Dallas, TexasIn a decision impacting the interactive process, the Northern District of Texas held in EEOC v. Methodist Hospitals of Dallas, No. 3:2015-cv-03104 (N.D. Tex. Mar. 9, 2017), that employers do not violate the Americans with Disabilities Act (“ADA”) by requiring individuals with disabilities that need reassignment as a reasonable accommodation to compete for vacant positions.

Plaintiff, a former patient care technician, requested an accommodation after an on-the-job injury precluded her from performing the required duties of lifting and transporting patients. Though she met the minimum qualifications for two vacant positions, she was not chosen for the positions and was terminated. The EEOC alleged that the Hospital maintained an unlawful policy by requiring individuals with disabilities to compete for vacant positions where the individual was qualified for the position. The Hospital argued that the EEOC was attempting to mandate additional affirmative action not required by the ADA by asserting that the employer could not choose the most qualified applicant for a vacant position.

Central to the issue in this case, the ADA lists reassignment to a vacant position as a form of reasonable accommodation. 42 U.S.C. § 12111(9). The EEOC guidance on reasonable accommodation also states that an employee does not need to be the best qualified individual for the position in order to be reassigned to a vacant position. However, the circuits have split regarding whether an employer violates the ADA by requiring individuals with disabilities to compete with other candidates for reassignment to a vacant position. Although the Fifth Circuit has not directly addressed this issue, the court reviewed the authority in the Fifth Circuit regarding affirmative action for reassignment and determined that the Fifth Circuit would likely hold, similar to the Eleventh and Eighth Circuits, that the ADA does not require preferential treatment for reassignment and merely requires employers to allow individuals with disabilities to compete equally for vacant positions.  The court declined to follow contrary precedent in the Tenth and D.C. Circuits.

Employers should review their policies regarding reassignment for employees requesting an accommodation due to a disability and, as there is currently a circuit split, review the applicable law in their jurisdiction to ensure their policies are lawful. When an employee seeks reassignment to a vacant position as a reasonable accommodation, employers should work with counsel to determine whether they can require that employee to compete with other applicants for that position.

As part of a flurry of activity in the final days of the Obama Administration, the U.S. the Architectural and Transportation Barriers Compliance Board (the “Access Board”) has finally announced the release of its Accessibility Standards for Medical Diagnostic Equipment (the “MDE Standards”).  Published in the Federal Register on Monday, January 9, 2017, the MDE Standards are a set of design criteria intended to provide individuals with disabilities access to medical diagnostic equipment such as examination tables and chairs (including those used for dental or optical exams), weight scales, radiological equipment, mammography equipment and other equipment used by health professionals for diagnostic purposes.  (The Access Board was established in 1973 to develop and maintain standards for accessible design in the built environment, transit vehicles and systems, telecommunications equipment and electronic and information technology. It also functions as a coordinator among federal agencies.).  It is important to note that at this time the MDE Standards are not technically binding on health care providers or medical equipment manufacturers and do not have the force of law until they are formally adopted by government agencies such as the U.S. Department of Justice and U.S. Department of Health and Human Services.

The MDE Standards were prepared by the Access Board’s 24 member MDE Accessibility Standards Advisory Committee, comprised of representatives from disability groups, equipment manufacturers, heath care providers, and other standard-setting organizations, and incorporates data based on research studies as well as comments received during several public comment periods.

A link to the final MDE Standards is provided here:

Effective Date and Current Enforcement

The final rule is set to become effective Wednesday, February 8, 2017.  However, as noted above, as these Standards have not yet been adopted by any Federal enforcing authorities, the MDE Standards do not currently impose any mandatory requirements on health care providers or medical device manufacturers.  (Moreover, it is worth noting on January 20, 2017, White House Chief of Staff Reince Priebus issued a memorandum from the White House to the heads of executive departments and agencies calling for a sixty (60) day postponement of the effective date of regulations that have been published in the Federal Registry but not yet taken effect.  Therefore, this date may yet be delayed.)

Notwithstanding, during the Access Board’s briefing held on Tuesday, January 10, 2017, the MDE Accessibility Standards Advisory Committee noted that its mission was to develop technical accessibility requirements that would be adopted by Federal enforcing authorities (such as the DOJ, FDA, HHS, and VA), at which point health care providers subject to their jurisdiction will be required to acquire accessible medical diagnostic equipment that complies with the MDE Standards.  Until then, the Access Board strongly recommends that health care providers incorporate the MDE Standards as part of its new equipment procurement policy.  (And plaintiff’s counsel and disability rights advocacy groups bringing lawsuits against health care providers under accessibility laws are likely to rely on the MDE Standards to establish their view of what constitutes appropriate accessible medical equipment.)

