, TX
This comprehensive conference features more than 100 break-out sessions, optional pre-conference sessions, a variety of exhibits, and plenty of networking opportunities!

Save the Date: Annual Mid-Atlantic ADA Update

November 14 – 15, 2019
Philadelphia, PA
Our annual conference will offer a wide range of up-to-date information on ADA regulations and guidelines, as well as strategies and best practices for successful implementation of the law. Stay tuned for more details!

This is just a sample of the variety of training opportunities coming up on a local, regional, and national level. Visit our Trainings pages for a comprehensive listing!

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Close-Ups: What's New

DOJ: Businesses Have Flexibility in How They Ensure Access to Websites

The U.S. Department of Justice (DOJ) issued a letter responding to inquiries from members of Congress who sought clarification on the application of the ADA to businesses’ websites. DOJ’s letter reiterates the position they took “over 20 years ago” – that the ADA applies to public accommodations’ websites, regardless of whether there is a specific regulation or technical standard.

DOJ notes (as they have in the past with other elements, spaces, or technologies for which there are no technical accessibility specifications), that the absence of a technical standard does not “serve as a basis for noncompliance” with the ADA’s general obligation to ensure equal access to goods and services; rather, it means that public accommodations have “flexibility” in how to facilitate that access.

There are standards and guidelines that can help web developers create and maintain accessible websites. For example, the Web Content Accessibility Guidelines (WCAG), developed by the Web Accessibility Initiative (WAI), have long been available, and DOJ has often referred to these guidelines as a way of measuring the accessibility of websites.

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Zoom in on Court Decisions and Settlements

Settlement: Virginia Medical Practice to Implement New Policies, Pay Damages and Penalty for Refusing Services to Individual in Medication-Assisted Treatment

The U.S. Department of Justice (DOJ) recently entered a settlement agreement with Selma Medical Associates, a practice that offers both primary and specialty care in Winchester, Virginia.

DOJ conducted an investigation based on a complaint that the medical practice refused to schedule a family care appointment for a new patient when he revealed he takes Suboxone to treat opioid use disorder (OUD). DOJ found that the practice was routinely refusing services to individuals who were being legally treated with narcotic controlled substances for OUD or other addictions, which are generally considered disabilities.

According to DOJ, at the time the complainant sought routine care from Selma, he did not engage in the illegal use of drugs and had participated in a supervised rehabilitation program, therefore he was entitled to protection under the ADA.

Selma will develop a new policy and implement an extensive staff training program to ensure individuals will not be inappropriately denied services.

The practice will also pay the complainant $30,000 as compensation for the harm he experienced, as well as a $10,000 civil penalty.

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Cool Websites

New Employment Resources from DOL

The new Office of Compliance Initiatives in the U.S. Department of Labor (DOL) launched two websites to help workers and employers find information about federal laws that address workplace health and safety, fair pay, family and medical leave, unions, veterans’ issues, discrimination, and more. 

Worker.gov and Employer.gov provide centralized collections of information to help workers understand their rights and employers understand their responsibilities.

Also from DOL, Apprenticeship.gov, connects employers and job seekers through apprenticeship programs, and features a search tool that enables career seekers to find programs by city, state, and occupation.

Disability Etiquette: It’s Just Respect

This YouTube playlist from MossRehab includes six brief videos (about one to two minutes each) featuring stories of “disability etiquette gone wrong.” Individuals with different types of disabilities share experiences and tips for respectful communication and interaction.

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