DGRead 22.03.01

The ADA: Impact of COVID-19; The Virginia House vs. Senate on the Sale of Marijuana: February Update; Virginia’s New Battle Over Minimum Wage

DGRead 22.02.15

IMLA Webinar > The Americans with Disabilities Act Update: The Impact of COVID-19; ADA Claims on the Rise; COVID-19: Infection as a “Regarded As” Disability

DGRead 22.02.01

How Could a Politically Divided Government Affect the Regulation of the Sale of Marijuana in Virginia?; Policy doesn’t apply to closures caused by COVID orders: Because There Might be “TROUBLE AHEAD AND TROUBLE BEHIND” the ADA Does Not Protect a Railroad Engineer from Having to Turn Over His Medical Records after a Positive Drug Test

TROUBLE AHEAD AND TROUBLE BEHIND

Because There Might be “TROUBLE AHEAD AND TROUBLE BEHIND” the ADA Does Not Protect a Railroad Engineer from Having to Turn Over His Medical Records after a Positive Drug Test

On January 14, 2022 the Fourth Circuit Court of Appeals ruled that a Railroad engineer did not comply with the ADA when he did not provide employer railroad with sufficient paperwork about his positive drug test that showed signs of amphetamines and codeine, which the Engineer said he was prescribed for his bad back and ADHD. The unanimous panel found that the lower court had properly granted summary judgment to the Railroad employer who was allowed to, and indeed was required to follow the Federal Railroad Administration’s regulations in obtaining the medical records to determine if the engineer was fit to continue his employment. The Fourth Circuit stated:

[a]s to the improper medical inquiry issue, the district court concluded that Norfolk Southern’s records requests were permissible under the ADA because it had an objectively reasonable basis to believe that Coffey could not properly carry out his duties and that he posed a safety risk. Coffey v. Norfolk S. Ry. Co., No. 2:19CV509, 2021 WL 879121, at *4, 7 (E.D. Va. Feb. 5, 2021). It also noted that the requests were consistent with business necessity because Norfolk Southern was required by federal safety regulations to inquire into employees’ use of controlled substances. Id. at *5–6. As to the discrimination claim, the district court applied the McDonnell Douglas burden-shifting framework. It found that Coffey failed to make out a prima facie case because he did not show that he was disabled, id. at *8–9, nor did he provide evidence that Norfolk Southern’s legitimate, non-discriminatory reasons for terminating him were pretextual, id. at *12. Coffey now appeals the district court’s determination that the medical inquiries were proper under the ADA

At part II of the Opinion, the Court provided a lengthy discussion about the history of the railroads and the potential substantial harm, then, as well as presently, for litigation and liability were a train locomotive engineer not fit to keep the train from derailing and the like. The Court emphasized the importance of the safety regulations that were enacted to protect the public and the railroad.

Moreover, the legal regulation required that the medical records be fully provided even if the railroad did not then have a reason to believe that the Engineer could not do his job.  The railroad not only wanted the medical records but also wanted its questions addressed as to what were the side effects of the medications, was there any reaction between these medications and any other that the Engineer was taking, and whether the doctors had concluded that he could perform all of his duties if taking the medications.  Although the Engineer provided the Railroad with over 400 pages of medical documents, the specific information regarding the medications interactions and effects on his ability to do his difficult job was not addressed.  Ultimately the Court held that:

“[i]n requesting medical records from [the Engineer], Norfolk Southern was fulfilling its regulatory obligation to investigate his drug usage with due diligence. Were a failure to investigate to cause a train wreck, Norfolk Southern would be told under the unremitting glare of hindsight of all it should have done.

That being the case, it is like the Grateful Dead sing about the Engineer Casey Jones who was taking a different substance, “trouble ahead and trouble behind, and you know that notion just crossed my mind.” The Norfolk Southern was well aware of the trouble it was presented and decided that it was not required by the ADA to ignore its regulatory obligations. The Fourth Circuit unanimously agreed.

Lastly, ironically, the Engineer in this case was represented by the Casey Jones Law Firm.

How Could a Politically Divided Government Affect the Regulation of the Sale of Marijuana in Virginia?