Scoping Requirements

It should be noted that the current version of the MDE Standards provide MDE technical requirements only.  As stated in the Scoping section of the MDE Standards (Chapter 2), “The enforcing authority shall specify the number and type of diagnostic equipment that are required to comply with the MDE Standards”.

We will continue to provide updates as enforcing authorities adopt the MDE Standards.

Employers Under the Microscope: Is Change on the Horizon?

When: Tuesday, October 18, 2016 8:00 a.m. – 4:00 p.m.

Where: New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

Epstein Becker Green’s Annual Workforce Management Briefing will focus on the latest developments in labor and employment law, including:

  • Latest Developments from the NLRB
  • Attracting and Retaining a Diverse Workforce
  • ADA Website Compliance
  • Trade Secrets and Non-Competes
  • Managing and Administering Leave Policies
  • New Overtime Rules
  • Workplace Violence and Active-Shooter Situations
  • Recordings in the Workplace
  • Instilling Corporate Ethics

This year, we welcome Marc Freedman and Jim Plunkett from the U.S. Chamber of Commerce. Marc and Jim will speak at the first plenary session on the latest developments in Washington, D.C., that impact employers nationwide.

We are also excited to have Dr. David Weil, Administrator of the U.S. Department of Labor’s Wage and Hour Division, serve as the guest speaker at the second plenary session. David will discuss the areas on which the Wage and Hour Division is focusing, including the new overtime rules.

In addition to workshop sessions led by attorneys at Epstein Becker Green – including some contributors to this blog! – we are also looking forward to hearing from our keynote speaker, Former New York City Police Commissioner William J. Bratton.

View the full briefing agenda here.

Visit the briefing website for more information and to register, and contact Sylwia Faszczewska or Elizabeth Gannon with questions. Seating is limited.

On August 29, 2016, the EEOC issued its final Enforcement Guidance on Retaliation and Related Issues (Guidance) to replace its 1998 Compliance Manual section on retaliation, including tips on ADA interference. The Guidance reflects the Commission’s consideration of feedback received on the proposal from about 60 organizations and individuals following a 30-day public input period that ended February 24, 2016. The changes in the Guidance are in line with the EEOC’s efforts to broaden the conduct that would be deemed retaliatory as well as the concept of causation.

Along with the Guidance, the EEOC has issued two accompanying documents: a question-and-answer publication that summarizes the Guidance, and a short Small Business Fact Sheet that condenses the major points in the Guidance. The Guidance also provides “boxed” examples of actual and perceived retaliation that will be of great help to employers and employees.

The Guidance addresses retaliation under each of the statutes enforced by EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA).

Since 1998, the last time the EEOC issued a formal resource document on retaliation, the Supreme Court and the lower courts have issued numerous significant rulings regarding employment-related retaliation. Further, the percentage of EEOC charges alleging retaliation has essentially doubled (now nearly 45% of all charges). Retaliation is now the most frequently alleged basis of discrimination in all sectors, including the federal government workforce.

The guidance also addresses the interference provision under the Americans with Disabilities Act (ADA), which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights. The EEOC considers the scope of this separate interference provision broader than the anti-retaliation provision under the ADA.

In preparing the Guidance, the Commission analyzed courts’ interpretation and application of the law to specific facts, noting that, regarding many retaliation issues, the lower courts have been uniform in their interpretations of the relevant statutes. Where the Commission agreed with those interpretations, the Guidance explains the law on such issues with concrete examples. The Commission noted that there are cases where the lower courts have not consistently applied the law, or the EEOC’s interpretation of the law differs. In those instances, the Guidance sets forth the EEOC’s position and explains its analysis.

Elements of a Claim. The Guidance does not change the three well-established elements of a retaliation claim and leaves little doubt that the EEOC takes a broad view when defining each element:

  1. An employee’s participation in a protected activity, generally a complaint of discrimination or harassment.
  2. A materially adverse action taken by the employer/manager against the employee.
  3. A causal connection between the protected activity and adverse action.

The small business fact sheet provides a list of actions taken by applicants and employees that are protected from retaliation:

  • taking part in an internal or external investigation of employment discrimination, including harassment;
  • filing or being a witness in a charge, complaint, or lawsuit alleging discrimination;
  • communicating with a supervisor or manager about employment discrimination, including harassment;
  • answering questions during an employer investigation of alleged harassment;
  • refusing to follow orders that would result in discrimination;
  • resisting sexual advances, or intervening to protect others;
  • reporting an instance of harassment to a supervisor;
  • requesting accommodation of a disability or for a religious practice; or
  • asking managers or coworkers about salary information to uncover potentially discriminatory wages.

