The ADA is Turning The Big 3-1, but There is Still Little Guidance on Long COVID and Title I of the ADA

Happy anniversary to the Americans with Disabilities Act (ADA) which turns thirty-one this year. To celebrate its anniversary President Biden is “bringing agencies together to make sure Americans with long COVID, who have a disability, have access to the rights and resources that are due under the disability law.” According to President Biden, this “includes accommodations and services in the workplace, in school, and our health care system so they can live their lives in dignity and get the support they need as they continue to navigate these challenges.” The Department of Health and Human Services (HHS) jointly with the Department of Justice (DOJ), as well as the departments of Education and Laborshutterstock_212097706 (1), have released guidance explaining that long COVID can be a disability under various federal civil rights laws, including the ADA.

“Long COVID.” “Long-haul COVID.” “Post-acute COVID-19.” “Long-term effects of COVID.” “Chronic COVID.” For clarity, all of these terms refer to new or ongoing symptoms experienced by some people after first being infected with COVID-19 and they are generally referred to as COVID long-haulers. Approximately 30% of COVID positive patients are COVID long-haulers and reported continued symptoms as long as nine months after their initial confirmed positive, according to a study published in JAMA Network Open in February. According to the CDC, symptoms may occur regardless of the severity of the COVID illness and include difficulty breathing or shortness of breath, fatigue, sleeping problems, fevers, gastrointestinal issues, anxiety and depression, dizziness on standing, and “brain fog.” Some people who had severe COVID-illness may experience multiorgan effects or autoimmune conditions over a longer time with symptoms lasting weeks or months after COVID-19 illness. Finally, some who were hospitalized as a result of their COVID illness may suffer health effects during their recovery like severe weakness and exhaustion.

The guidance issued by HHS and DOJ addresses Continue reading

The State of the Law Regarding Marijuana, Drug Testing and Background Checks [Webinar Recording]

On July 13, 2021, Dan Deacon, Aaron Gelb, and Ashley D. Mitchell presented a webinar regarding “The State of the Law Regarding Marijuana, Drug Testing and Background Checks”.

CaptureThe green wave continued to roll through America during 2020, as several new jurisdictions legalized marijuana in some form. However, new regulatory developments regarding medical and recreational marijuana have created a host of compliance concerns for employers. 35 states and the District of Columbia have passed legislation giving medical marijuana usage the green light. Fifteen states and the District of Columbia have legalized recreational marijuana. Several states have also enacted laws making the possession of small amounts of the drug a civil, not criminal, offense. Although marijuana is currently still illegal under federal law, for the first time in fifty years, a bill was introduced in the U.S. House of Representatives to remove marijuana from the Schedule I controlled substances list in the Controlled Substances Act. In sum, it seems to be only a matter of time before marijuana is legalized in some form throughout the entire country.

This webinar explored the changing legal landscape concerning marijuana, analyzed potential issues related to zero-tolerance policies, and reviewed tips for developing effective drug testing and background check policies. More specifically, participants learned: Continue reading

How to Avoid a $100 Million Dollar ADA Verdict and Other Lessons Learned at Wal-Mart’s Expense

Last week, a federal jury ordered Wal-Mart to pay Marlo Spaeth, an employee with Down syndrome, $125 million in punitive damages and $150,000 in compensatory damages for failing to accommodate her disability and terminating her employment.  While it would be easy to write-off this verdict as a runaway jury trying to send a message to a company which is, by far, the largest private employer in the United States, there are still lessons to be learned here that apply to employers of all sizes.  Whether you employ 150; 1,500 or 1.5 million people, failing to handle employee requests for accommodation (a plea for help, really) in a thoughtful, humane matter has the potential to blow up in your face in a spectacular fashion.

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EEOC Updates COVID-19 Vaccination Guidance

By Conn Maciel Carey’s COVID-19 Task Force

Last week, Conn Maciel Carey posted a blog article about How to Navigate the Thorny Legal Landscape Around Employee Vaccination Status.  One of the observation in that article was that we were all on the edge of our seats waiting for the EEOC to issue promised guidance about employer incentives and mandates about the COVID-19 vaccination.  On Friday, the EEOC finally issued much-anticipated updated FAQs about the legal landscape of various employer vaccinations policies.

