On the other hand, an employer is not required to pay the required wage to an employee in non-productive status, when the employee is non-productive at the employee’s voluntary request and convenience (e.g., touring the United States or caring for an ill relative) or because they are unable to work (e.g., maternity leave or an automobile accident that temporarily incapacitates the nonimmigrant) due to a reason that is not directly work related and required by the employer. Of course, per 20 CFR 655.731(c)(7)(ii), the employer would still have to pay the required wage if the employee’s non-productive period was subject to payment under the employer’s benefit plan or other statutes such as the Family and Medical Leave Act (FMLA) (29 U.S.C. 2601 et seq.) or the Americans with Disabilities Act (ADA) (42 U.S.C. 12101 et seq.).2. Can an employer furlough, bench, or otherwise render an H-1B employee non-productive and stop offering the required wage if the employee is not able to work from home during a COVID-19 pandemic initiated shelter in place order from federal, state, or municipal government authorities?Generally, this is not permissible given that the conditions are not created by the employee.

100(b).In passing the American with Disabilities Act (“ADA”), Congress found in 42 USCS § 12101 (1) (a) that “physical or mental disabilities in no way diminish a person's right to fully participate in all aspects of society…” A Court is public entity under 42 U.S. Code § 12131.The ADA is a comprehensive remedial statute designed “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”

Under the ADA, employers are prohibited from discriminating against employees on the basis of disability, and must provide reasonable accommodations to disabled employees. 42 U.S.C. § 12101, et. seq. The ADA defines disability as (A) a physical or mental impairment that substantially limits one or more major life activities; (B) a record of such an impairment; or (C) being regarded as having such an impairment.

Today, the Supreme Court of the United States issued one decision:Acheson Hotels, LLC v. Laufer, No. 22-429: Deborah Laufer sued hundreds of hotels under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq., for failing to state on their websites whether they have accessible rooms for the disabled. Laufer’s suits “singlehandedly generated a circuit split” on a plaintiff’s standing to sue a hotel in federal court when the plaintiff has no plans to stay at or book a room with the hotel. The Second, Fifth, and Tenth Circuits held that Laufer lacked standing to sue in federal court because she was not injured by the absence of information about hotel rooms she had no plans to reserve. The First, Fourth, and Eleventh Circuit held that Laufer did have standing. The Court took the case from the First Circuit to resolve the split. After the Court granted review, a federal district court suspended Laufer’s lawyer from the practice of law for defrauding hotels by lying in fee petitions and in settlement negotiations. Laufer voluntarily dismissed her pending suits with prejudice and represented to the Court that she would not file any other cases. Laufer also filed a suggestion of mootness

was free to do so, it did not want to create a circuit split. The United States Supreme Court denied a petition for certiorari from the Tenth Circuit’s en banc ruling.5ImplicationsWith the Eleventh Circuit’s ruling in Beasley, there is now a clear circuit split on the issue whether a plaintiff asserting a failure to accommodate claim under the ADA must also establish that they suffered an adverse employment action as a result of the failure to accommodate. So, if the Beasley decision stands, plaintiffs in Alabama, Georgia, and Florida will be required to establish an additional element of an ADA failure-to-accommodate claim that plaintiffs in the majority of other circuits are not required to establish. Employers should continue to monitor this legal issue as the narrow 7-6 en banc decision in Exby-Stolley and the circuit split created by Beasley suggests that the United States Supreme Court may take up the issue.1 No. 21-13083, --- F.4th --, 2023 WL 3608276 (11th Cir. May 24, 2023).2 42 U.S.C. § 12101–12213.3 979 F.3d 784 (10th Cir. 2020) (en banc).4 Brief for the EEOC as Amicus Curiae, Beasley v. O’Reilly Auto Parts, No. 21-13083 (11th Cir. May 24, 2023), https://www.eeoc.gov/sites/default/files/2021-12/Beasley%20v%20O%27Reilly%20Auto%20Parts%2011C%20am-br%2011-21%20ccs_0.html.5 Bd. of Cty. Comm’rs of Weld Cty., Col. v. Exby-Stolley, 141 S. Ct. 2858 (June 28, 2021).

