Newsletter – August 2012 (page 4)

Newsletter – August 2012 (page 4)


Revised ADA Regulations Implementing Title II and Title III

On Thursday, March 15, 2012, Attorney General Eric Holder signed a final rule extending the date for compliance with sections 242 and 1009 of the 2010 Americans with Disabilities Act (ADA) Standards for Accessible Design relating to the provision of accessible entry and exit for existing swimming pools, wading pools, and spas for a period of 60 days after the publication of the rule in the Federal Register.  On that same day, the Attorney General also signed a Notice of Proposed Rulemaking (NPRM) seeking public comment on whether a longer period of time would be appropriate to allow pool owners and operators to meet their compliance obligations.  Specifically, the NPRM proposes a 180-day extension of the deadline.  Comments on the NPRM will be accepted for 15 days after publication in the Federal Register.

See the comments below regarding this unnecessary federal foot dragging.


They are considering (an additional) 180 days after this current 60 (days).

. . .  The Department of Justice is seeking input from the public regarding reasons for either reinstating the requirement after 60 days, or, extending the extension even longer because of public outcry from businesses that they can comply so quickly.  I already made a comment simply stating I’m a quadriplegic for 38 years, serve as a consultant regarding ADA compliance and accepted as an expert by 14 federal judges.  I have a pool lift myself and am able to use it independently for exercise, health and enjoyment.  The expense was less than $1500 to install.  Public entities can do the same and obtain a tax credit or tax deduction to create an inclusive facility for everyone including the disabled.  They can accomplish this inclusive setting and capital improvement at essentially no expense with the tax deduction and tax credit.”


Michael Brennan M.A.

ADA Consultant

7955 Biscayne Point Circle

Miami Beach, Florida 33141


EEOC Sues Vitas Healthcare for Disability Discrimination

By The HR Specialist: Florida Employment Law, Business Management Daily

March 10, 2012

The EEOC has filed suit against Miami-based Vitas Healthcare alleging it violated the Americans with Disabilities Act (ADA) when it made a disabled employee compete for a vacant position.  The case raises a critical question that could carry it all the way to the Supreme Court.

Eveline Chery’s job required her to drive to various locations, which aggravated her hypertension.  She asked to be reassigned to a vacant position without so much driving. Vitas agreed to allow Chery to compete with other applicants for the position, but said it would not give her preference for the opening.  The EEOC’s lawsuit claims that this is illegal disability discrimination.

The case mirrors Huber v. Wal-Mart, a case that was settled privately before the Supreme Court could decide it.  In that case, the 8th Circuit Court of Appeals ruled that employers may allow competition for open positions when a disabled employee is involved without violating the ADA.  But other federal appeals courts have ruled that employers in this situation must place the disabled employee in the open position.  Because the Huber case was settled, the Supreme Court never resolved the split.  The 11th Circuit—which covers Florida—has never addressed the issue.

In a statement on the lawsuit, the EEOC said the ADA Amendments Act (ADAAA) of 2008 requires employers to accommodate employees by reassigning them to open positions.  However, documents on EEOC’s web site state that the ADAAA made no changes to the accommodation process other than stating that employees who were merely “regarded as” disabled are not entitled to accommodation.  This could be the case that ultimately goes to the Supreme Court.  We will keep you apprised of the progress of this case.

EEOC Sues AT&T for Disability Discrimination

INDIANAPOLIS (March 29, 2012) — The U.S. Equal Employment Opportunity Commission (EEOC) today filed suit against AT&T Corp., a leader in telecommunication services, for failing to reasonably accommodate a long-term employee’s disability and then firing her because of that disability.  According to the EEOC’s suit, Lupe Cardona, who worked for AT&T Corp. as a customer service representative in Indianapolis from 1984, requested a reasonable accommodation in the form of a finite leave of absence in order to receive interferon treatment for Hepatitis C.  Without the treatment, her disease could have eventually been fatal.

Upon learning of Cardona’s disability and need for a leave of absence, AT&T granted her leave request from June 24 to Oct. 24, 2010, when her physician determined the treatment was successful and released her to return to work without restriction.  Two days later, AT&T fired her, claiming her use of approved leave to receive life-saving treatment violated its attendance policy.  AT&T refused to provide Cardona a reasonable accommodation by exempting her leave of absence from its no-fault attendance policy.

The EEOC claims that such alleged conduct violates the Americans with Disabilities Act (ADA).  The EEOC filed its lawsuit in U.S. District Court for the Southern District of Indiana (EEOC v. AT&T Corp., Civil Case No.: 1:12-cv-0402-TWP-DKL) after first attempting to reach a pre-litigation settlement through its conciliation process.  The EEOC’s lawsuit seeks back pay, compensatory and punitive damages and reinstatement or front pay for Cardona as well as injunctive relief, including a court order prohibiting AT&T from failing to provide reasonable accommodation to disabled employees by counting absences caused by their disability as “chargeable,” or unprotected, absences under its attendance policy.

“The refusal of AT&T to make a perfectly reasonable exception to its draconian attendance policy to accommodate the known disability of an employee violated federal law as well as common sense and common decency,” said EEOC trial attorney Patrick Holman.  Barbara A. Seely, regional attorney of the EEOC’s St. Louis District Office, added, “This employer’s conduct is precisely what Congress had in mind when enacting the ADA.  The very essence of reasonable accommodation is making exceptions to hard-and-fast rules in circumstances like this when to do so causes no undue hardship to the employer – and failing to do so might cause grave harm.  AT&T’s actions here were not only baffling, but downright cruel.”

"Newsletter – August 2012" table of contents

  1. Newsletter – August 2012
  3. Steve Gold’s “Treasured Nuggets of Information”