By M. Jarrad Wright

Last year, the Commonwealth of Virginia became the first state in the deep south to legalize marijuana. While legalization was relatively easy, regulating the manufacture and sale of marijuana is proving to be more difficult. The legalization law contained various plans for government agencies, tax schemes, and permitting that is to go into effect by 2024. However, in a compromise to ensure passage of legalization, the General Assembly included language in the bill requiring a future approval of the plan after more study and consideration after the November 2021 elections. Of course, the Republican takeover of the Virginia House of Delegates and the Governor’s mansion in Richmond and a Democrat controlled state Senate means that divided government is now the norm in Virginia. How that divided government will impact the regulation of the sale of marijuana is now at the forefront of Virginia politics.

The primary question of whether the Republican House majority would attempt to repeal legalization was answered quickly after the election when House members indicated that they would not try to recriminalize marijuana, and instead, they would attempt to speed up the long-time table for setting up the regulatory mechanisms. In fact, news reports out of Richmond have indicated that lawmakers on both sides share this goal and share the goal of getting rules in place quickly to lower the chance of an illegal black market undercutting legal sales and tax revenue.

However, the devil is in the details, and the details of marijuana regulation are being fought in the General Assembly. At this time, Republican law makers have filed at least eight bills to amend the original statute in order to alter the regulatory scheme. This includes bills that would redirect marijuana sales revenue from a cannabis equity reinvestment fund to the general fund and other priorities and includes provisions that would eliminate any consideration for giving licenses based upon social or equity concerns in favor of to people living in economically distressed areas and for persons who have previously legally grown hemp. Other amendments involve the tax rate to apply to sales.

At the time of original passage, supporters of the legalization bill touted the regulatory structure as a means of correcting historical injustices on certain communities, including people disproportionately impacted by marijuana criminalization laws. However, that bill passed on party lines, and the new compensation of General Assembly, a new Republican governor, and a bill that requires reenactment before it takes effect guarantees that changes to the bills structure will occur and that new priorities may be emphasized. Ultimately, it is still early in the legislative process, and the final position of each party, and individual members, remains unknown. That said, both sides want to proceed so the chance for compromise remains. In the meantime, businesses that may be impacted by the legalized sale of marijuana should continue to monitor the legislative session as important updates are likely to occur this year.

If you have any questions or comments on this article, contact Jarrad Wright at jwright@dimuro.com.

DGRead 22.01.15

OFCCP’s New Contractor Portal; 2022 Heralds Changes for Virginia Employees; DiMuroGinsberg Congratulates Selma Modesste!

DGRead 22.01.01

Overcoming COVID-19 Challenges in the Workplace; Americans with Disabilities Act: November, 2021 Litigation Update; Rocket Docket Update; The Biggest Disability Bias Decisions of 2021; Are You Tripped Up When it Comes to Making Your Building ADA Compliant?; Happy New Year!

Americans with Disabilities Act: November, 2021 Litigation Update

Title I – Employee Rights and Employer Obligations

“Regarded As” Disabled
In EEOC v. Place, the Sixth Circuit Court of Appeals emphasized that under the “regarded as” prong of the definition of disability, an employer need not regard an employee as having an impairment that substantially limits a major life activity. All that is required is that the employer perceive the employee as having an impairment and, as a result, take an adverse job action against the individual. In its decision, the appeals court found that a reasonable jury could conclude that the employer had regarded the employee as being disabled where the employee disclosed to the employer that she experienced anxiety for which she was taking medication and had a history of panic attacks, and thereafter, the employer had terminated her.

Qualified Individuals – Essential Functions
To be entitled to the protections of the ADA, an individual with a disability must be able, with or without reasonable accommodation, to perform the essential functions of the job. For most jobs, regular and predictable attendance is considered an essential function. Thus, in Weber v. BNSF Rwy. Co., the Fifth Circuit upheld the dismissal of an ADA lawsuit brought by an epileptic train dispatcher because he could not maintain regular worksite attendance. The court concluded that regular attendance was an essential function of the job even though, in the past, the employer had granted the employee “leniency” in disciplining him for missing work.

Social Security Disability
What is the impact of an individual’s application for and receipt of Social Security Disability Insurance benefits to a disabled employee’s ADA claim? In Thompson v. Gold Medal Bakery, Inc., the First Circuit affirmed the lower court’s grant of summary judgment to an employer where a former employee, who had undergone knee replacement surgery, asserted in his application for Social Security Disability that he was unable to work at the time of his discharge, and he failed to offer an explanation as to how he still could perform his former job.
Ministerial Exception

The U.S. Supreme Court has interpreted the First Amendment as insulating religious organizations from judicial scrutiny in employment cases where the courts would need to intrude into matters of religious doctrine. In Demkovich v. St. Andrew the Apostle Par., the Seventh Circuit Court of Appeals held that this First Amendment ministerial exception applies not only to hiring and firing of an employee, but also claims of harassment. In that case, a church music director asserted that a priest had harassed him based upon his weight and diabetes in violation of the ADA. In upholding the dismissal of the music director’s lawsuit, the Seventh Circuit, sitting en banc, found that adjudicating the plaintiff’s allegations would cause “civil intrusion into, and excessive entanglement with, the religious sphere.”