Protected Activity. In the Commission’s view, playing any role in an internal investigation (even in support of the employer) should be deemed to constitute protected participation. For example, an employee can issue a direct complaint (“participation”) or engage in “protected opposition” by communicating explicitly or implicitly opposition to perceived employment discrimination. According to the EEOC, an employee may make a broad or ambiguous complaint of unfair treatment because they may not know the specific requirements of the anti-discrimination laws and such communication would be considered protected opposition if the complaint would reasonably have been interpreted as opposition to employment discrimination.

While the Guidance states that the manner of opposition must be reasonable, the Guidance points out that the scope of the opposition clause is not limited to complaints made to the employer directly, and may include complaints made to coworkers, an attorney, others outside the company, or even publicly. According to the EEOC, employees’ complaints or opposition activities will be protected as long as their actions are based on reasonable, good faith that their assertions are accurate. Nonetheless, opposition to perceive discrimination “does not serve as a license for the employee to neglect job duties.”

Adverse Action. The Guidance seeks to expand the definition of “adverse action” to include activity that could be reasonably likely to deter protected activity even if it has no tangible effect on a person’s employment. According to the EEOC, adverse actions can be activities that are not work-related, or take place outside of work, and may even be taken against a third party who is closely linked to a complaining employee.

Causal Connection. The Guidance also expands what constitutes a causal connection between a protected activity and adverse action. Under the Commission’s interpretation of the “but-for” causation standard articulated in University of Texas Southwest Medical Center v. Nassar, that there can be multiple “but-for” causes, and retaliation need only be one of those but-for causes in order for the employee to prevail. Moreover, citing a Seventh Circuit decision (Ortiz v. Werner Enters., Inc.), the Guidance notes that causal connection may be established by combining different pieces of circumstantial evidence into a “convincing mosaic” showing retaliatory intent. Citing a decision where a termination that occurred five years after an employee filed a discrimination lawsuit defeated summary judgment, the Commission noted that it may go years back into a person’s employment history to find evidence of either a protected activity or an adverse action.

Guidance for Employers. The Commission includes a section in the Guidance on “promising practices” that it suggests may help reduce the risk of retaliation violations. While adhering to these practices is not a safe harbor, employers should take note of the list provided by the EEOC:

  • Including clear anti-retaliation language in written employment policies that provide practical guidance on what retaliation is and how it is avoided, with examples of conduct that managers, supervisors, and decision makers may not realize are actionable;
  • Taking proactive steps for avoiding actual or perceived retaliation, including practical guidance on interactions by managers and supervisors with employees who have lodged discrimination allegations against them;
  • Instituting a reporting mechanism for employee concerns about retaliation, including access to a mechanism for informal resolution; and
  • Providing a clear explanation to employees that retaliation can be subject to discipline, up to and including termination;
  • Providing all parties and witnesses to an alleged act of discrimination with information about how to avoid engaging in retaliation, and how to report alleged retaliation; and
  • Ensuring that someone with special knowledge of EEO guidance reviews proposed employment actions to ensure they are based on legitimate, non-discriminatory, non-retaliatory reasons.
Nathaniel M. Glasser
Nathaniel M. Glasser

On July 18, 2016, the final rule implementing Section 1557 of the Affordable Care Act (“ACA”) went into effect.   Section 1557 prohibits health care providers and other covered entities from refusing to treat individuals or otherwise discriminating on the basis of race, color, national origin, sex, age, or disability in any health program or activity that receives federal financial assistance or is administered by an executive agency.

While the rule does not apply to employment, it derives many of its standards from existing federal civil rights laws and the federal government’s current interpretations of those laws.  Covered entities (which include, for example, hospitals, health clinics, health insurance programs, community health practices, physician’s practices, and home health care agencies) should be particularly aware of the protections granted to individuals with these protected characteristics:

  • Sex – Under the rule, prohibited sex discrimination includes differential treatment based upon pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical conditions, sex stereotyping and gender identity. Covered entities should be particularly aware that they must treat individuals consistent with their gender identity; they cannot deny or limit sex-specific health care just because the individual seeking such services identifies as belonging to another gender; and they cannot categorically exclude coverage for health care services related to gender transition.
  • National Origin – Covered entities must take “reasonable steps” – which may include providing language assistance services such as oral language assistance or written translation – to provide “meaningful access” to individuals with limited English proficiency.
  • Disability – Covered entities must take “appropriate steps” to ensure that communications with individuals with disabilities are as effective as communications with others; make all programs provided through electronic and information technology accessible, unless doing so would impose financial or administrative burdens or fundamentally alter the program; and, in most instances, comply with the 2010 Americans with Disabilities Act Standards for Accessible Design when constructing or altering physical facilities.

