Category Archives: Americans with Disabilities Act

Blog arti­cles on: The Amer­i­cans with Dis­abil­i­ties Act of 1990 (42 USC 12101), amend­ed by The ADA Amend­ments Act of 2008. Here is a list of our blog arti­cles on this category:

Americans with Disabilities Act, Reasonable Accommodations, WV Human Rights Act

Understanding the Interactive Process Under the ADA: A Two-Way Street

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Let’s talk about a con­cept in employ­ment law that often gets over­looked or misunderstood—the “inter­ac­tive process” under the Amer­i­cans with Dis­abil­i­ties Act (ADA). If you rep­re­sent employ­ers or employ­ees, or you’re an HR pro­fes­sion­al nav­i­gat­ing accom­mo­da­tion requests, this process is absolute­ly cen­tral to ADA compliance.

It’s also one of the more com­mon areas where employ­ers get tripped up—not nec­es­sar­i­ly by refus­ing to accom­mo­date a dis­abil­i­ty, but by fail­ing to com­mu­ni­cate prop­er­ly and in good faith.

What is the Interactive Process?

Under the ADA, once an employ­er becomes aware that an employ­ee needs an accom­mo­da­tion for a dis­abil­i­ty, the law requires the employ­er to engage in an “inter­ac­tive process” with the employ­ee to iden­ti­fy a rea­son­able accom­mo­da­tion. The statu­to­ry basis is 42 U.S.C. § 12112(b)(5)(A), which defines dis­crim­i­na­tion to include not mak­ing “rea­son­able accom­mo­da­tions to the known phys­i­cal or men­tal lim­i­ta­tions of an oth­er­wise qual­i­fied indi­vid­ual with a dis­abil­i­ty,” unless the employ­er can show undue hardship.

The Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion (EEOC) explains that this is not a one-time conversation—it’s a col­lab­o­ra­tive dia­logue aimed at iden­ti­fy­ing and imple­ment­ing accom­mo­da­tions that allow the employ­ee to per­form the essen­tial func­tions of their job.\

The gov­ern­ing reg­u­la­tion, 29 C.F.R. § 1630.2(o)(3), puts it this way:

“To deter­mine the appro­pri­ate rea­son­able accom­mo­da­tion it may be nec­es­sary for the cov­ered enti­ty to ini­ti­ate an infor­mal, inter­ac­tive process with the indi­vid­ual with a dis­abil­i­ty in need of the accommodation.”.

Con­tin­ue read­ing Under­stand­ing the Inter­ac­tive Process Under the ADA: A Two-Way Street →
Americans with Disabilities Act, Disability discrimination

The ADA Amendments Act of 2008

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This arti­cle accom­pa­nies my gen­er­al arti­cle from today on dis­abil­i­ty dis­crim­i­na­tion law. On the impor­tant thresh­old issue of whether an employ­ee is even pro­tect­ed by the ADA, that is con­trolled by whether the employ­ee has a dis­abil­i­ty as defined by the ADA. The fed­er­al law on that issue is dra­mat­i­cal­ly dif­fer­ent before and after 2008, as I explain below, so every­one has to be very care­ful about rely­ing on law before 2008 for the ADA.

The ADA Amend­ments Act of 2008 (ADAAA) was enact­ed to restore and expand pro­tec­tions under the Amer­i­cans with Dis­abil­i­ties Act of 1990 (ADA) after Supreme Court deci­sions had sig­nif­i­cant­ly nar­rowed the scope of what qual­i­fied as a “dis­abil­i­ty.” The law took effect on Jan­u­ary 1, 2009.

Key Changes Made by the ADAAA

The ADAAA made sev­er­al crit­i­cal amend­ments to the ADA, pri­mar­i­ly by broad­en­ing the def­i­n­i­tion of dis­abil­i­ty and reject­ing pre­vi­ous restric­tive judi­cial inter­pre­ta­tions. Here are the main changes:

Con­tin­ue read­ing The ADA Amend­ments Act of 2008 →
Americans with Disabilities Act, Disability discrimination, WV Human Rights Act

Workplace Disability Discrimination: Understanding Rights and Employer Obligations

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Dis­abil­i­ty dis­crim­i­na­tion in the work­place is an issue that affects both employ­ees and employ­ers. With the Amer­i­cans with Dis­abil­i­ties Act (ADA) set­ting the legal frame­work, busi­ness­es must nav­i­gate rea­son­able accom­mo­da­tions while ensur­ing com­pli­ance. Employ­ees, on the oth­er hand, need to under­stand their rights and what steps to take if they expe­ri­ence dis­crim­i­na­tion. Let’s break it down.

