Can Judges from the Florida Supreme Court get a Reasonable Accommodation for a Disability?

By: Matthew Dietz

Chief Justice Jorge Labraga

On Monday, September 14th, Florida Supreme Court Chief Justice Jorge Labarga, 62, underwent successful surgery for kidney cancer at Shands Hospital in Gainesville. Doctors had discovered the cancer in its early stages through routine blood tests earlier this year. They advised him to have the kidney removed. Justice Labarga was expected to be hospitalized for seven days. However, after surgery, Justice Labarga began working at his job remotely, with Barbara Pariente, another cancer survivor, serving as acting chief justice during any time he is incapacitated. According to the Court, “Doctors found no signs that the cancer had spread and predict a full and quick recovery for Florida’s 56th Chief Justice and its first of Hispanic descent.”

When Justice Barbara Pariente underwent her battle with breast cancer in 2003, she had a 14-hour double mastectomy and reconstructive surgery. After choosing an aggressive treatment and chemotherapy, Justice Pariente continued to sit on the bench while she was undergoing her cancer treatment. She decided to bare her soul and her scalp from the bench when she decided that she was not going to hide the fact that she had cancer:

During Pariente’s liberating courtroom debut, sans wig, there was a Supreme Court ceremony to induct new members to The Florida Bar. In his speech, then Bar President Miles McGrane made references to heroes in the law Atticus Finch and Chesterfield Smith. And then with a nod to Justice Pariente, he said, “I am so honored and pleased that you are doing what you’re doing for your cause. You are a hero to me, and, I think, everyone here.” Clearly touched by his remarks, Pariente’s eyes glistened with tears as the spectators broke into applause.

According to Eleanor Hunter, executive director of the Florida Board of Bar Examiners, Pariente never missed an oral argument throughout her cancer treatment. She also participated in all conferences, including one by telephone and one video conference. Hunter said: “The most remarkable thing to me is while she sat at chemotherapy, she took a briefcase of her work, reading over cases and briefs, with an IV dripping in her arm.”

Justice Barbara J. Pariente

Work was not even a question for either Justice Labarga or Justice Pariente. It was what each chose to do. Last month, the DIG newsletter contained an article about the Equal Employment Opportunity Commission’s new case with DIG client Gregorio Reyes, who was fired from his job while he was recovering from prostate cancer. In all pronouncements by the Supreme Court and the press, the fact that the Justices were returning to work, and that they were able to continue their jobs with a minimal accommodation, appears merely to be an afterthought. While it may be an afterthought for the Florida Supreme Court, it is not for most employers who view cancer and chemotherapy as a reason to question an employee’s ability to work during and after cancer treatment.

Even when the prognosis is excellent, like that of Justice Labarga, some employers expect that a person diagnosed with cancer will take long absences from work or be unable to focus on job duties. The Americans with Disabilities Act protects persons who currently have cancer, or have cancer that is in remission, because they are substantially limited in the major life activity of normal cell growth or would be so limited if cancer currently in remission was to recur. (See 29 C.F.R. §§1630.2(j)(3)(iii) and 1630.2(j) (1)(vii)). However, cancer is not identical for all persons, and the symptoms and side effects depend on many factors, including the primary site of the cancer, stage of the disease, age and health of the individual, and type of treatments. The most common symptoms and side effects of cancer and/or treatment are pain, fatigue, problems related to nutrition and weight management, nausea, vomiting, hair loss, low blood counts, memory and concentration loss, depression, and respiratory problems.

If an employee reveals that he or she has or had cancer, the employer may not ask any questions about the condition, unless: the employer reasonably believes that he or she will require an accommodation to perform the job, the employer observed performance problems, and the employer reasonably believes that the problems are related to a medical condition. In any event, any inquiry or discussions should remain confidential.

For a lawyer or a judge, the accommodations necessary to do the job are relatively simple. The accommodations include working (or even appearing at hearings) from remote locations, allowance of breaks, or a rest area during the day, and time off to go for treatment or to the doctor’s office.

There are other protections that may be available, such as Family and Medical Leave Act, 29 U.S.C. § 2601, and some law firm or other state laws, which may provide medical leave for larger employers or governmental entities.

So, accommodations for a disability is readily achievable for any lawyer.

For more information, see

Questions & Answers about Cancer in the Workplace and the Americans with Disabilities Act (ADA)

Accommodation and Compliance Series: Employees with Cancer

Reasonable Accommodations for Attorneys with Disabilities, by Matthew W. Dietz

All of the history of Justice Pariente’s condition is from Jan Pudlow’s 2004 in the Florida article – Barbara J. Pariente, Chief Justice of the Florida Supreme Court
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A Note From Matthew..