Now that the final rule has gone into effect, a covered entity has 90 days to post various notices for beneficiaries, enrollees, applicants, and members of the public.  The primary notice requires the covered entity to state its compliance with Section 1557 and the availability of the various accommodations under the rule.  The Director of the Office for Civil Rights of the U.S. Department of Health and Human Services has made available a sample notice that covers the information required by this notice, but covered entities are advised to work with counsel to ensure they are in compliance with the rule.  In addition, covered entities must post a nondiscrimination statement, and any tagline (i.e., short statement indicating the availability of language assistance services) must be posted in at least the top 15 languages spoken by individuals with limited English proficiency of the relevant state(s) (sample translated resources may be found here).  Again, covered entities are advised to work with counsel to ensure compliance with these notice and posting requirements.

Our colleagues Joshua Stein, co-chair of Epstein Becker Green’s ADA and Public Accommodations Group, and Stephen Strobach, Accessibility Specialist, have a post on the Retail Labor and Employment Law blog that will be of interest to many of our readers in the health care industry:  “DOJ Refreshes Its Efforts to Promulgate Title II Website Accessibility Regulations and Other Accessible Technology Updates – What Does It All Suggest for Businesses?”

Following is an excerpt:

On April 28, 2016, the U.S. Department of Justice, Civil Rights Division, withdrew its Notice of Proposed Rulemaking (NPRM) titled Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities.  This original initiative, which was commenced at the 20th Anniversary of the ADA in 2010, was expected to result in a final NPRM setting forth website accessibility regulations for state and local government entities later this year. Instead, citing a need to address the evolution and enhancement of technology (both with respect to web design and assistive technology for individuals with disabilities) and to collect more information on the costs and benefits associated with making websites accessible, DOJ “refreshed” its regulatory process and, instead, on May 9, 2016, published a Supplemental Notice of Proposed Rulemaking (SNPRM) in the federal register. …

The questions posed in the SNPRM indicate that DOJ is considering many of the issues that Title III businesses have been forced to grapple with on their own in the face of the recent wave of website accessibility demand letters and lawsuits commenced on behalf of private plaintiffs and advocacy groups.  It would be a positive development for any eventual government regulations to clearly speak to these issues.  Conversely, it may be even longer before we see final regulations for Title III entities. …

While most current settlement agreements regarding website accessibility focus on desktop websites, many businesses are anticipating that the next target for plaintiffs and advocacy groups will be their mobile websites and applications.  Such concern is well founded as recent DOJ settlement agreements addressing accessible technology have included modifications to both desktop websites and mobile applications.

Read the full post here.

Our colleague Frank C. Morris, Jr., attorney at Epstein Becker Green, has a post on the Financial Services Employment Law blog that will be of interest to many of our readers in the health care industry: “New Online Recruiting Accessibility Tool Could Help Forestall ADA Claims by Applicants With Disabilities.”

Following is an excerpt:

In recent years, employers have increasingly turned to web based recruiting technologies and online applications. For some potential job applicants, including individuals with disabilities, such as those who are blind or have low vision, online technologies for seeking positions can prove problematic. For example, some recruiting technologies and web-based job applications may not work for individuals with disabilities who use screen readers to access information on the web. The U.S. Department of Labor’s Office of Disability Employment Policy (ODEP) recently announced the launch of “TalentWorks.”

Read the full post here.

Our colleague Joshua A. Stein has a Retail Labor and Employment Law Blog post that will be of interest to many of our health industry readers: “Defending Against Website Accessibility Claims: Recent Decisions Suggest the Primary Jurisdiction Doctrine Is Unlikely to Serve As Businesses’ Silver Bullet.”