What Is Disability Discrimination?

Dis­abil­i­ty dis­crim­i­na­tion occurs when an employ­er treats an employ­ee or job appli­cant unfa­vor­ably because of a dis­abil­i­ty. This can include:

  • Refus­ing to hire a qual­i­fied appli­cant due to a disability.
  • Fail­ing to pro­vide rea­son­able accom­mo­da­tions that would enable an employ­ee to per­form essen­tial job functions.
  • Wrong­ful­ly ter­mi­nat­ing or demot­ing an employ­ee based on their disability.
  • Harass­ing an employ­ee due to their dis­abil­i­ty or med­ical condition.

The ADA (42 U.S.C. § 12112) pro­hibits dis­crim­i­na­tion against qual­i­fied indi­vid­u­als with dis­abil­i­ties in all aspects of employ­ment, includ­ing hir­ing, fir­ing, pro­mo­tions, and job assignments.

Con­tin­ue read­ing Work­place Dis­abil­i­ty Dis­crim­i­na­tion: Under­stand­ing Rights and Employ­er Oblig­a­tions →
Americans with Disabilities Act, Disability discrimination, Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act (FMLA): What Employers and Employees Need to Know

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Life happens—whether it’s the birth of a child, a seri­ous health con­di­tion, or the need to care for a sick fam­i­ly mem­ber. The Fam­i­ly and Med­ical Leave Act (FMLA) pro­vides eli­gi­ble employ­ees with the right to take unpaid, job-pro­tect­ed leave in these sit­u­a­tions. But FMLA can be tricky, and both employ­ers and employ­ees need to under­stand their rights and responsibilities.

What Is FMLA?

The FMLA is a fed­er­al law that requires cov­ered employ­ers to pro­vide eli­gi­ble employ­ees with up to 12 weeks of unpaid leave per year for spe­cif­ic med­ical and fam­i­ly-relat­ed rea­sons (29 U.S.C. §2612). Dur­ing this time, employ­ees’ jobs and health ben­e­fits are protected.

Cov­ered rea­sons for FMLA leave include:

  • The birth, adop­tion, or fos­ter place­ment of a child.
  • A seri­ous health con­di­tion that pre­vents an employ­ee from per­form­ing essen­tial job duties.
  • The need to care for a spouse, child, or par­ent with a seri­ous health condition.
  • Qual­i­fy­ing exi­gen­cies relat­ed to a fam­i­ly member’s mil­i­tary service.

Addi­tion­al­ly, the FMLA pro­vides up to 26 weeks of leave for employ­ees car­ing for a cov­ered ser­vice­mem­ber with a seri­ous injury or ill­ness (29 U.S.C. §2619).

Con­tin­ue read­ing The Fam­i­ly and Med­ical Leave Act (FMLA): What Employ­ers and Employ­ees Need to Know →
Age Discrimination, Americans with Disabilities Act, Equal Employment Opportunity Commission, Title VII of the Civil Rights Act of 1964, WV Human Rights Act, WV Human Rights Commission

The Roles of the EEOC and the West Virginia Human Rights Commission in Workplace Discrimination Claims

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Work­place dis­crim­i­na­tion is a seri­ous issue, and employ­ees who believe they’ve been treat­ed unfair­ly often turn to the Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion (“EEOC”) or the West Vir­ginia Human Rights Com­mis­sion (“HRC”) for help. But what exact­ly do the EEOC and HRC do, and how does the com­plaint process work? Whether you’re an employ­er try­ing to stay com­pli­ant or an employ­ee con­sid­er­ing fil­ing a claim, it is impor­tant to under­stand the EEOC’s and HRC’s roles.

What Is the EEOC?

The EEOC is the fed­er­al agency respon­si­ble for enforc­ing anti-dis­crim­i­na­tion laws in the work­place. It inves­ti­gates com­plaints of dis­crim­i­na­tion based on race, sex, age, dis­abil­i­ty, nation­al ori­gin, reli­gion, and oth­er pro­tect­ed char­ac­ter­is­tics under laws like:

  • Title VII of the Civ­il Rights Act of 1964 (42 U.S.C. § 2000e‑2)
  • The Age Dis­crim­i­na­tion in Employ­ment Act (ADEA) (29 U.S.C. § 623)
  • The Amer­i­cans with Dis­abil­i­ties Act (ADA) (42 U.S.C. § 12112)

The agency also enforces laws pro­hibit­ing retal­i­a­tion, mean­ing an employ­er can’t pun­ish an employ­ee for fil­ing a com­plaint or par­tic­i­pat­ing in an investigation.

