Neil Zolot / medford@wickedlocal.com

Published April 5th, 2021

City officials are imposing some conditions on Verizon on installations of 5G telecommunications equipment on utility poles around the city, but will be required to approve the vast majority of the 44 applications, most of which are in Medford Square, South Medford and the Hillside area.

After hours of public testimony on the matter during a video-conference meeting Wednesday, March 31, the Ad Hoc Small Cell Committee decided to hold off on dealing with each application until April 8.

“Federal law is very strong; it prohibits municipalities, when acting as a regulatory authority, from effectively prohibiting wireless telecommunications,” Robin Stein of legal consultant KP Law told the board. “You can’t deny based on health considerations. Federal law is explicit that you can’t consider health and environmental concerns. You can impose a condition so long as that is not going to effectively prohibit their ability to install the facility and provide wireless service.”

Her advice confirmed statements made by Verizon legal representative Michael Giaimo of Robinson and Cole that the applications were “not inconsistent with federal law” and “municipalities may not decide based on health concerns.”

Some of the conditions will probably be compliance with the Americans with Disabilities Act, setbacks, prohibition of detectable noise, keeping the equipment in good order, prohibiting double poling and holding Verizon financially responsible for costs in preparing poles for installations and costs related to lighting.

Small Cell Committee Chairman and City Engineer Tim McGovern pressed for an annual maintenance schedule, to which Giaimo responded, “I don’t think we’re going to want to do that.”

He also mentioned an internal malfunction detection system. Small Cell Committee member and Director of Community Development & Energy and Environment Alicia Hunt conceded, “We’ll just have to trust it works.”

The idea of shrouding the installation was brought up. Giaimo said Verizon would ask for a waiver on that because shrouds negatively affect the system.

Read more at: https://www.wickedlocal.com/story/medford-transcript/2021/04/05/medford-officials-residents-opposed-5-g-despite-concerns-over-health/7066907002/

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Brown v. Los Angeles Unified School Dist., 2021 WL 631030 (Cal. Ct. App. 2021)

Laurie Brown, a teacher at Millikan Middle School, alleged she experienced chronic pain, which was allegedly caused by a new Wi-Fi system the school had installed.  Brown’s medical provider diagnosed her with “electromagnetic hypersensitivity sensitivity” (EHS).  Brown eventually quit, claiming she could not return to work “without being overcome with crippling pain.”  Among other things, Brown alleged discrimination based upon a physical disability, failure to accommodate her disability, and retaliation.  The trial court sustained the District’s demurrer to Brown’s complaint, but the Court of Appeal reversed, holding that Brown had sufficiently alleged a disability under the Fair Employment and Housing Act (FEHA), even though at least two other (non-California) courts have held that EHS is not a recognized disability under the federal Americans with Disabilities Act (ADA).  The Court also held that Brown had adequately alleged a cause of action for failure to provide a reasonable accommodation for a physical disability.  However, the appellate court agreed with the District that Brown had failed to allege a failure to engage in the interactive process or that any adverse action was taken against her with discriminatory or retaliatory motive – in short, there was a “disagreement between the parties as to whether the Wi-Fi was causing her disability.”

In a stunningly candid concurring opinion, Justice John Shepard Wiley Jr., expressed concern that this is the “first court in the United States of America – a nation of over 300 million people – to allow a claim that ‘Wi-Fi can make you sick.’”  Justice Wiley continued:  “The law worries about junk science in the courtroom.  One concern is that a partisan expert witness can bamboozle a jury with a commanding bearing, an engaging manner, and a theory that lacks respectable scientific support…  It does not take much experience as a trial judge in Los Angeles to realize the use of expert witnesses has run riot.”  A potential solution?  Justice Wiley suggests the use of court-appointed experts pursuant to Cal. Evid. Code §§ 730-732 – “few judges have tried this option, though, because the parties never suggest it.”

For more on the topic:

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The Federal Communications Commission (FCC) requested public input regarding radio frequency radiation (RFR) exposure limits and policies in the United States via Docket #13-84 in 2013. The earliest submission for this docket was dated June 24, 2012. As of January 21, 2020, the FCC had received 1,302 submissions for this docket.

In November 2013, the cities of Boston and Philadelphia filed a submission to the Federal Communications Commission (FCC) (Dockets #13-84 and #03-137) that accused the FCC and federal health agencies of negligence for failing to investigate whether electrosensitive persons are harmed by wireless radiation:

“The FCC admits its own lack of expertise in the field. But the overlap of federal agency responsibilities for RF radiation protection and the merely advisory status of the Radiofrequency Interagency Work Group often leaves leadership unclear and encourages a pass-the-buck attitude …”

“The 1999-2000 judicial challenge to the FCC’s 1996 rules never reached the issue of “electrosensitivity” as a cognizable disability under the Americans with Disabilities Act. (“ADA”) Here again, an agency responsible for ADA implementation acknowledges that the impairment may be disabling but has promised merely further inquiry. After more than a decade, that investigation remains unopened. The dockets here have been updated with massive additional evidence of the crippling effects of RF radiation on an admitted minority – but a suffering minority – of U.S. citizens. The FCC and its sister regulatory agencies share responsibility for adherence to the ADA and should replace promises with serious attention to a serious medical problem. This is one area where the FCC could lead in advice to electrosensitive persons about prudent avoidance.”

<snip>

The following results are based on submissions to FCC Docket #13-84 from persons who self-identified as experiencing electromagnetic sensitivity or hypersensitivity (EHS).

