Americans with Disabilities Act (ADA) – Setnor Byer Insurance & Risk

Can Employers Make the COVID-19 Vaccine Mandatory for Employees Under the Americans with Disabilities Act?

Setnor Byer Insurance & Risk

The COVID-19 vaccines provide a glimmer of hope as new cases surge nationwide. It also raises some interesting questions for employers. How, for example, will the vaccine’s increasing availability be viewed in the context of the Americans with Disabilities Act (ADA)? Can employees be required to provide proof of vaccination? Can employers make COVID-19 vaccines mandatory for employees? Fortunately, the Equal Employment Opportunity Commission issued updated guidance to help employers answer some COVID-19 vaccine-related questions that are likely to arise in the near future.

Is asking or requiring an employee to show proof of COVID-19 vaccination a disability-related inquiry under the ADA? According to the EEOC, no. Simply requesting proof of vaccination is not likely to elicit disability-related information, so it’s not a disability-related inquiry. However, the EEOC cautions that subsequent questions (Why didn’t you get vaccinated?) may elicit information about a disability and would need to be job-related and consistent with business necessity. The EEOC recommends warning employees not to provide any medical information as part of the proof in order to avoid implicating the ADA.

How should employers respond to employees who are unable to get vaccinated because of a disability? The ADA allows employers to protect against direct threats to workplace health or safety. However, if a COVID-19 vaccination requirement screens out or tends to screen out individuals with disabilities, the employer must show that an unvaccinated employee would pose a direct threat due to a significant risk of substantial harm that cannot be eliminated or reduced to an acceptable level by reasonable accommodation. Managers and supervisors responsible for communicating an employer’s COVID-19 vaccination requirement should know how to recognize and respond to accommodation requests. The EEOC urges employers and employees to engage in a flexible, interactive process to identify accommodations that do not constitute an undue hardship (significant difficulty or expense).

Though employers may rely on CDC recommendations when evaluating reasonable accommodations, the EEOC concedes that an accommodation may not be possible in some situations. If that’s the case, the employer may exclude the employee from physically entering the workplace, but the employee should not be automatically terminated. According to the EEOC, employers must first determine whether the employee is protected under any other provision of the ADA or other any other applicable federal, state or local law before taking any adverse action.

Determining if a direct threat exists and whether it can be eliminated or reduced with a reasonable accommodation generally requires an individualized assessment. Some situations may be black or white, but most will be different shades of gray. Employers may need to consult with counsel throughout the process to avoid unintentional, yet costly mistakes.

Please contact us for additional information about protecting your business during the COVID-19 pandemic.

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.

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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An Ounce of Prevention: What Employers Can Do to Keep Workers’ Compensation Costs Down

As a firm specializing in Workers’ Compensation defense, General Liability defense, and Employment and Labor Law defense, we have a bird’s eye view of the successful (and sometimes unsuccessful) practices of our clients. In this article, we offer preventative measures that can be utilized to minimize or mitigate workplace accidents and their associated monetary exposures.

As a general rule, any policy or procedure should be uniformly applied to all Employees, regardless of race, religion, gender, age, or any other protected factor. Failure to apply these provisions uniformly could result in violation of State, Federal, or Local law. As such, if you choose to adopt any of the following suggestions, it is imperative that they be applied without variation.

Perhaps the least expensive and most beneficial practice that a company can utilize is to conduct routine safety workshops. A safety workshop is an inexpensive method aimed at avoiding accidents. We recommend that you conduct safety workshops frequently, perhaps monthly, at which time you can review techniques for safe lifting, ergonomic workplace solutions, and applicable safety rules. To assist your supervisors and HR personnel, Setnor Byer Insurance & Risk, along with Kelley Kronenberg, can facilitate workers’ compensation workshops at your workplace that will specifically address your unique needs and will guide you toward implementing more aggressive and cost-effective practices that can prevent workplace accidents.

