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Welcome to the Fall 2012 edition of the ADA Case Law Digest. The digest feature recent additions to the ADA Case Law Database. The database is a comprehensive search tool that allows the user to find significant court cases, settlement agreements, and consent decrees that help interpret the Americans with Disabilities Act. The database and the digests are produced through the collaboration of the Great Lakes ADA Center and the Southwest ADA Center.

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  VOLUME 2, ISSUE 1 FALL 2012 

Title I

A common question that the ADA Centers receive is regarding employee leave after the allotted 12 weeks under the Family Medical Leave Act (FMLA) is exhausted. In Shelton v. Bridgestone Metalpha, USA, Inc., an employee with thyroid cancer was terminated after she used up all of her FMLA leave along with the remaining absences available under her employer's attendance policy. She requested extended leave as an accommodation under the ADA which was denied and eventually she was terminated. A medical leave of absence can constitute a reasonable accommodation under appropriate circumstances unless the employer can show that it imposes an undue hardship. A leave of indefinite duration or an additional leave of absence of significant duration after substantial time has already been given is considered objectively unreasonable.

In Samper v. Providence St. Vincent Medical Center, an intensive care nurse had exceeded the amount of unplanned absences allowed under her hospital's attendance policy. The policy did not include family medical leave as part of this limit and the nurse was eventually terminated for exceeding this limit. The court recognized that regular attendance was an essential function of her position because the "at-risk patient population cries out for constant vigilance, team coordination and continuity." The hospital showed that it is very difficult to find replacement nurses, especially for unscheduled absences.

In Murphy v. Samson Resources Co. , an employee with spontaneous migraines requested and received FMLA leave but also wanted to make up her absences by working late or on the weekends. Her employer refused and eventually terminated her. The court considered the time sensitive nature of her tasks and the requirement for close supervision that was not available at late hours or on the weekends and ruled that her requested accommodation was unreasonable.

Title II

Under the ADA, state and local government licensing agencies have the obligation to not discriminate against people with disabilities in their licensing practices. However, what if they could make their licensees more accessible to people with disabilities through their licensing practices? That is, does the ADA require them to make the industry they license more accessible? That was the issue in a case we mentioned in the last digest for < a href="http://caselaw.findlaw.com/us-2nd-circuit/1604583.html"> Noel v. New York City Taxi and Limousine Commission. In New York City, only 233 of the 13,237 licensed taxicabs were wheelchair accessible and a federal district court ordered the commission to develop a comprehensive plan to remedy this disparity. Until they did so, they were ordered to issue only new licenses to accessible taxi applicants. Upon appeal, this decision has been reversed. Public agencies are not required to make the industry they license more accessible.

In a Jerry Springer moment, two tenants in public housing got into a violent dispute in Sinisgallo v. Town of Islip Housing Authority. One shot the other's cat with a BB gun which resulted in the cat owner confronting and striking the shooter. The cat owner and his living partner received an eviction notice from the housing agency and requested a probationary period as a reasonable accommodation. The court granted a preliminary injunction against the eviction process considering that tenants had not been violent with his neighbors afterwards.

In a clash between federal and state law, several states approve the use of marijuana for medicinal purposes. In California, a doctor may prescribe patients marijuana to ameliorate a range of conditions from anxiety to side effects of chemotherapy. They can then go to a dispensary to fill their prescription and these dispensaries are prevalent all over California. However, not every community is happy with their presence. In James v. City of Costa Mesa, several people sued Costa Mesa under the ADA for trying to close the dispensaries in the area. Their argument was that the city was discriminating against the people with disabilities who needed their state-approved weed. The court disagreed because the ADA does not protect people currently engaged in the illegal use of drugs. Under the federal Controlled Substances Act, marijuana is classified as a controlled drug with no acceptable medical use, and the ADA relies on this definition.

Title III

The Internet has been a heavily disputed issue under the ADA. Back in 1990 when the ADA was passed, the general public had no idea what it was and Congress did not address it. As more and more businesses sell their goods and services through their websites, several courts have disagreed on whether these websites must comply with the ADA and how. In National Association of the Deaf v. Netflix, Inc., the plaintiffs sued Netflix for failing to provide closed captioning for many of the on-demand movies available on its website. Several other services provided on the website were also inaccessible. The court ruled that the website store was covered by the ADA even though it is not a physical structure. The court also ruled that the Twenty-First Century Communication and Video Accessibility Act, which requires movie producers to caption their movies, did not preclude the plaintiffs from suing under the ADA.

Parents can be overzealous advocates especially when it comes to their children and schools. In Schneider v. Shah, a paralegal student failed her classes due to a combination of grades and exceeding the maximum number of absences allowed under the attendance policy. Her father, an attorney, sent the school a letter three days later disclosing her disability and asked for accommodations. Twenty-two days later, he filed a lawsuit. In the meantime, the school made arrangements to accommodate her, she eventually passed her classes and received her paralegal certificate three months later. However, the lawsuit still continued because the school had refused to engage in the interactive process with her father. The court ruled that nothing in the ADA requires a school to engage with the father/attorney.

Finally, the issue of competing disabilities came up when the Department of Justice reached a consent decree with a law firm in United States v. Larkin, Axelrod, Ingrassia & Tetenbaum, LLP. A client was asked to leave his service animal outside his attorney's office during their meeting because the attorney was allergic to the dog. The firm then reassigned the case to another attorney who asked the dog be left outside his office because he had a phobia of dogs. These incidents resulted in the firm paying $20,000 to the client and $5,000 to the government.



Other Disability Law Websites
These cases represent an excerpt of the additions to the database. If you would like to learn more about these cases and others, please visit the ADA Case Law Database at http://www.adacaselaw.org