Tag: ADA

Do Your Employees Know that EEO is the Law?

Who is responsible for making employees aware of their rights under various federal equal employment opportunity laws? Employers, that’s who.

Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) require covered employers to post notices describing the applicable provisions of each law in a conspicuous, prominent and accessible place. Covered employers are generally those having fifteen or more employees in the current or preceding calendar year.

Employers can satisfy their legal obligation to provide the required notices by posting the Equal Employment Opportunity Commission’s “EEO is the Law” poster. This poster summarizes the laws and explains how employees or applicants can file a complaint if they believe they have been the victim of discrimination.

The poster should be placed in a conspicuous location in the workplace where notices to applicants and employees are customarily posted. The EEOC also encourages employers to post the electronic notice on their internal web sites in a conspicuous location. But employers should note that in most cases, electronic posting supplements but does not independently fulfill an employer’s basic obligation to physically post the required information in its workplaces.

The failure to post the required notice is punishable by a fine. Federal agencies are required to annually adjust the maximum penalty for inflation. In 2016, the maximum penalty was increased from $210 to $525.

As of April 22, 2019, the maximum penalty for failing to post the required notice is $559 for each separate offense. But, let’s be honest. No employer should ever have to pay a fine because it’s just too easy to satisfy your the posting requirements.

Step 1:  Download the “EEO is the Law” poster. It’s free!
Step 2:  Print the poster.
Step 3:  Post the poster.

If you haven’t done it yet, do it now.

Does the Americans with Disabilities Act Apply to Your Website?

A surge in lawsuits has businesses asking about website accessibility requirements under the Americans with Disabilities Act, but there are few answers. Figuring out how websites fit into a law that predates the Internet has proved challenging. Courts are divided and specific regulations don’t exist. However, businesses can use the rapidly developing body of case law as a tool to better understand which websites may be subject to Title III of the ADA.

Is your business a “public accommodation” under Title III of the ADA?

Title III generally prohibits places of public accommodation from discriminating on the basis of disability. Public accommodations include various private entities that affect commerce, like restaurants, bars, hotels, theaters, retail and grocery stores, banks, doctors’ offices and shopping centers. Businesses should consult an attorney to determine Title III’s applicability.

Does the ADA apply to your website?

For web-based businesses, it could depend on your location. Courts are split on whether the ADA applies to websites that are not connected to a physical place. Some apply the ADA regardless of any physical location, while others require a sufficient connection (nexus) between the website and an actual physical place. An attorney should be consulted to determine how the law is interpreted in a specific jurisdiction.

For brick-and-mortar businesses, the Title III of ADA may apply if there is a sufficient connection between a business’s website and its physical location. What is a sufficient connection? Instead of applying a well-established, universal test (there isn’t one), courts consider various factors to find a connection.

  • Does the website provide more than basic information about a physical location?
  • Is the website heavily integrated with a physical location?
  • Does the website operate as a gateway to a physical location?
  • Does the website offer services relative to a physical location?
  • Are consumers required to use the website to access a physical location?

Providing basic information online may not be enough, but case law suggests that as integration, functionality and interactivity increase, so too does the likelihood of finding a sufficient connection under the ADA. For example, can consumers use the website to:

  • find locations?
  • view inventory (information, descriptions, images, etc.)?
  • place orders or pre-orders?
  • fill prescriptions?
  • purchase gift cards?
  • learn about sales or promotions?
  • obtain discount codes?
  • sign-up for member rewards programs?
  • manage store accounts?

So, at what point does a website become sufficiently connected for the ADA to apply? It’s too soon to know where the final line will be drawn, but it’s probably safe to assume that each “Yes” brings you one step closer.

Did You Know…. the Americans with Disabilities Act Applies to Websites?

Businesses are increasingly being sued under the Americans with Disabilities Act for operating websites that are not accessible to people with disabilities. Website accessibility case filings nearly tripled from 2017 to 2018. What started as a spike is now looking like a trend. And, since most businesses have websites, most businesses should be concerned.

Title III of the ADA generally prohibits places of public accommodation from discriminating on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations they provide. The ADA defines “public accommodation” to include various private entities that affect commerce, like restaurants, bars, hotels, theaters, banks, doctors’ offices, pharmacies, retail stores, grocery stores and shopping centers.

The ADA does not specifically address website accessibility because the Internet was in its infancy when the law was enacted in 1990. Nevertheless, the Department of Justice Civil Rights Division, which enforces Title III, has repeatedly taken the position that Title III applies to websites of public accommodations. Courts, however, are split on when a website is considered a place of public accommodation that is subject to Title III.

Some courts hold that Title III can apply to websites regardless of any connection to a physical place. Others, however, will not apply Title III without some connection between the website and a physical place. A connection that exists when a website is heavily integrated with and operates as a gateway to physical place.