Often, injured workers are more apt to stay home if they perceive that the rewards for being out of work are potentially greater than for returning to work. In light of this trend, a useful suggestion for an employer is to establish a safety program. As a company, you may consider offering an incentive to Employees who are accident-free for a specified time period. This practice may also be used for Employees who have a perfect attendance record, thereby reducing frivolous time off for “sick days.” Feel free to contact Setnor Byer Insurance & Risk for additional support. Please note: To avoid disparate treatment or the appearance of impropriety, absences for workers’ compensation purposes, FMLA leave time, or leave provided to an Employee for accommodation of an ADA disability should not count against one’s attendance record in this incentive program.

Obtaining information (post-hiring) about an Employee’s medical history can also be quite useful. The names and contact information for a worker’s physicians can be obtained on your standard employment documents “to be used in the event of a medical emergency.” This information often provides valuable assistance should a workers’ compensation claim later be filed, as it is more likely that a pre-existing condition would have been revealed to a doctor prior to a work accident than after the work accident.

In this regard, we also encourage gathering information from Employees regarding pre-existing medical conditions. This information will be invaluable and may aid in the defense of a workers’ compensation claim, if provided on a timely basis, to the treating physician after an accident. Please be advised that the use of medical questionnaires is strictly governed by the Americans with Disability Act (ADA), and the failure to comply with the requirements of this law could create additional legal exposure for you as an employer.

Under the ADA, the types of questions asked of the Employee depends on the stage of the hiring process.

Stage One: Before a Conditional Job Offer is Made. The ADA permits you to show the prospective Employee a job description that describes the physical demands of the job, or to demonstrate the job and inquire whether the prospective Employee is physically able to perform the job function with or without an accommodation.
Stage Two: After the Job Offer but Before Employment Begins. The ADA permits the Employer to ask a prospective Employee to respond to a detailed medical questionnaire and to submit to a medical examination, if practical, as long as these are required of all Employees entering the job force within a particular job category.
Stage Three: After the Employee Has Begun Working. Among other things, the ADA allows employers to require a fitness-for-duty examination in situations in which the examination is job-related and consistent with business necessity.

The ADA is a complex set of laws-please seek legal advice prior to instituting procedures.

Obtaining information regarding the Employee’s physicians and prior medical care may prove beneficial should the Employee later have an accident. Thus, it is also imperative to know whether the Employee has sustained prior accidents and/or whether a prior workers’ compensation claim or lawsuit has been filed. To answer these questions, we recommend that an index search, background check, or a simple online search be conducted at the post-offer stage.

An index search typically will list any known accidents that the Claimant has had, including workers’ compensation claims and automobile/personal injury claims. The reports typically list parties with additional information regarding the claim, i.e. an Insurance Carrier, an Employer, or an insured individual. Often, we are able to subpoena records based upon the index search that greatly assist in limiting exposure. In fact, for some clients, we seek this information once an injured worker has an accident but before litigation has commenced. At an Employer’s request, we can open a “ghost file” and guide our clients from the sidelines in an effort to avoid unnecessary and costly litigation.

Consider the value of many of the public record search options that exist. A person’s name can be looked up on local civil and criminal case dockets, and much information can be garnered by looking at personal web pages such as flickr, myspace, and similar social networking sites. Small and seemingly insignificant details found today could save thousands of dollars should the Employee later file a claim seeking medical or indemnity benefits. In fact, in one case in which we served as defense counsel, the adjuster obtained pictures of a claimant riding and performing stunts on his motorcycle. The pictures were posted on the claimant’s myspace page and were taken after his alleged accident.

It is also useful to institute a daily or a weekly checkout system. You may wish to have Employees sign out on a daily basis and indicate whether they were in an accident, whether they witnessed an accident, or whether they were in need of medical treatment prior to or upon leaving. This is an excellent tool for defending against workers’ compensation claims that are reported late. It must be noted, however, that if an Employee feels coerced or threatened to document an accident, any defenses available will be undermined.