Con­tin­ue read­ing The Roles of the EEOC and the West Vir­ginia Human Rights Com­mis­sion in Work­place Dis­crim­i­na­tion Claims →
Age Discrimination, Americans with Disabilities Act, Equal Employment Opportunity Commission, Title VII of the Civil Rights Act of 1964

EEOC has updated its poster that employers must display

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The Unit­ed States Equal Employ­ment Oppor­tu­ni­ty Com­mis­sion (“EEOC”) has updat­ed its poster that employ­ers are required to dis­play in their work­places. Here is the EEOC’s web site on its poster. Here is an inter­net (HTML) copy of the poster. Here is the PDF of the print­able poster for wall dis­play. The name of the poster is “Know Your Rights: Work­place Dis­crim­i­na­tion is Illegal”.

The poster does a good job of edu­cat­ing employ­ees and employ­ers on essen­tial aspects of the fed­er­al anti-dis­crim­i­na­tion laws. It cov­ers what employ­ees are pro­tect­ed, what employ­ers are cov­ered, the pro­tect­ed char­ac­ter­is­tics about which the laws pro­hib­it dis­crim­i­na­tion, the deci­sions and con­duct of the employ­ers that are pro­hib­it­ed, and how an employ­ee can file a charge with the EEOC. In light of new­er tech­nol­o­gy, the poster has a QR code so an employ­ee can user a phone to jump straight to the EEOC’s web site for fil­ing a charge.

Con­tin­ue read­ing EEOC has updat­ed its poster that employ­ers must dis­play →
Americans with Disabilities Act, Disability discrimination, Drew Capuder, Family and Medical Leave Act (FMLA), Seminars

Drew Capuder Will Be Speaking at Sterling Employment Law Seminar

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On March 29, 2017, I will be speak­ing and pre­sent­ing an arti­cle on “The Per­ilous Inter­sec­tion of FMLA and ADA,” at a sem­i­nar host­ed by Ster­ling Edu­ca­tion Ser­vices. The Sem­i­nar, “Employ­ment Law: Rights, Ben­e­fits, and Emerg­ing Issues,” will take place in Mor­gan­town, West Vir­ginia. If you would like to attend the sem­i­nar click here for more infor­ma­tion and a reg­is­tra­tion form.

Here is the agen­da for my speech and article:

  1. FMLA updates
  2. ADA updates and EEOC guidelines 
    1. Expan­sion of what can be con­sid­ered a “dis­abil­i­ty”
    2. What con­sti­tutes “rea­son­able accom­mo­da­tion” accord­ing to the EEOC
    3. Dis­crim­i­na­tion and violations
    4. Review and update writ­ten poli­cies and job descriptions
  3. Over­lap of FMLA and ADA: find­ing the right balance
Americans with Disabilities Act, Disability discrimination, Drew Capuder, Family and Medical Leave Act (FMLA), Hostile work environment, Sexual harassment

Drew Capuder will be speaking on disability and sexual harassment issues in Morgantown Oct. 20, 2010

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I will be speak­ing (and pre­sent­ing arti­cles)  at a sem­i­nar spon­sored by Ster­ling Edu­ca­tion Ser­vices on Octo­ber 20, 2010 in Mor­gan­town, West Vir­ginia, enti­tled “Fun­da­men­tals of Employ­ment Law”.

I will be speak­ing (and pre­sent­ing arti­cles) on “Sex­u­al, Racial, and Oth­er Harass­ment in the Work­place” and “ADA and FMLA Update”.

Here is the full agen­da, and here is the fac­ul­ty infor­ma­tion. The sem­i­nar will pro­vide around 6–8 hours of con­tin­u­ing edu­ca­tion cred­it for lawyers (I don’t know the exact num­ber, but the sem­i­nar is a full day).

You can reg­is­ter for the the sem­i­nar online. For fur­ther infor­ma­tion, you can con­tact Ster­ling, and their num­ber is 715–855-0498.