Here is a summary of the vaccine section of the guidance:

May employers ask employees about vaccination status under federal law?  See FAQs K9, K5, K15, K16, K18, K19

  • Yes – does not violate ADA or GINA.
  • However, employer should not ask “why” an employee is unvaccinated, as this could compel the employee to reveal disability information that is protected under the ADA and/or GINA.
  • Recommended practice: If employer requires documentation or other confirmation of vaccination, “notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis.”

Is vaccination information “confidential” under the ADA?  See FAQ K4

  • Yes, this includes documentation (i.e., the white vaccination card)  or “other confirmation” of vaccination, which we presume means any self-attestation form or email from the employee, as well as any record, matrix, spreadsheet, or checklist created by the employer after viewing employees’ vaccination cards or receiving a verbal confirmations from employees.
  • The records or information must be kept confidential and stored separately from employee personnel files.

How may employers encourage employees and family members to get vaccinated?  See FAQ K3 Continue reading

ADA Website Compliance Issues – Best Strategies for Employers [Webinar Recording]

On Tuesday, May 18, 2021, Jordan B. Schwartz and Megan S. Shaked presented a webinar regarding ADA Website Compliance Issues – Best Strategies for Employers.

CaptureThe pandemic has not decreased the number of lawsuits filed against businesses, hotels, and other places of public accommodation alleging violations of the Americans with Disabilities Act (“ADA”). Indeed, dozens of lawsuits continue to be filed daily against hotels for their failure to identify and describe accessible features at their properties in sufficient detail on their websites. In a relatively new twist, many of these lawsuits now also allege that hotels are fully liable for the failure of Online Travel Agencies such as Orbitz or Expedia to provide information on their website about the accessible amenities of the hotel, including its guestrooms, or to allow an individual with a disability to book an accessible guestroom.

While many ADA lawsuits also continue to be filed alleging that hotel websites cannot be used by individuals with visual or hearing impairments, there is positive news in that regard, Continue reading

[Webinar] ADA Website Compliance Issues – Best Strategies for Employers

On Tuesday, May 18, 2021 at 1:00 p.m. EST, join Jordan B. Schwartz and Megan S. Shaked for a webinar regarding ADA Website Compliance Issues – Best Strategies for Employers.

CaptureThe pandemic has not decreased the number of lawsuits filed against businesses, hotels, and other places of public accommodation alleging violations of the Americans with Disabilities Act (“ADA”). Indeed, dozens of lawsuits continue to be filed daily against hotels for their failure to identify and describe accessible features at their properties in sufficient detail on their websites. In a relatively new twist, many of these lawsuits now also allege that hotels are fully liable for the failure of Online Travel Agencies such as Orbitz or Expedia to provide information on their website about the accessible amenities of the hotel, including its guestrooms, or to allow an individual with a disability to book an accessible guestroom.

While many ADA lawsuits also continue to be filed alleging that hotel websites cannot be used by individuals with visual or hearing impairments, there is positive news in that regard, as a recent business-friendly ruling out of the Eleventh Circuit Court of Appeals may make it more difficult for plaintiffs to bring claims against companies for inaccessible websites. That being said, this ruling conflicts with rulings from other circuits that reach the opposite conclusion and thus, a supreme court review of this issue may be brewing. Regardless, it remains important that businesses ensure the accessibility of their websites while also providing an appropriate “accessibility statement” explaining to users the steps you have taken to improve your website’s accessibility.

Unfortunately, there is no sign that ADA lawsuits are slowing down. On the contrary, serial plaintiffs continue to file dozens of these lawsuits each and every day. This presentation will present practical tips and cost-effective strategies for managing the risk of ADA-related litigation in this ever-evolving area of the law.

Participants in this webinar will learn:

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CDC Drops Mask and Distancing Requirements for Fully Vaccinated Individuals — What About the Workplace?