It is important to note that, in conjunction with a checkout system, you must designate an Employee to be responsible for reviewing these reports. If an Employee indicates an accident or injury on the report, such documentation will likely suffice as notice under the requirements of Florida Statute Section 440, even if the document has not been actually reviewed by a supervisor or another Employee of your company. In this regard, upon learning of an accident or injury, you must report this information to your Workers’ Compensation Carrier to avoid penalties for late reporting or exposure related to late provision of benefits.

It is strongly recommended that every employer establish a zero tolerance policy for violence, safety violations, and fraud. To complement this policy, we recommend that each Employee sign a form acknowledging that violence, safety violations, and fraud are grounds for immediate termination. Your safety documents should explain that a safety violation is considered a failure to comply with any company safety rules, established standards of safety for the industry, OSHA rules, or any rules promulgated by an applicable regulatory agency. For your protection, safety rules should also be set forth in your Employee Handbook, which should be adhered to and distributed uniformly.

It is also recommended that the Zero Tolerance Policy be posted in a place frequented by all Employees, such as a lunchroom or near the time clock. The policy may also be reiterated at staff meetings or in Company bulletins and newsletters.

Established in 1980, Kelley Kronenberg is one of the largest Insurance & Employer defense firms in the State of Florida. They have been a leader in Florida law since they began their practice and have maintained a strong presence in the legal profession since then. Kelley Kronenberg believes that their experience and stability serve as the basis for their firm’s success. In addition, they know that their high standards are constantly complemented by their long-standing philosophy that every attorney is trained with an eye toward cost-effectiveness on behalf of their clients, along with exemplary customer service.

® 2008, Kelley Kronenberg. Reprinted with permission.

Oh No, I Have Been Served! – Unlawful Discrimination Lawsuit

The day was progressing like any other – putting out fires, monitoring production, cultivating new business – until the receptionist announced the presence of an unexpected visitor. The hand you held out for an introductory shake was met with a bundle of paperwork. The confusion created by the unanticipated delivery was momentarily clarified when the visitor mumbled a few parting words: “You’ve been served.”

A brief scan of the documents revealed that a former employee filed a lawsuit in federal court alleging unlawful discrimination. The expected stream of emotions soon followed: bewilderment, denial, fear, anger, and finally pragmatism. Something needs to be done, and since an answer to the complaint must be filed within 20 days, contacting an attorney must be near the top of the list.

Unfortunately, defense attorneys do not typically handle cases on a contingency-fee basis. Rather, they bill their time hourly, and while many attorneys provide a complimentary phone call, the meter typically starts running shortly thereafter. Clients are ordinarily expected to cut a substantial retainer check before any steps are taken to mount a defense.

Needless to say, defending against an employment practices lawsuit, such as one alleging discrimination or harassment, is a costly proposition. Even if the employer wins the lawsuit, the outcome of the experience will likely be viewed as a loss. The bill for attorneys’ fees alone will invariably cause financial harm to an organization. For those already struggling through difficult economic times, the harm may be irreversible.

The employer in this hypothetical situation has no choice but to deal with the imminent present since nothing can be done to change the past. However, for those cringing at the thought of personally experiencing this situation in the future, there is one thing that can be done to alter the experience – obtain employment practices liability insurance (EPLI).

EPLI protects employers in the event of such workplace claims as discrimination, wrongful termination, and sexual harassment, as well as other civil wrongdoings, such as wrongful demotion, failure to promote and discrimination by third parties (i.e., clients). Generally, a policy covers eligible losses stemming from such causes of action, as well as associated litigation costs, including attorneys’ fees. And the insurance company will provide the services of attorneys who specialize in defending against such claims, thereby significantly increasing the likelihood that employers will prevail in the event litigation does occur.

Yet, despite these obvious and valuable benefits, many organizations choose to forego purchasing EPLI. Those responsible for protecting their organization from the risk of loss have plenty of reasons for deciding not to purchase EPLI. However, upon closer examination, it is clear that the security afforded by these reasons is illusory. Let’s take a look at a few.