Reasonable Accommodation
A defining feature of the ADA is the requirement that employers reasonably accommodate disabled employees so that they can perform the essential functions of the job. Oftentimes, a reasonable accommodation is necessary because without the accommodation the employee is unable to perform the essential job functions. But, as the First Circuit Court of Appeals pointed in Bell v. O’Reilly Auto Enters., that is not always the case. An employer’s obligation to reasonably accommodate a disabled employee also may arise in those circumstances where a disabled employee has difficulty performing the essential functions of the job and requests an accommodation to make job performance easier.

Reasonable Accommodation – Hiring Another Employee
An employer’s obligation to reasonably accommodate a disabled employee does not encompass hiring another employee to perform the disable employee’s essential job functions. This principle is shown by the decision of the Fifth Circuit Court of Appeals in Thompson v. Microsoft Corp. In that case, an account technology strategist, who suffered from autism spectrum disorder, requested that other employees assist him with translating verbal information into written materials, recording meeting notes, and performing certain administrative tasks. Because this would have entailed hiring someone to work with the employee on a full-time basis, the appeals court upheld the lower court’s dismissal of the case.

Reasonable Accommodation – Creating a New Position
While reasonable accommodation may require an employer to modify a job’s non-essential functions, it does not require an employer to create a job for a disable employee. In Perdue v. Sanofi-Aventis US, LLC, the Fourth Circuit Court of Appeals followed this principle in ruling that an employer was not required to divide the workload of a single, full-time position between two employees where it would have required the employer to create a new part-time job. In that case, the plaintiff requested that her employer accommodate her mobility impairments by authorizing a part-time job share arrangement with a colleague. In upholding the dismissal of the employee’s lawsuit, the Fourth Circuit found that the requested job share arrangement, in essence, was a request to create a new position, which was beyond the employer’s legal obligations.

Shift Work
In production jobs, it often is the case that working a full shift constitutes an essential job function. If that is the case, then a request to work less than a full shift would not be a reasonable accommodation. In Thompson v. Fresh Prods., the Sixth Circuit Court of Appeals recognized this principle in upholding the dismissal of an ADA claim brought by a disable employee who worked a production job and sought part-time work. In concluding that the employer was not required to grant the employee’s request, the circuit court noted that the employee handbook stated that workers must be able to work a full shift and that the employer had provided sufficient evidence that it would be very difficult for the employer to have an employee leave the workplace in the middle of a shift given the production requirements.

Attorney Fees
The ADA provides that successful plaintiffs in a lawsuit may recover their attorney fees for pursuing the legal action when they are a prevailing party. In Reyazuddin v. Montgomery County, the Fourth Circuit considered whether a plaintiff who had sought accessible software, but which was denied by the employer, was a prevailing party. In that case, after the jury found that the employer had failed to reasonably accommodate the employee, the employer provided the employee with the software. Due to the employer’s action, the trial court denied the employee’s request for injunctive relief and declined to issue a declaratory judgment that she had been discriminated against because doing so would have been superfluous to the jury’s verdict. The trial court also declined to award the employee her attorney fees, finding that she was not a prevailing party. On appeal, the Fourth Circuit reversed, concluding that because the jury had returned its verdict prior to the County providing the accommodation, the employee was a prevailing party, and accordingly, she was entitled to attorney fees.

Title III – Public Accommodations and Commercial Facilities

Commercial Websites
The courts have taken various positions as to whether Title III of the ADA applies to the website of a commercial business. In a precedent setting case, the Eleventh Circuit Court of Appeals in Gil v. Winn-Dixie Stores, Inc., held that Title III does not apply to a business website irrespective of whether the business also has a physical location. The case involved a grocery store chain, which operated a website for the convenience of its customers, but did not offer any sales through the site. A long-term customer of the grocery store, who was legally blind and used screen reader software, filed a Title III action against the grocery store chain claiming that his inability to access the website with his screen reader software prevented him from filling his pharmacy prescriptions online. Although the plaintiff prevailed before the district court, the Eleventh Circuit reversed, concluding that under Title III’s plain language, “public accommodations are limited to actual, physical spaces.”