By Conn Maciel Carey’s COVID-19 Task Force

By now you have likely heard the big news that yesterday, May 13th, the CDC updated guidance related to masks and physical distancing for individuals who are fully vaccinated (i.e., two weeks after receiving a single-dose vaccine or after the second dose in a two-dose series).  Specifically, in its updated guidance — “Interim Public Health Recommendations for Fully Vaccinated People” — the CDC now says fully vaccinated individuals may resume essentially all indoor and outdoor pre-pandemic activities in almost all circumstances.  As of now, there is no outside limit to one’s status as fully vaccinated.

In a public video released just before the CDC posted its updated written guidance, CDC Director Dr. Walensky shared that “based on data about vaccine effectiveness and the low risk of transmission to others, and universal access to vaccines today, the CDC is updating our guidance for fully vaccinated individuals.  Anyone who is fully vaccinated can participate in indoor and outdoor activities—large or small—without wearing a mask or physical distancing.”  Even in the case of “breakthrough” infections, Dr. Walensky acknowledged that there is likely low risk of transmission to others.  Dr. Walensky cautioned that “over the past year, we saw how unpredictable this virus can be, so we may have to change these recommendations if things get worse.”

The question everyone is asking is whether this updated guidance applies to employees and workplaces.  The best answer we can give now is that the guidance does technically apply to workplaces, but there is a significant exception relative to workplaces built into the new guidance that swallows most of the relief it purports to provide, at least for now in many jurisdictions. Here’s our analysis about why this new guidance does apply to workplaces, but how geographically limited the relief is for the time being. Continue reading

Court Concludes That A Business’s Website Does Not Need To Comply With The ADA

New,Technologies,,A,Side,View,Of,An,Open,Laptop,,MillennialsWe have been blogging for more than five years about the rising litigation threat over website accessibility, and the surrounding confusion about what type of compliance, if any, is required.  In our initial blog post on this topic in January 2016, we stated that the question as to whether a business’s website and mobile app needed to be accessible with the Americans with Disabilities Act (“ADA”) had no definitive answer at that time because (i) although Title III of the ADA prohibits discrimination against individuals on the basis of disability with regard to their participation and equal enjoyment in places of public accommodation, the statute did not explicitly define whether a place of public accommodation must be a physical place or facility; (ii) there were no regulations from the Department of Justice (“DOJ”) (the federal agency that enforces Title III of the ADA) regarding website accessibility and without applicable regulations, it was unclear how a court would address a lawsuit over website accessibility; and (iii) adding to this uncertainty, the DOJ had emphasized that, despite the lack of regulations, businesses should make websites accessible to the disabled, and relied on a set of guidelines called the Web Content Accessibility Guidelines (“WCAG”).

Five years later, this question still has no definitive answer.  And, the DOJ still has yet to promulgate regulations regarding businesses’ obligations to make websites accessible to individuals with visual and hearing impairments.  In April, however, an extremely positive development occurred for businesses when, in the matter of Gil v. Winn-Dixie Stores Inc., the Eleventh Circuit Court of Appeals (which covers Florida, Georgia, and Alabama) held that websites are NOT places of public accommodation and thus are NOT covered by Title III of the ADA.

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Things Employers Should Consider as the $15 per hour Minimum Wage Gains Traction

The $15 per hour minimum wage is not a new idea, although a minimum wage increase under the Fair Labor Standards Act has garnered new attention in recent months. Raising the minimum wage was one of President Biden’s campaign promises and both the House and the Senate have re-introduced legislation to raise the federal minimum wage. Some states, like California, Connecticut, Illinois, and New York are already on track to have a $15 per hour minimum wage by 2025. But what does all this mean for employers? According to a recent Congressional Budget Office study increasing the federal minimum wage would raise the wages of at least 17 million Americans. Therefore, employers should begin thinking about how the progressive increase of the minimum wage will impact their resources.