e granted Perez all of his requested equitable relief. Following the settlement, Perez filed suit in the Western District of Michigan, seeking monetary damages under the ADA.The district raised IDEA’s Section §1415(l), alleging that Perez was barred from bringing his ADA claim without first exhausting administrative remedies under IDEA. The district court and Sixth Circuit agreed with this view. The Sixth Circuit relied on the Supreme Court’s decision in Fry v. Napoleon Community Schools to deny Perez’s relief, but the Supreme Court noted that the case at bar presented a slightly different question that the Fry court did not address.The Supreme Court Reverses the Sixth Circuit’s DecisionIn reversing and remanding the Sixth Circuit’s decision, the Supreme Court highlighted two clauses within Section §1415(l):“Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C. 12101 et seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C. 790 et seq.], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.”The language above points to two central takeaways from the Court’s decision:IDEA Should Not Be Read to Restrict Available Remedies Under Other LawsFirst, the Court highlighted that IDEA should not be read to restrict or limit “remedies” available under other federal laws, including the ADA. “Remedy” according to the Court, is defined as “the means of enforcing a right,” such as money damages under the ADA.Exhaustion Does Not Apply to All Suits Seeking Relief – Only Those Seeking Relief Also Available Under IDEASecond, the Court weighed the differing views of t

the harm, the likelihood that potential harm will occur, and the imminence of potential harm.Where the assessment reveals that the employee poses a direct threat, before excluding the employee from the job, the employer must determine whether any reasonable accommodation reduces or eliminates the risk.E. Conclusion.The Guidance provides a good overview of the issues that come with assessing and addressing disabilities in the workplace. The EEOC includes 28 examples of factual scenarios that accompany the question-and-answer format. As we move into a post-pandemic time period in which disability-related charges and claims are on the rise, employers are encouraged to review the Guidance as a refresher of their legal obligations under the ADA. “Hearing Disabilities in the Workplace and the Americans with Disabilities Act,” January 24, 2023, (the “Guidance”) www.eeoc.gov/laws/guidance/hearing-disabilities-workplace-and-americans-disabilities-act#. Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. Guidance, p. 6 Guidance, p. 7 Guidance, p. 8 Guidance, p. 9 Guidance, p. 20 Guidance, pp. 12 – 15 Guidance, p. 16 Guidance, p. 17 Guidance, p. 16 Guidance, p. 16 - 17 Guidance, p. 19 Guidance, p. 18 The EEOC addresses undue hardship in its Enforcement Guidance “Reasonable Accommodations and Undue Hardship Under the ADA,” . Guidance, p. 18. Guidance, p. 22 Guidance, p. 22, citing 29 C.F.R. § 1630.2(r).Id.

During such time, she experienced delays in her hormonal medical treatment for gender dysphoria and was intentionally misgendered and harassed by prison deputies and other inmates. Following her release, she filed a §1983 lawsuit against the Sheriff of Fairfax County, a deputy, and the nurse who delayed her hormonal treatment, alleging violations of the ADA, 42 U.S.C. §12101 et seq., the Rehabilitation Act, 29 U.S.C. §701, et seq., the U.S. Constitution, and state law.On appeal, Williams argued that (1) gender dysphoria categorically was not a gender identity disorder, and, therefore, the exclusion for gender identity disorders under the ADA was inapplicable and (2) if gender dysphoria is not distinct from gender identity disorders under the ADA, then the court should still reverse the dismissal because gender dysphoria “falls within the ADA’s safe harbor for ‘gender identity disorders . . . resulting from physical impairments.’”The court examined the definition of “gender dysphoria” from the Fifth Edition Diagnostic and Statistical Manual of Mental Disorders (DSM-5), noting that the American Psychiatric Association (APA) had removed “gender identify disorders” in 2013 from DSM-5 and added a diagnosis of “gender dysphoria” which did not exist as a diagnosis in 1990 – the year the ADA was enacted.

Her supervisor understood Parker’s statements to be admissions and contacted HR, recommending termination. After receiving approval from HR, the supervisor informed Parker that her employment with the company was being terminated.After her termination, Parker filed a charge with the Equal Employment Opportunity Commission (“EEOC”), claiming that she had been discriminated against on the basis of her disability. Parker then sued her employer, alleging she had experienced employment discrimination and that her termination was an act of retaliation due to her request for a reasonable accommodation, in violation of the American with Disabilities Act (“ADA”), 42 U.S. C. § 12101. [Fun fact, the ADA was enacted into law 32 years ago this week!]The Court’s DecisionA district court granted summary judgment in Brooks Life Science, Inc.’s favor, and Parker appealed the decision. After hearing her case, the U.S. Court of Appeals for the Seventh Circuit affirmed the lower court’s decision.

See Mental Health American, COVID-19 and mental Health: A Growing Crisis (2021), https://mhanational.org/sites/default/files/Spotlight%202021%20-%20COVID- 19%20and%20Mental%20Health.pdf. 42 U.S.C. § 12101. 42 U.S.C. § 12112, 12202; see, e.g., Fox v. Costco Wholesale Corp. , 918 F.3d 65, 69 (2d Cir. 2019). 42 U.S.C. § 12111(8).