Service Animals
A public accommodation may need to accommodate a disabled individual’s service animal even though the public accommodation may have a “no pets” or “no animals” rule. In order to come within the definition of a “service animal,” the animal must be individually trained to perform tasks related to the disabled person’s disability. However, the service animal need not be formally certified as such.

Readily Achievable Accessibility
If a place of public accommodation contains barriers to individuals with disabilities the public accommodation must remove the barriers, where doing so is readily achievable. What does readily achievable mean in practice? In Whitaker v. Temple West Plaza, the U.S. District Court for the Central District of California ruled that it was not “readily achievable” for a shopping center to reduce the slope on a path of travel to the shopping center’s stores because the slopes exceeded the ADA requirements by only a few percentage points and the construction costs were over $25,000. In addition, the court noted that the construction would have eliminated parking spaces in the shopping center’s parking lot and interrupted the operation of the shopping center’s businesses. All of these costs, the court reasoned, outweighed the “nominal benefit” obtained from reducing the path of travel slope.

Gift Cards
Many businesses offer gift cards for customers to purchase. In order to comply with its ADA obligations, must the business offer gift cards in Braille for customers who have sight impairments? In Lopez v. Arby’s Franchisor, LLC, the U.S. District Court for the Southern District of New York followed the decision of other courts in holding that the ADA does not. Accordingly, the court ruled that the owner and operator of fast-food restaurants was not required to stock accessible gift cards or offer gift cards in Braille.

Accessible Dining Services
In bars and restaurants, the ADA requires that seating for disabled individuals be integrated so that they may enjoy the privileges offered by the bar or restaurant in the same manner as non-disabled patrons. In Mortland v. Local Cantina Dublin LLC, the U.S. District Court for the Southern District of Ohio ruled that where a restaurant did not provide accessible seating in the area of its bar, the restaurant violated the ADAAG requirements that five percent of a restaurant and bar’s dining services be accessible. As the court explained, “if dining and drinking is available at the bar for able bodied patrons, then disabled people are likewise entitled to full and equal enjoyment of this privilege.”

Enforcement of Title III
In order for disabled plaintiff to pursue a Title III lawsuit that a public accommodation is not accessible, the plaintiff ordinarily must demonstrate a credible or concrete plan to visit the public accommodation and partake of its goods or services in the future. In Kennedy v. Floridian Hotel, Inc., the Eleventh Circuit Court of Appeals applied this requirement in upholding the dismissal of a lawsuit brought by a plaintiff who was mobility impaired and alleged that the hotel he had visited was not accessible. In finding that the plaintiff had failed to demonstrate that he had standing to pursue his suit, the court noted that the plaintiff had visited the hotel only once for a few hours as an ADA “tester” and lacked a credible plan to return to the hotel or even to the city where it was located.

Inspection of Premises
In order to determine the degree to which a public accommodation may be inaccessible to persons with disabilities, courts have allowed a disabled plaintiff to inspect the property encompassed by the public accommodation. The courts, however, have required that any requested site inspection be relevant and proportional to the needs of the case. This principle was applied by the U.S. District Court for the Southern District of New York in Antolini v. Thurman. In that case, the court ordered a retail store to permit access by the disabled plaintiff and his expert for a site inspection to determine the extent to which there were barriers to mobility in the store.

Author
Mr. Mook is a nationally recognized practitioner in employment law and has written two treatises : Americans with Disabilities Act: Employee Rights and Employer Obligations and Americans with Disabilities Act: Public Accommodations and Commercial Facilities, both published by LexisNexis. He represents employers and businesses on matters relating to employment law, business torts and business disputes.

Mr. Mook frequently counsels employers on issues involving compliance with the ADA and accommodating disabled employees, as well as other employment related matters. Mr. Mook is a member of the Editorial Advisory Board of Bender’s Labor & Employment Bulletin and is a co-editor of the Mid-Atlantic Employment Law Letter. He is included in Best Lawyers in America (2022 ed.) for employment law.

Mr. Mook is a member of the Virginia and District of Columbia Bars, and is a member of the Labor & Employment Law Section of the District of Columbia Bar and has been a member of the Alexandria Commission on Persons with Disabilities. He earned his Juris Doctor from Yale Law School.