The Fair Labor Standards Act (“FLSA”) dictates the federal minimum wage, rules surrounding overtime pay and hours worked, and recordkeeping requirements. Two types of employers are covered under the FLSA: enterprises and individuals. Enterprises have at least two employees and are (1) those that have an annual dollar volume of sales or business done of at least $500,000 or (2) hospitals and businesses providing medical or nursing care for residents, schools, and preschools, and government agencies. Individuals are employers whose employees are engaged in work that regularly involves interstate commerce. Executive, administrative, and professional employees (including teachers and academic administrative personnel in elementary and secondary schools) are FLSA minimum wage and overtime exempt provided they are paid at not less than $684 per week on a salary basis. These salary requirements do not apply to outside sales employees, teachers, and employees practicing law or medicine. This exception is commonly referred to as the white collar exception. Other minimum wage and overtime exemptions include creative professionals, computer employees, and highly compensated individuals.

If the $15 per hour minimum wage legislation passes, employers may consider making hourly employees who would otherwise be FLSA exempt salaried. There are several benefits to be gained if those employees were correctly classified as minimum wage and overtime exempt. First, predictable wages. Hourly employees who work more than 40 hours per week are entitled to 1.5 times their regular rate of pay for each additional hour worked. If the $15 per hour minimum wage passes, that would be an overtime rate of pay of $22.50 per hour. Salaried white collar employees are not subject to the same overtime pay. Second, the elimination of recordkeeping. Employers must keep a record of all hours worked by their hourly employees. For about the past year, many white collar employees have tele-worked due to the ongoing COVID-19 pandemic. Tele-work has made it challenging for employers to keep track of employee hours worked. Whereas before an employee may have used a daily timeclock located inside the office, now employers have had to come up with creative solutions to comply with the FLSA recordkeeping requirement. With many companies predicting that even after the pandemic tele-work may still be available at least one day a week for all white collar employees, correctly classifying white collar employees as exempt by making them salaried eliminates the need to keep track of employees’ working hours.

Employers who do consider changing their white collar employees from hourly to salaried should exercise caution. The U.S. Wage and Hour Division has outlined specific tests for every exempt employee category and employers do not want to run the risk of misclassifying employees as it could result in a lawsuit. Furthermore, employers should make sure that the decision is made equitably so as not to run afoul of other labor and employment laws like Title VII and The Americans with Disabilities Act. Ultimately, the decision of whether to make an otherwise FLSA exempt hourly employee salaried should take into account the employer’s resources and be made with the assistance of legal counsel.

Announcing Conn Maciel Carey’s 2021 Labor and Employment Webinar Series

2021 Labor and Employment Webinar Series

The legal landscape facing employers seems as difficult to navigate as it has ever been.  Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or  business owner.  Change appears to be the one constant.  As President Trump’s Administration comes to an end, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC.  At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.  This complimentary webinar series will focus on a host of the most challenging and timely issues facing employers, examining past trends and looking ahead at the issues most likely to arise.

Conn Maciel Carey’s complimentary 2021 Labor and Employment Webinar Series, which includes (at least) monthly programs put on by attorneys in the firm’s national Labor and Employment Practice, is designed to give employers insight into legal labor and employment developments.

​To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2021 series, click here to send us an email request, and we will register you. If you missed any of our past programs from our annual Labor and Employment Webinar Series, click here to subscribe to our YouTube channel to access those webinars.


2021 Labor & Employment Webinar Series – Program Schedule

California Employment Law Update for 2021

Wednesday, January 20th

Marijuana, Drug Testing and Background Checks

Tuesday, July 13th

COVID-19 Vaccine: What Employers Need to Know

Thursday, February 11th

Employee Misconduct Defense & Employment Law

Wednesday, August 11th

Employment Law Update in D.C, MD, VA and Illinois

Wednesday, March 24th

Employee Handbooks, Training and Internal Audits

Tuesday, September 21st

Withdrawal Liability Pensions

Wednesday, April 14th

NLRB Update

Tuesday, October 19th

ADA Website Compliance Issues –  Best Strategies for Employers

Tuesday, May 18th

Avoiding Common Pitfalls: Non-Compete, Trade Secrets and More!

Wednesday, November 10th

What to Expect from DOL Under the Biden Admin.

Wednesday, June 16th

Recap of Year One of the Biden Administration

Tuesday, December 14th

   

See below for the full schedule with program descriptions, dates, times and links to register for each webinar event.

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