Following is an excerpt:

For businesses hoping to identify an avenue to quickly and definitively defeat the recent deluge of website accessibility claims brought by industrious plaintiff’s firms, advocacy groups, and government regulators in the initial stages of litigation, recent news out of the District of Massachusetts – rejecting technical/jurisdictional arguments raised by Harvard University and the Massachusetts Institute of Technology – provides the latest roadblock. …

These recent decisions reveal a reluctance among the courts to dismiss website accessibility actions on technical/jurisdictional grounds.  Taken along with the expanding number of jurisdictions who subscribe to legal theories accepting that Title III covers website accessibility (whether adopting a nexus theory or broadly interpreting the spirit and purpose of the ADA) and it is becoming increasingly clear that many businesses will have a difficult time ridding themselves of website accessibility claims in the early stages of litigation.  Of course, these decisions have been quick to note they do not foreclose a variety of potentially successful defenses that may be asserted later in the litigation – e.g., undue burden, fundamental alteration, and the provision of equivalent/alternative means of access.  While, to date, the existing website accessibility case law has not focused on when these defenses might prevail, with the recent proliferation of website accessibility demand letters and litigation, businesses should soon find themselves with greater guidance from the courts.  In the interim, the best way to guard against potential website accessibility claims continues to be to take prophylactic measures to address compliance before you receive a demand letter, complaint, or notice of investigation.

Read the full post here.

Our colleague Frank C. Morris, Jr., a Member of the Firm in the Litigation and Employee Benefits practices, in the firm’s Washington, DC, office, was quoted in “Retaliation, ADA Charges Rise” by Allen Smith.  The article discusses the uptick in retaliation charges which have been filed and includes tips for employers on how to reduce the likelihood that they will get hit with those types of charges.

Following is an excerpt:

ADA cases today are more often about what took place in the interactive process for identifying a reasonable accommodation than about whether a disability is covered by the law. So, employers should have protocols in place on how to respond to accommodation requests and should document those efforts. This is “incredibly important” if there is litigation, Morris said.

If there is an agreement on an accommodation, put it in writing and have the employee sign the document, he recommended.

Remember that under the ADA, the accommodation obligation is ongoing. “Just because you’d done everything right in 2015 doesn’t mean you don’t need to do everything right in 2016,” he said. Things change, and the employer should be ready to start the accommodation conversation on fresh footing if the employee requests a new accommodation.

The last year has seen a flurry of lawsuits and demand letters to health care and other companies, and even a variety of nonprofits, alleging that those entities have websites that are not accessible to those who are blind or have low vision and thus allegedly violate the Americans With Disabilities Act (ADA).  The U.S. Department of Health and Human Services’(HHS) Office for Civil Rights (OCR) enforces nondiscrimination and accommodation obligations as to health care entities providing services to Medicare and Medicaid recipients with disabilities.  In an ironic twist, the National Federation of the Blind has brought suit in U.S. District Court, District of Massachusetts, alleging that HHS’s sub-agency, the Centers for Medicare and Medicaid Services (CMS) and its CMS subcontractors, have systemically violated the civil rights of blind Medicare recipients.

The purpose of the lawsuit, entitled Figueroa v Burwell (PDF), is stated to be “to require HHS to provide blind individuals meaningful and equally effective access to their Medicare information, as required by Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794” (Rehab Act).  (The Rehab Act is the predecessor to, and similar to, the ADA, but applies to the government and federal contractors and financial aid recipients.)  The suit notes that CMS is the largest single payor for health care in the country providing coverage to nearly 90 million persons through Medicare, Medicaid and the State Children’s Health Insurance Program.

The suit claims that CMS regularly communicates information to blind persons using inaccessible electronic formats and print.  By doing so, the suit alleges, blind beneficiaries have faced loss of benefits and health care disruption.  The suit also claims that, in response to Section 504 complaints filed in 2011 and 2012 with the OCR under Section 504 of the Rehab Act, CMS had entered into an agreement entitled the “Commitment to Action to Resolve DREDF Section 504 Complaints.”  The Commitment set forth a time period within which CMS was to take specified actions to provide effective communications for individuals with disabilities consistent with Section 504.  Pursuant to the agreement, CMS allegedly was required to complete a “Long Term Action Plan” by April 15, 2015, to provide effective cross disability communication access and appropriate auxiliary aids and services to CMS beneficiaries and consumers.  The suit alleges that no such action plan was provided.

The suit is a good reminder to health care companies that they should consider whether their websites are accessible to blind and low vision individuals.  It is entirely possible that the suit against CMS will cause it, or the OCR, to take an interest in the accessibility of the websites and the auxiliary aids and services used by health care providers who serve Medicare & Medicaid beneficiaries.  It is an apt time for health care entities to consider having the accessibility of their websites and auxiliary aids and services reviewed with the assistance of counsel to provide legal advice on ADA and Rehab Act issues and to maximize the potential attorney-client privilege connected to such a review.  This is the approach that many entities have taken with us.