  By: Matthew Dietz

 

 

July marks the 24th Anniversary of the Americans with Disabilities Act, America’s unambiguous mandate to rid this country of disability discrimination, which President George H.W. Bush declared as an obstacle for persons with disabilities to “Independence, freedom of choice, control … and the opportunity to blend fully and equally into the right mosaic of the American mainstream.” When he signed the ADA, President Bush stated – “Let the shameful wall of exclusion finally come tumbling down.”  Twenty-Four years later, the fight continues, this time for the U.S. Senate to ratify the United Nations Convention on the Rights of Persons with Disabilities, which ensures that persons with disabilities internationally have the same human rights and dignity as persons with disabilities in the United States. Martin Luther King stated, “Injustice anywhere is a threat to justice everywhere”, and as such, we will continue to fight!

 

 

Introducing Animal Partners –

A core individual freedom is a one’s natural right to make decisions affecting his or her health or body. This freedom is an integral part of the dignity and control for persons with disabilities as well. One of the major goals of the Disability Rights movement is that each person with a disability has the right to self-determination – free from the patriarchal attitudes of the “able-bodied”. This right to make medical decisions extends not only to traditional forms of medicine, but also to alternative treatments that assists a person with daily life activities — whether these activities are physical, sensory, psychological or social. More and more people with disabilities are using animal companionship and assistance to help them with their daily lives. DIG is creating a new project to address the needs of people with disabilities who would like to use service animals or emotional support animals. The project is called “Animal Partners”.

If you go to justdigit.org, and read our newsletter or look at our blog at justdigitlaw.wordpress.com, you will meet Deborah Fischer, who uses a service dog, Sorenson, to assist her due to her multiple sclerosis. You will also meet Anthony Merchante, a six year old boy, who uses a seizure alert and protect dog, Stevie. Last month’s newsletter contained the fight of U.S. Air Force veteran, Ajit Bhogaita, to keep his dog, Kane, at his home to assist him in coping with his post-traumatic stress disorder.

Using animals as a component of therapy has long been recognize to cause significant improvements in cognition, social interaction and physical skills for persons with disabilities. Not only may an animal assist in physical activity, it also builds an emotional connection between a person and an animal promotes release of the neurohormone oxytocin. Oxytocin is responsible for inducing feelings of love and trust and is strongly implicated in pair bonding. For the past few years, more and more people with disabilities have chosen to enhance their lives and their condition by using animals as components of their care and lifestyle. This ranges from the elderly person that has depression or Alzheimer’s, a veteran that suffers from PTSD, an autistic child that needs a companion animal to become socially interactive, to an epileptic person that needs a seizure alert dog.

The law may allow people to have their service or emotional support animals in many public and private areas, however, many employers, or housing providers do not understand the law and they just automatically deny people with disabilities the right to have their animals. On the other hand, people with disabilities often do not know what is required to have a service dog, and the limitations of having an emotional support dog or a service dog. “Animal Partners” will attempt to present the law and requirements in a user-friendly manner so people will understand the rights and responsibilities relating to assistance animals. “Animal Partners” has a two pronged mission.

• First, to legitimize a person with a disability’s choice to have an assistance animal and to provide information of value and tools so that a person with a disability can by empowered to make an informed choice.
• Second, to make our community to be a kind and civilized place where it is acceptable for people with disabilities to feel comfortable and welcome with their assistance animals.

We hope you friend our “Animal Partners” Facebook site, visit the webpage at justdigit.org, and sign up!

Why

“Why?” is the most common question asked when I said that I was going to  change my practice into a non-profit disability rights advocacy center. My reasons are each and every person with a disability that I have represented over the past eighteen years. With every single person, the issue was not about money, but about the dignity of being a human being, and having the same ability to enjoy life as any other person. Even when I was not successful, I was always able to give my clients the power and dignity to fight for their equality and humanity.
This is a new era where people with disabilities eschew labels and demand their rights. Those who are Deaf or who have vision impairments demand equal access to information, those with depression and anxiety demand emotional support animals, those with disabilities demand the right to have their own families
and make their own decisions regarding independent living, and those with learning disabilities demand testing and course accommodations. Disability Independence Group or DIG is an invitation for persons with disabilities to declare their independence from antiquated notions of a second class existence.
Disability Independence Group will be a center where people with disabilities can learn how to enforce their rights and a training center for future lawyers to learn how to enforce the rights of persons with disabilities. It will advocate for a definition of diversity and integration that includes persons with disabilities. DIG will be a hub for the growing internationalization of disability
rights in Central and South America. We have a big job and big dreams.