None of my employees would ever sue me. Let’s assume that this is true (although we know it isn’t). Did you know that several equal employment opportunity laws, such as Title VII and the Americans with Disabilities Act, also protect applicants? While some organizations may take comfort in the belief that their employees would never sue, such a perception does not address, much less protect against, the possibility of an employment practices lawsuit being filed by an applicant. Needless to say, those relying on the charity of strangers for security have a significant hole in their risk management umbrella.

Our organization complies with all employment laws. There is little doubt that most organizations have every intention of complying with applicable employment laws, and that they, in fact, make a good faith effort to do so. Unfortunately, this reasoning incorrectly assumes that lawsuits are only filed by those who were actually victims of an unlawful employment practice. In reality, many employers are ultimately found to have not violated the law, yet they were still required to defend their actions in court. Undertaking a defense is expensive, and from a purely economic standpoint, vindication through the judicial system is rarely worth the price of admission.

It can’t happen to me. Clearly, this age-old rationalization is as wrong in this context as it is in everyday life. According to the Equal Employment Opportunity Commission, the number of employment related claims is on the rise. Hence, it is not only happening, but it is happening in greater numbers. While this increase in claims may be attributed to several factors, including a struggling economy or corporate cutbacks in HR training and monitoring, there is good reason to believe that the increase will continue well into the future.

Consider that the ADA Amendments Act broadened the scope and applicability of the Americans with Disabilities Act. Since more people qualify as disabled under the amended law, more people will be entitled to the ADA’s protection. In practice, this signals the existence of a new and significant risk exposure – an ADA lawsuit – that may not have previously existed. Therefore, the likelihood of falling victim to an employment practices lawsuit is greater now than it was then.

We are a small operation so we don’t have to worry about employee lawsuits. While employee lawsuits brought against large companies make the headlines, smaller operations should be equally concerned about being sued for an unlawful employment practice. Compared to large corporations, many smaller organizations operate casually and informally. While a collegial atmosphere can make for a more relaxed workplace, it may increase the likelihood that behaviors are not properly monitored or that policies are non-existent or loosely applied. Moreover, smaller organizations often do not have the budget or infrastructure to ensure the proper handling of human resources. Since these factors almost invariably lead to lawsuits, smaller organizations are prime candidates for EPLI.

We have an excellent HR department that ensures compliance with all equal employment opportunity laws. While placing an emphasis on human resources can go a long way toward reducing the risk of being sued for an unlawful employment practice, it is by no means a guarantee. Two things merit discussion on this point. First, unlawful employment practices occur despite top-notch HR departments. Consider that a well-known, publicly traded clothing retailer paid approximately $50 million to settle a class-action discrimination lawsuit despite what was surely a well-qualified HR department. Furthermore, it is important to acknowledge that efforts of the HR department do not always filter down to the entire workforce.

Second, in some situations, the risk of violating an equal employment opportunity law cannot be reduced by the HR department. The recent amendments to the Family & Medical Leave Act’s regulations provide a good example. Until the precise scope and applicability of the regulations are determined by the courts, employers are operating with their best guess as to what the regulations actually require. Unfortunately, this means that some employers, regardless of the quality of their HR department, must defend their actions in court, often at great expense. This reality underscores the importance of EPLI.

There is no room in the budget for EPLI. Certainly, budgetary constraints are always a valid consideration. While many view the premium for EPLI as the budgetary figure worthy of consideration, the real figure is the amount that will have to be paid out in the event a lawsuit is filed. How do the attorney’s fees and the plaintiff’s judgment fit into the budget? A realistic approach to the budget should consider the potential cost of not obtaining EPLI rather than the cost of the premium. When such a calculation is undertaken, purchasing EPLI is almost always considered a smart investment.

Although there are many reasons for not purchasing EPLI, once a lawsuit is filed, all of those reasons lose whatever merit they may have once had. There is a world of difference between personally dealing with (and paying for) the defense of an employment practices lawsuit versus forwarding the papers to the insurance company. One option is not only cheaper, but it provides a peace-of-mind that allows the organization’s focus to remain on the continued successful operation of the business. Needless to say, the alternative is much, much worse.

If you would like more information about EPLI, please contact us.