Read more at:

https://www.saferemr.com/2020/05/EHSsubmissionstoFCC.html?fbclid=IwAR3o6Tt3vbZnbK3rihLsQ0fX-W9fMJZOxyXjYeVd5S03TWorILQ9Vh6kDnE

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The post EMF Points of Confusion versus Fact appeared first on EMFSA.

On April 6, 2017, the Seventh Circuit affirmed a ruling by the Northern District of Illinois, Eastern Division, granting summary judgment in favor of an employer, in part, because the employee failed to present evidence that he was disabled within the meaning of the Americans with Disabilities Act (the ADA), 42 U.S.C. § 12101, Hirmiz v. New Harrison Hotel Corp., No. 16-3915, 2017 U.S. App. LEXIS 5978 (7th Cir. Apr. 6, 2017).

The pro se plaintiff, George Hirmiz, was employed by defendant, a hotel operator, as a front desk clerk. On February 24, 2015, defendant terminated plaintiff’s employment for several reasons including sleeping on the job, abandoning his post, failing to report details of an incident where a guest was hurt during a fight, and failing to contact the police at the time of the incident. See Hirmiz v. Travelodge Hotel Corp., No. 15 C 6874, 2016 U.S. Dist. LEXIS 132045 (N.D. Ill. Sept. 27, 2016). Plaintiff filed suit against defendant alleging failure to accommodate and discrimination pursuant to the ADA. (Plaintiff also filed a retaliatory discharge claim pursuant to Illinois common law which is not discussed here.)

In order to establish his claims under the ADA, the plaintiff must establish that he was disabled within the meaning of the ADA. The ADA defines a “disability” as: 1) a physical or mental impairment that substantially limits one or more major life activities; 2) a record of such impairment; or 3) an individual that is regarded as having such an impairment. The plaintiff alleged he was disabled within the meaning of the ADA because he experienced several symptoms including heavy sneezing, runny nose, headache, dizziness and numbness due to long-term exposure to electromagnetic voltage while employed by the defendant. However, the plaintiff failed to argue that his symptoms substantially limited one or more major life activity.

The district court held, and the Seventh Circuit agreed, that the plaintiff failed to present any evidence that he suffered from any “impairment” that “substantially limits” any of his “major life activities.” Plaintiff also failed to establish a record of an impairment or show he was regarded as having an impairment. As such, the court held plaintiff failed to show he was “disabled” within the meaning of the ADA and his claims were dismissed. (Note—the pro se plaintiff failed to comply with local court rules and did not file a response to defendant’s statement of undisputed material fact. Thus, the court accepted the defendant’s facts as true.)

In concluding that the plaintiff failed to show he was disabled within the meaning of the ADA, the Seventh Circuit commented briefly on electromagnetic hypersensitivity and noted there is dispute within the medical community over whether sensitivity to electromagnetic voltage is a physical disorder or psychological disorder. If psychological, the court noted the symptoms may not constitute a disorder covered by the ADA and referenced the example of fear of black cats as trivial psychological distress. The court was able to avoid determining whether electromagnetic hypersensitivity is an “impairment” by finding that the plaintiff failed to show he was substantially limited in one or more major life activities, which is required under the ADA.

The Seventh Circuit avoided making this determination for now, but whether electromagnetic hypersensitivity or “Wi-Fi Allergies” constitute a physical impairment which might be covered by the ADA is a question that might not be far off in our legal future.

Interestingly, other countries have given some weight to “Wi-Fi Allergies.” In 2011, the International Agency for Research on Cancer, a World Health Organization-affiliated body, classified electromagnetic fields as possibly carcinogenic and worthy of additional research. In 2013, a scientist in Australia was awarded workers’ compensation benefits after he made a claim for nausea, disorientation and headaches at work after being exposed to equipment that emitted electromagnetic fields. In 2015, a French court awarded a woman monthly disability payments after she claimed that Wi-Fi and cell phones made her sick. Sweden officially recognizes electromagnetic hypersensitivity as a “functional impairment” affording sufferers a range of legal protections and accommodations. In 2015, Health Canada set limits on exposure to electromagnetic radiation.

In March of 2015, a court of appeals in New Mexico dismissed a plaintiff’s case where he sought injunctive relief against a neighbor seeking to bar her from using any device that emitted electromagnetic fields because he claimed he experienced extreme electromagnetic hypersensitivity and sickness. The court dismissed his case because he did not provide qualified expert testimony regarding electromagnetic hypersensitivity. Notably, however, the plaintiff in that case claimed to have been receiving Social Security Disability since 1992 when the U.S. Social Security Administration declared him permanently and totally disabled due to chemical and electromagnetic hypersensitivity. See Firstenberg v. Monribot, 2015-NMCA-062.

Despite the lack of scientific evidence or research to support electromagnetic hypersensitivity at this time, ever-changing technology and our reliance on devices makes it easy to see how more people might develop “Wi-Fi Allergies.” Employers might begin to see requests for accommodations based on electromagnetic hypersensitivity or claims for workers’ compensation benefits where an employee claims symptoms of electromagnetic hypersensitivity from exposure at work. How far these claims will get without proper medical support is to be seen. But a word to the wise, the ADA prohibits retaliation against an employee who asserts his/her rights under the ADA, even if the underlying discrimination claim is meritless.  https://www.natlawreview.com/article/are-wi-fi-allergies-impairment-covered-ada

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