Domino’s Pizza, for example, let people place orders for pick-up and delivery through its website and app. This was a sufficient connection to apply Title III because the website and app connected customers and facilitated access to the good and services available at Domino’s physical restaurants. The required connection may also be found if a website lets users:

  • locate stores;
  • view inventories (information, descriptions, images, etc.);
  • place orders or pre-orders;
  • purchase gift cards;
  • learn about sales or promotions;
  • obtain discount codes;
  • sign-up for member rewards programs;
  • manage store accounts; or
  • interact with pharmacist or fill prescriptions.

It’s difficult to predict what other factors or features courts may consider when deciding whether a website must comply with the ADA because the law is still evolving. If the ADA does apply, how do businesses comply? Courts often refer to the Web Content Accessibility Guidelines (WCAG), which are private industry standards for website accessibility that have been adopted by other federal agencies. Unfortunately, the DOJ has yet to adopt these or any other guidelines for website and app accessibility under Title III of the ADA.

As a result, businesses have been left to navigate the ADA’s website accessibility requirements with little guidance. A lack of clarity has left many businesses exposed to a surge in lawsuits that is no doubt fueled by the current state of uncertainty.

Is That REALLY a Service Animal?

Are you ready to RRRUUMMMBLE? In this corner, we have a “No Pets Allowed” policy. And, in this corner, we have a patron with a service animal. Who wins? The answer is important because a number of laws protect individuals with disabilities, including the Americans with Disabilities Act. To avoid costly violations, businesses (and their employees!) need to know how to deal with service animals.

Title III of the ADA generally prohibits disability discrimination by public accommodations. ADA regulations issued by the Department of Justice generally require public accommodations to modify policies, practices or procedures to permit the use of a service animal by an individual with a disability. [Modifications that conflict with legitimate safety requirements or fundamentally alter the nature of goods or services provided to the public are not required.]

The ADA broadly defines public accommodation to include a wide-range of private entities that conduct operations affecting commerce. So, there’s a good chance that this requirement applies to your business.

What is a Service Animal?

A service animal is defined as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual or other mental disability. The work or tasks performed by a service animal must be directly related to the individual’s disability, such as:

  • Assisting individuals who are blind or deaf;
  • Providing physical support or stability to individuals with mobility disabilities; and
  • Helping persons with psychiatric and neurological disabilities.

Dogs that provide emotional support, well-being, comfort or companionship are not considered service animals because they are not individually trained to perform a specific job or task. Other species of animals, whether wild, domestic, trained or untrained, are not service animals for the purposes of this definition.

Fun Fact: In some cases, a public accommodation may be required to let an individual with a disability use a trained miniature horse. Seriously.

What can you ask someone with a Service Animal?

If it’s obvious that an animal is trained to do work or perform tasks for an individual with a disability, you’re generally not allowed to ask anything. This would be the case if a dog is observed guiding someone who is blind or pulling someone’s wheelchair. If it’s not obvious, then you’re allowed to ask two, and only two, specific questions.

  • Is the animal required because of a disability? (But, you cannot ask about the nature or extent of a person’s disability.)
  • What work or task has the animal been trained to perform?

You cannot require or request proof that a dog has been certified, trained or licensed as a service animal, which doesn’t really matter because anyone can buy certification and registration documents online. It also doesn’t matter because these documents do not convey any rights under the ADA and are not recognized by the DOJ as proof that a dog is a service animal.

A growing number of states have actually passed laws in response to people lying about service animals. For example, in 2015, Florida made it a crime to knowingly and willfully misrepresent yourself as being qualified to use a service animal

Here are a few other things worth knowing about service animals.

  • Service animals don’t need to be professionally trained.
  • Service animals that are not housebroken or out of control can be asked to leave.
  • Any breed of dog can be a service animal.
  • Restaurants and bars are not required to permit service animals on chairs or tables.
  • State-specific laws, which can vary significantly, may also govern the use of service dogs in public accommodations.

Things can go very wrong very fast when service animals are not handled properly. They often require a delicate touch. Businesses that don’t know or follow the law governing service animals face potentially devastating reputational and financial harm.

Please contact us if you would like more information about insurance designed to protect your business…just in case.

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Up In Smoke? Clearing the Workplace Haze of Medical Marijuana

Marijuana, the most commonly used illicit drug in America at home and in the workplace, is earning respect from mainstream citizens who support its ‘legalized’ use for medical reasons. If estimates are true, and millions of workers are stoned on the job, the question and concern is: how many of these users will move to legitimize their use of the drug, on the job, and what impact will its use have on the productivity and quality of the American worker.

Legalized marijuana has sparked a new concern for employers that can’t simply be passed around until it burns out. While it may be a bit early to draw any conclusions, there are some facts and myths that should put an employer’s mind at ease, and yet, others that will require employers to proceed with caution (particularly when state and federal law are in conflict).

Myth: It’s not illegal to use medical marijuana if your state allows it.

Fact: Federal law supersedes state law, and marijuana is illegal under federal law. It’s in the same category as heroin and cocaine.

Myth: Employees legally using medical marijuana (under state law) are protected by the Americans with Disabilities Act (ADA).

Fact: The ADA generally does not protect current users of drugs that are illegal under federal law, like marijuana. But, employees using medical marijuana may still suffer from a disability that is protected by the ADA. If medical marijuana comes up, employers should engage in the interactive process to determine whether the employee may be entitled to a reasonable accommodation that does not involve marijuana use.

Myth: The legalization of medical marijuana will not affect my business or workplace.

Fact: Sooner or later, most businesses will be affected by the legalization of medical marijuana. In some cases, accommodating the use of medical marijuana can have unexpected consequences. For example, it may violate applicable federal laws or regulations, like DOT requirements for safety-sensitive positions or OSHA requirements to provide a safe working environment. And, if an employee using medical marijuana hurts someone else, the employer may be sued for negligent hiring, retention or entrustment.

More myths and facts will emerge now that the marijuana debate is burning at both ends. Until the picture gets clearer, employers should proceed cautiously. In the meantime, employers should consider Employment Practices Liability Insurance to protect against inadvertent violations.

Please contact us if you would like to learn more about protecting your business against employment-related liabilities. To receive regular updates about developments which may affect your business, subscribe to Setnor Byer Insurance & Risk’s weekly risk management news brief

What Does Florida’s New Medical Marijuana Law Mean for Employers?

Florida has joined the growing number of states that regulate and permit the medical use of marijuana after more than 6.5 million Floridians voted to approve Amendment 2. As a result, the Florida Constitution now includes the right for people with one or more of the following Debilitating Medical Conditions to use marijuana if such use has been certified by a physician:

  • Cancer;
  • Epilepsy;
  • Glaucoma;
  • Positive status for human immunodeficiency virus (HIV);
  • Acquired immune deficiency syndrome (AIDS);
  • Post‐traumatic stress disorder (PTSD);
  • Amyotrophic lateral sclerosis (ALS or Lou Gehrig’s disease);
  • Crohn’s disease;
  • Parkinson’s disease;
  • Multiple sclerosis; or
  • Other debilitating medical conditions of the same kind or class as or comparable to those enumerated.

The use of medical marijuana requires written certification from a licensed physician that in the physician’s professional opinion, the patient suffers from a debilitating medical condition and that the medical use of marijuana would likely outweigh potential health risks. The certification, which must state the recommended duration of use, may only be provided after the physician has conducted a physical examination and fully assessed the patient’s medical history.

Amendment 2 becomes effective on January 3, 2017. (An amendment without a specific effective date becomes effective on the first Tuesday after the first Monday in January following the election.) As of the effective date, the Florida Department of Health has six months to issue procedural regulations and nine months to begin issuing identification cards and registrations to those who qualify for the medical use of marijuana.

The extent to which Amendment 2 may affect employers is uncertain. However, there are limits to how far employers must go to accommodate the medical use of marijuana. For example, Amendment 2 expressly states that it does not require any accommodation for the on‐site medical use of marijuana in any place of employment or for smoking medical marijuana in any public place. It also doesn’t require health insurance providers to reimburse expenses related to the medical use of marijuana.

Perhaps the most significant limitation of Amendment 2 comes from the fact that marijuana is an illegal drug under federal law, regardless of what the Florida Constitution provides. This is important because the Americans with Disabilities Act does not cover individuals who are currently using drugs that are illegal under federal law. As a result, the protections afforded to qualified individuals with disabilities under the ADA do not apply to the use of medical marijuana even if it is legal under Amendment 2.

Another aspect of the state vs. federal distinction may limit the impact of Amendment 2 even more. Since 2013, the U.S. Department of Justice’s policy has been to defer the right to challenge state marijuana legalization laws. This voluntary hands-off policy may change under the new administration.

Despite these limitations and uncertainties, employers can start the process of adapting to Amendment 2 by updating handbooks and policies to clarify that the use of any illegal drug, including the medical use of marijuana pursuant to a physician’s certification, is strictly prohibited. Until procedural regulations are issued, employers should proceed cautiously when it comes to medical marijuana.

Since the likelihood of inadvertent violations can increase dramatically when the law changes, employers should consider Employment Practices Liability Insurance to protect against the financial consequences associated with employment-related claims. Please contact us if you would like to learn more about protecting your business with employment practices liability insurance.

To receive regular updates about developments which may affect your business, subscribe to Setnor Byer Insurance & Risk’s weekly risk management news brief.